The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-05-10
THE LIQUOR CUES TON.
xnportant Decision OF the Recorder La the
Case OF Patrick Boylan, Charged with
Selling Liquor without a License.

who was aragnsd in the Special Sessions on Tuesday
morning for selling liquor the first OF May with
out license, up before Recorder Smith at the
General Sessions yesterday during the forenoon. The
court very much crowded. and considerable interest
manifested to hear the decision After disposing of
other unmportant business the Recorder rendered
the following Judgment, which, it viii be sssn, was
favorable to the defendant -
The defendant Patrick Boylan was arrested the It'll
Of May, upon charge of selling liquor without Ii
cense ct his store No IT'S South street. in this city,
The warrant was issued by Police Justice Osborne and
the sent to the Special Sessions for trial The defen
dant appearing pleaded guilty TO the charge me only
question: therefore, for the Court to pass upon Ia what
The general statutes the State in relation to
regulations and penalties cid not apply to the city and
county of New Ysrk until the enactment OF the act
titled IAN for the prevention Of ntemperance pau
perism and crime passed April 3, 1885, except far
the statutes related to TIE sale Of liquor sunday
This act repealed all former statutes and penalties upon
the subject Of the sale OF liquor except the penalty for
selling liquor Sunday Ths chartered privilege Of the
atty and county OF New York conferred the excise pow
upon the Mayor and Aldermen. In this particular
stood in different p0sit from ether sectonS of the
State At law right to traffic in liquor
the to traffic in any other article and in the alb
sence Of any ststutary regulation the traf
fc Ia free The question which arises In the under
consideration is has ,bers been any violation OF any
existing statute rather has The deen liant incurred
any penalty The Plea Of guilty places beyond contro-
versy the fact that t6e defendant has sold liquor in his
store without license But what penalty the Court
incs The 4h section the act under which the proceed
ing in this case are ns Sted does not go into effect unt
the 4th cay OF July next ad tina section prsscrbes
specific penalties. For the violation OF section 's for
the first offence penalty oy fine Of 500 for the second
offence penalty OF 500 and thirty days imprsonmeut
and for every subsequent oacuce fine not less than
S10o $780, and imprisonment not less than three
NOR more than sir tbs. For sny violation of the Cd
or Sd sections OF the set fine sl00 and imprson-
nsnt in county jail not less than thirty days and per-
%anent disquahes' on Tor SELLING ngaor wi,nn ,ae
to the oen,e Of selling liquor with or without lcenses
Are not all other penalties acroeed by the Gath section
- all
and all charters apd parts OF charters inconsistent
with the act under consideration? When act confer
ring powers and jurisdiction is repealed the penalties
imposed by the act cease 10 exist The penalties under
the cere system 1t existed previous to the passage
Of the act Of the 9th Of April were specific for
selling liquor without obairing icsnge from this Board
Of Excise That Ian having been repealed by the act
Of April last all licsnses e1cest those prescribed
in the Of April also repealed and
the penalty beng a, specific penalty for the
violation OF an excise la, which law Is repealed,
der s nss BE- settled
than thsthat pensties cannot be extended by impi-
cation. In ''smith's Commentaries on Constitutional
utility to the legal staden. he says-"We have al
ready seen that the reason why penal statutes
thould rot be EXTENDED 10y constru oon seems to be
that the law does not allow or constructive olien es
or arbitrary punishment No incurs penalty
unless the &c. which subject. him to il be both within
1t has been said with great proprey that il this funa
mental rule 20 be violated the fate of innocent per-
sons wculo be decided by the arbitrary discretion of
JUDGES, and not by express authority of law The rnle
seems TO be well settled that penalty must always
created by words that 1t cannot be raised
BY implication This rule OF c,r struction has been
tanned by casesin courts There be doub
oil the principle that PEI must be strictly con-
strued It Is much better that ise aay should esesns
punishment than that they should be convicted contra
~ 10 law the duty OF the Judge is to administer the
law as he finds it. not TO egate to NEST the exi3encies
OF particular cases. or to give forced constructions in
order to supply defects utipret antiquities. If
strued; and the party affected By IL is entitled to
the eeneht o. toe liberal construction. II
be stripped OF vAuable property perhaps his all be
dsfanchised and consigned 10 public ignominy and
Proaeh unless it be cer that such high penalties
have been annexed by the law to the act which he has
committed. If hsse principles be correct court has
no option where condea Die ambiguity arises in penal
cusei" have doubt OF the correctness Of this doc
trine. 1t is well settled rule in the constru ,ton of
statutes, /" that where the Legislature creates new
tepeaing the old penslty, the Old penalty is re-
peslea by iwpicst:on 50 Ssr as it is contrary and
repugnant thereto Even w ere The Ieysature IN
poses secord penalty for offence whether smaller
pr Larger than the former one party cannot be ao we'd
10 sue on one or the other at his option The question
to the general construction OF the act OF April last
not involved in this The sim pie question before
We what penalty can he Court impose for the act Of
which the party q ntesses himself guilty? havs
amnec the authorities cearirg up5n the p1inci
Pies invoiyed in this case With great care. know
severe criticism Whatever the effect to myself person
ally may be, is mstter OF moment The only guide
JucRe shouii COM ait Is his judgment aide by
his ctenporares and the light Of that lore which
Ilumines the history of the past applied to the prin
cples voved in The case submitted II the statute to
be passed upon is psnsl one, and DOUBTS arise
as to its construction the law Is we'll settled that
u should Dc Literally construed in favor Of the party
there wei founded doubts as to its the
party to be effected by 1t is entitled to the benefit of
fhose doubts. Acting upon these principles, / have
come to the follow ng conclusion THAT the provisions
Of the act of April ls5b far that act preorbss
penalties and the their enforcement 10 the
city and county OF New York. operates ss repeal Of ali
acts relating TO the regulation or and penalties for the
sale Of LIQUOR except 50 far as regards tbs sale Sun
day. that were in existence at the time of its passage
and operates as an absolute repeal of the ami that
no peralty can be imposed for selling liquor without Ii
act Imperative until the 4th day of July next The
defendant must, therefore, be discharged.
Meeting Of the Carson League.
public mee ting of the Carson League was called last
night at Kn;ckerboo Han, in Eighth avenue At the
hour eesgr ated for the nseag to there were
about $50 peIsoLs in the rom, nearly half OF whom
were women.
Mr.. J. D. Oliver was called to the chair. After
prayer from Rev. Mr.. MATrIsoS,
The CHAIRMAN stated that the Carson League was the
best rt nd the rumsel had for the League had
deavore to make the traffic respectable and legal There
is faulty IN all their ments, for IL the traffic had
been made legal the prohbtory Law would perhaps
nave ssn was na ns tss the
large hotels to protect the liquor interests but notwh
standr their efforts the League would go forward and
endeavor TO enforce the law, matter how great the
opposition was Applause
Rev Mr.. MArrIsoN was favor Of temperance aud
law but he not yet ready to go to prison in be-
half Of the League. IL he kne1 what the League was it
meant to enforce the laws now on the statute books
The rumseers nad given notice that they would not
obey the law-that they would oppose evsde, do any
thing rather than comply VITA its requirements aud IL
behooved every good citizen to give the League his
countenance and support Liquor dealing is not like
thieyng, or selling galvanized watches ami must be
met by associative efforts among tue people to enforce
the law. (Appause) 1t Is hard thing to get people
to inform against rumseers insomuch all Of are
pecunariy interested In the business; and then 1t Is
deemed odous be nfofmer, and this suspicion at
tscher TO all who join the League There Is sympathy
in the community for the liquor Dealers and many per-
sons thinking Ii harm TO cell liquor naturally
nWhy combine to put these people DOWN Let
them alone" and thus . spirit OF Indifference
10 manifested. The reverend gentleman here de-
scrbed the varying effects OF liquor ofer-
e.t constitutions and BETRAYED remsykabls knowledge
In .nAhr a.