New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-16
THE PRoHBIToRY Law AGAIN.

To W Editor II TAeN \. Tribune
SIR: II you are no; weared yet with tho discus,o,
of questions raised upon the provisions Of the Pa,
hibitory Law in advance Of judicial decisions Of TIA
Superior Courts will bring to your notice an 81
thority in support Of the first position taken by me IN
the opinion published few days ago in Tan Tai
BUNE.
When prepared that letter | was confden, thai
the case t. which refer existed, but could not sac
coed then in finding it although devoted some hogs
e. the search.
In The People vs.. Townsey" 18th DEMO, 7Ol IA.
defendant indicted in the City Of Brooklyn fora
misdemeanor in selling strong and sprituous Liquors
without having obtained license. The indictmeu,
was found in the year 1896 before the repeal Of Tie
statute enacted in the year lsi5 submitting the quo
ton Of License or No License TO the electors Of the
several towns.
The City Of Brooklyn had voted No License, AMI
the cause was tried after the act Of isi5 had been ~
pealed.
On his trial the defendant insisted,
First. That the act of lsl5 repeal By iapica.
ton Of the penal sections Of the Revised Statutes.
Second, That the indictment is framed under Ii,
act of 1915 and that act having been repealed IA
lsi7 the prosecution must fall
7Hird. The oifense created by the act of ist5a
not indictabe.
All OF these points were decided against the defend
ant in the Court OF General Sessions and he con
victod. He carried the cause by Certiorar TO The
Supreme Court for review, and the judgment was
affirmed. In this place il is important 10 consider
only the first point, and that no doubt may exist 70
specng tho opinion of the Court upon it, will give
il in the words of Mr. Justice Whit,eIsey, who pro-
nounced the Judgment.
If the act of lsfj a. to the towns in which Il s
operative BY the prevailing vote of No License 50
reveal by implication Of the Excise Law OF 1890 then
this conviction could only have been under the set Of
lsi5; and that being repealed a. before mentioned
the effect is TO annul the proceedings on this indici
ment. An examination Of these different laws g
therefore necessary. Title of Chapter 30 Part l, "
the Revised Statutes relates 10 excise and the regu
tons of tayerns and groceries II X. ). 6T1 II de
clares WHO shall be- Commissioners Of Excise in the
several towns and gives them Discretionary power 10
grant licenses 10 nkeepers and Others 10 sell strong
and sprituous liquors and wines 10 be drunk 10 Their
houses and to grOcers TO sell such liquors and wines
in quantities less than FIVE gallons, but not 10 be
drunk in their houses or about their premises sec
IL. Ii then gives penalty OF ss5 ior selling any
strong or spiruOus liquors or any wines in any qnan
tty less than five gallons nj time without hceaS
therefor sec. Isl and ike penalty for selling any
such liquors or wines to be drunk in the house, &er
without having obtained license a. a tayern-keeper
tons 10 punish evil conduct in tavern-keepers ai
grocers The penalties are to be sued for and recoy
cred by the Oyerseers of the Poor Of the town. e.
cept whore special provision IL made Sec 19l. All
ofeuses against the provisions Of this title are mss
misdemeanors, punishable by fine aud imprisonmeu.
sec. 2ej.
The act Of lsi5 enables the electors Of each town %
determine By their votes whether tie discretionuf
power vested 10y the Revised Statutes in the Com.
missoners OF Excise to grant licenses to grocers and
hall a.I
If a majority of the electors vote License" then ihs
power Romans with the Commissioners Of Excise a
before, and the title OF the Revised Statutes is una
tered. Ii majority Of the electors vote for No
" License the Discretionary power which tho Re.
vsed Statutes gave to the Boards Of Excise Is wholly
taken away, and they are prohibited from granting
any such license Sec 3. II ne act had s,0Dped k<rs
ne Consequence r0Eid hare beeAUofso much Of Ttks
as sire' P9Ner 10 or a@th9rises he Board Of Ereg
70 grant hceHses r0Hlf hare ben repeated or sE.
pcHGed qHodd such torn. TIE Boards Of Exc,V
could not hare granted any hesHsS and all ne
pr0risi0Hs f0r me regulation Of grOccrs and LarerE
hoPrs' AFTER beiHg hceHsef, c0sid hare JeeH nmDly
fHgppfcGtfc and useless. There could hare Lga 10
liossed gr0cers farera-keepers 70 cko flsv oouA
0FPiy. me Pf0rtsf0Hs 81 title 3. prOhfbifiAg N
safe 81 liquors and all me o0HsequeHcs, Of rto,ftag
those Prortsloa' rould hare renamed ritoI and
AFFECTED. ~ FIJI farce and OPERATION and ne eoRs.
qHcHce c0Hfd hare been hat erery one rho so Iguon
ia such f0sH ~ qHaHffes less than IRE gallon, al on
fiWe rOafd hare been faJe 70 Deaalfg Of AS naLT
ne lon 'eeiioE, and 70 an indictment for msSs.
medR0T under the .-k section Of that fifS Tho seu.
Ing Liquor 10 be drunk IN tie house &c womb have
been useless qualification Of the otfense or one
which Y would have been unnecessary 20 take notice
o. a. tie simple act Of selling would OF self const.
'ute the onense ltseems 10 me that this Is precisely,
or nearly the result al which tie Legislature INTENDED
70 arrive by the passage Of the act and fearing that
they had not indicated such intention with sufficient
olearnecs they inserted the 5h section of the act Of
l-45, TO make such intention more apparent BY
g Ens. or DOLE 81. h
lave thus determined that no license shall b. zraaied
whoever shall rel BY retail any iatO1icatnQ or spirit.
nous liquors wines shall b. liable 20 all tie penalties
imposed by the title Of the revised statute. 70 which,
have referred, for selling spiri,uous liquors Or wins
without license. II seens thus la effect 70 say that
though the said title s repealed or suspended a. 70 the
over 70 tenSe, i l. not % be considered repealed
uspended a. to toe prohibition to sel without ].
cense, but leaves tla the same ofense and punish.
able IN tie same manner ~ before The section uses
the phrase selling By retail instead Of ceiling in qass.
tics kcs than i've gallons, a. used in the Revisit
Statutes, sin uaes fHtorIcofin or sl,uOus hqugr,
instead Of strong or sp'rituous liquor
This statute can hardly be said to create a new o.
Tense Selling by retail Is quite indefinite but hs
generally understood 10 selling in quantities ss
than I'VE sslons az the old law defined H. Il may
be thu the prohibition Of the sale Of mtOrIcat-
liquoN may extend 10 cider and other drinks exPres
y excepted by the former excise law n r. 81
$40 and far create a new ohense: but az TO ne
sale Of liquors denominaied spiriiuous, the Reysea
Statutes, with their prohibitions their penalties saa
their punishments, were intended by this sei 70 o.
kept IN force. In regard to the sale Of sPnt1o1,
Liquors. the Act OF ls45 operates As sort Of sdi1g
scale upon the Old excise lawn one contingency
leaving more and in another less OF the old law oPes
tive; but the law that Is operative, whether mefs
less, that Of leo. If this construction Of the AS
si5 correct il disposcs OF the questions disc ~
the counsel FOR the defendant The ofense, inc
dctmeni and the mode Of punishment mus Dc -
prescribed By ,hs Revised s,si2iesi and ~ o0s'"