New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-08-30

y
Iouoy has knx eIirsd Of the police regulations
Of the State. Thepresent law assumes That TIE for-
II or law bar been found insufficient 10 accomplish the
.p.p for which il designed. Thai the regulation
ri the sale of intoxicating liquor having failed TO sup
rrese infenpsrsIee, pauperem and crime, ana the
iutljc evil, 10 sipg tkerehom il has become neces-
ssry 10 Try what virtue there Is in ProhioItion'
Whether he law can be carried into effect vne,1er
the WI ole resr, will not Re mere legislative en-c-
eut Of prohibition without The power 81 enforcing u
Irac icsiiy, ybeihe. the evils at whi; NE law :
pointed will not be gravaed instead of suPpressei
are matters eddrs solely 20 the discretion OF the
L.g,ature srd with wtich the judicial branch Of the
Government bAs 10 concern.
The objects OF The law are nstters in which the
whole conmari'y inter, s'ed Drsr kards, Paupes
ard criminals are tuldcps upon the pablo, enemies 20
the Iesce welfare and hsI piness Of society. Can
be doubted that the traffic IN intoxicating qaor was
entirely suppressed their number would be greatly
dnif lei al
10 rrevent tie public evils sainst which il is directed,
arc 10 promote tie public benefits which s designed
10 reach 1t is not difficult, by ignoring the whee
object ard purpose Of the law, to make out very
rsusihle case Of legislative ercrOachmeut upon prl
yae righ,s. But this is rot Just or fair mode OF con-
sideiTg it, The gres; encs OF public policy which II
was nierded TO subserve clearly within the scope
of legislative c5mpeoncy. The pu)hc evils which II
vss intended 10 suppress the most formidable 10
the peace ard welfare of society which those Who
make or admin sier the laws called upon 70 en-
counter Assuming that the Legislature hsve acted
in coed faith that they have not wantony ana IN
necessarily invaded private rights unoer the mete pre-
teuse of preventing public evils think the question
whether the public benefits are OF greater weight or
importance han the Individual losses which VIII re-
suit nom The prohibition OF the sale of intoxicating
LIQUORS a. beverage OF legislative discretion,
ara with which the Judiciary has concern. IL was
for the Legislature TO determine to what ekent was
necessary TO interfere with private rights in order 10
accomplish the great ends Of public policy which they
had in view; 70 array the side the serious loss
e rfy nd arrangement business
from the passage of this law, and on the other
the appalling statistics Of intemperance, paqPersm
and cine and then determine whether tue pubic ne
ccssy sufficiently urgent 70 justify the Individual
wrong.
But II is further claimed that The defendant should
be discharged from custody.
@ Because it does not appear, from the complaint
under hich he YVES arrested and convicted, that be
sold liquor which was not imported Thst, by the
true construction of the exception at the close OF the
fret section of the act, the unrestricted sale OF all I'M
rorted liquor is permitted The language OF this excep-
ton il follows: This section shall G0t apply 10 q uOr
fe right 10 sell which in this State given oy any law
or treaty of the United States. Ii Is said that as
this clause IN penal statute, and Is part oil the
definition of the ofense which II s the intention OF the
law 70 prob bit and punish, il must be StTtcy con-
strued This may be so; but literal construction Of
the clause will render il entirely nuga'ory. The rights
of tboee whose interests are protected by the ex
ception forbid such construction. There Is no law
or treaty OF the United States by when the rgns 70
rectly The right 10 sell liquor or other property Is
not GIVEN by any law Of the United States or the State
Of NewYors. 1t exists as necessary incident 10 the
right OF property, independently OF any POSITIVE Jaw.
II has been held by the Courts of the United States
that the right TO sell liquor of certain description and
in a certain condition, is secured by the operation OF
certain laws of the United States against any restraint
of the right Of sale by State legislation That Is to
saw when The set Of Congress authorizes the lmpora
tor Of aror the right OF the importer to sell it results
az necessary incident 10 toe right to import ana Ia
secured 10 him against any interference on tne part OF
TIE State Legislature by the paramount authority OF
Coppress The question then II, what description OF
liquor is it the right. TO sell which notwithstanding
any prohibition by the laws OF THIS Safe, Is derived
from or secured by the act of Congress- IL rs I'M
ported liquor in the cocks or packages in when IL
exnctly coz xtensve with the right to sell secured by
the act of Congress; and the exception was plainly
and solely intended to avoid a coahict between the
Sale and Federal laws. Any other construction
would be totally at variance with TIE waole 81 rl
scope and intention of the entire law as IN my jung
meT I 10 be utterly lnadmssble.
Tie rules by which the ssges Of the law have ever
bcen guided In seeking for the intention OF the Legs
been accumulated by the experience, aud ratified oy
the wisdom Of ages (Plowc ems Rep, POS
Tie resolutions of the Barons of lie Exchequer in
Hey dens case the following: For the sure and
true ion of all statutes IN general be they
"peral or beneficial restrictive or enlargpg of the
common law four things are to be discerned and con-
"sIdored;
II What was the lag before the N. kiqs Of the Act
80" What the Gche sLd defect against hich the CO u
rs Whist remedy the Parliament hath resolved and appointed
20 cure the disease u the Commonwealth
The true resson the remedy Ard held TO b the
duty Of the judges 81 terms to make ,SsH ,s
down inventions and eysnons for continuance OF ne
e conn0d0 aud adding force ana e 70 me
ce ard r dy Accordir to Of the makers Of
il t,o b no pubic" 70, Rspcrs7l
Surely we are not called upon 70 reverse these ad-
mirabe rules for the construction and Interpretation oil
statutes and so to ooDstrue this act as will certainly
and clearly advarce the mischief which was Intended
TO suppress and suppress the remedy which 1t was III
tended TO adv aDce.
his discharge.
g. Because the proceedings against him we're in vic.
lstion Of law and void. can perceive no substantial
error in these proceedings down 70 the time when the
defendant was brought before the County Judge upon
the warrant issred by that magistrate for his arrest
He then demanded that bis examination should be
taken and offered bail for bis appearance at the next
Court of Sessions Of Dutchess County. This was re-
fused and he was therefore tried and convicted before
Court Of Special Session held by said County Jadge.
n refusing an examination to take bail for the APP
pterance Of the defendant, l think the County Judge
committed an error which fatal 10 the validity Of
all tie subsequfn Mt proceedings against the defendant
The exsmir alton OF the defendant should have been
taken by The County Judges; and if upon the examine
ton Of the whole matter II appeared either that no
of.eDse had been commiited, or that there vas no
probable cause for charging NE defenhant there"ltn
be should have been discharged. II there was prooa
bic cause TO believe the defendant guilty bail should
have been taken offered by the defen liant for his ap
pesIsnce at the next Court having cognzance Of the
ofense. q X. s., 7Os, 700, no.
A Court of Special Session is one OF limited jarls-
dicon, deriving all lis power from the Statute. IL
could only acquire jurisdiction the person of the
defendant upon bic request to be tried before il, or his
omission for twenty four hours after being required to
do so TO give bail for bis appearance according 70 law.
ar. 5. I'll, 7l2.5
think he conviction Of the defendant void,
al 80 1T ne hia detention In cnstnlY.