New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-07-18
DECISION BY THE RECORDER.

In the CouIt of Sessions yesterday morning Recorder
Smith rendered the following decision in the case Of
the People, &C., az rel. Martin VS.. Dowd:
On the 10th day of July inst Mary Martin made ON
affidavit before Police Justice Wood, in which she a.
legged that the sth day of July aforesaid intoxo<
ting LIQUOR 10 wit, brandy, sold TO her by the do
ondant Thomas Dowd, In violation Of the provisions
the oct entitled San act for tho Suppression OF In.
temperance Pauperism aud Crime, paased April .,
1e55 and that she PAID for said liquor and drank the
same on the premises of the defendant.
Upon this affidavit Justice Wood issued warrant
for the defendant; the defendant arrested, taken
before the Justice and held to bail to the charge
at The Special Sessions. On appearing in this Count
the defendant waived his right of trial by jury and 10
terposed plea of not gully. Upon the trial the de-
ieLdant admitted that he sold brandy to the witness,
Martin at the time specified by her in her affidavit
but coupled tie admission with tue averment that the
brandy sold was imported.
Notwithstanding the admission Of the defendsn,
the witness, Martin, on behalf Of the peoDe,
and confirmed the facts as to the sale of the liquor By
the defendant to the witness stated in the ailsyf
upon which the warrant was issued and in reply 10
question by the defendants counsel she stated thst
che did not know whether the brandy was imported
liquor.
regret that no counsel was present to represent the
prosecution upon question OF much interest the
one involved in this II would have been crafty
ing to me to have had The question, on both Sides fully
presented and discussed.
Previous to the passage Of the act above referred TO-
the power TO grant licenses TO sell liquor, &C., in the
City Of New York was vested in the Mayor and Com
Oh Council. The same act that conferred upon them
the power to grant licenses, also imposed specific PEN
allies for The violation Of TIE Excl % LsW-penalles
that could be enforced by civil remedy, and aso fine
and Imprisonment 10 be enforced by terminal pros
ecutOu for d misdomeanor.
The statutes of this State imposed penalties for
selling without such license as pr0vided IN tie
then ezisfing lars. The licenses then authorized ore
expressly abolished by the 2jth section of the act Of
AIIi Q, 1855. And 10 license can be granted except
the license mentioned in the second section Of that act.
/ know il has been coDtended that tho penalties
under the statutes existing before the act Of April are
still in force and are not effected by the last men-
toned act; that the penalty imposed there was fof
selling liquor without license and that now, wbea
10 license can be obtained 10 SELL the Old stauie
still operative. do not 80 understand the law. The
PENALTY under the old statute specific yesaty,
imposed for selling without the specific license mea-
toned in that statute.
The statute imposing the penalty is repealed by the
Oath section Of the act of April. The penalty expires
with the law that created H. and we must seek IN the
rev law in the act Of April and that only, for theh D.
and for the penalty The 2fh section Of that sc
il broad and sweeping in its terms IL repeats all ne
acts and parts OF acts, and all charters and parts
charters" inconsistent with the act.
The Legislature In framing that section clearly 10.
tended 10 effect such rep o. and COR the purpose Of
preventing actions then progress from being Affected
ty IT, enucted that no suit commenced Indictment
0und before the act took effect should in any measure
affected thereby.
1Eeie would nave been no necessity Tor the lss
a.ogrGph Of the Goth section If the Legislature IN
ended that the old penalties for selling liquor whoss
icense should remain operative. The question thss
telore the Court is has the defendant violated anyd
the provisions of the act Of the OH Of April, and 60
what penalty has he incurred The LIST section OF no
tci re ads a. follows:
intoxicating Hqu,r (except hereinafter proyiie sAs
not be cold Kept for with intent 70 be sold BY ssf
for himself any other person any place vhsfssa
shA j BE- given away Except medicine BY pnyae-
pursuing the practice OF medicine business or for 81
mental rOrposes be kept with the to be gwen Az
IN any piece Whatever, except dwelling house 10 wsach
sny part Of which tavern grocery shop so.faas
yicusing house room fog gambling dancing OF otn
lie Amusement recreation Of any kind, b keps nor
be kept cspcsed in any place Whatsoever, e1Ie
dwelling house above described, or 10 church OF hef
worship for secTamenta purpo-es, In place "nee
che cs mechanical medical act requiring
sIrtuous liquor il earned regular branch Of Or
while in actual transportation from one place 70 sras
stored warehouse prior 10 its reaching tho place
This shall not apply 10 hq10r, the ns tbs
! which, IN this State given BY any law or Hss'
/ United States" .,
Had this section ended at the word des'inss.;SI
tie question presented by the counsel for the
ant could not have arisen. But it is now coe' ssr,
by the counsel that although his client had 500 :,
without license he has no< violated any Of INC ..s.
ions of the act Of April or Of any existing 80 ar
that the latter clause Jf the rst section IN en- .t
cepis imported iq1on from the opsrauen '" wv