New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-03-30
THE REFRACTORY RUM SELLER

The care Of Richard French for violating the ofdi.
pances Of the Corporation, in selling liquor on the
Sabbath, was heard before Justice Osborn, at the
Mayors Office. yesterday morning, Mr.. Theodore f..
Tomlinson appearing for the defendant, and the Dis.
trict Attorney beha Of the Corporation The room
was croaded with persons interested in the Issue Of
the Gaze, and it is sad that the adjudication will be
held to rule in all the other complaints made az anst
volstors Of this ordinance Of the Corporation.
Mr.. Toulinson made a long speech in behalf of his
Client during which be made the folio wing objections
against edng ia the case which he desired should
be entered in the form of q demurrer:
/. That this Court 10 not competent to take cog
nizance of the case, not being 80 designated by law.
II. We claim the right of trial by Jury of our
III That the Common Council has no RICH, to pass
any ordinance relative to the sale of LIQUORS Sun
day, the State having already prescribed the Ofense
the rem edy, and the penalty.
w. We contend that the sale OF liquor on the Sab
bath Is continuous and not divisible ofense; in
other woros that not more than one fine can be i'm.
dosed for one day 'Iviolation of the ordinance.
" Ii is mistake to suppose that the sale of Iuor
on Sundays is prohibited by Law. On the contraryit
is expressly permitted to travellers and 'dgers ia the
premises and consequently TO all persons becsus
zone who moves from place to place"
vi. That the witness Mum as sent by the author
tiles to purchase liquor Of Mr. French, and that the
sale to him was on the legal authority of the Chief
Magistrate of the City, and therefore that the vending
was not unlawful.
Mr. HALL replied. These objectio,s come before
your Honor in the shape of a demurrer; an informal
motion TO dismiss the complaint. From the position
of Corporation Council which Mr. Toni ason once
occupied, he must, l suppose be well informed
upon the law in such cases, and recognize to the
full the ObjecrOns-plausibe enoug h-xhch he would
make but shall show conclusivey that they do not
hold good.
l. This is Mayo r's Court, and the Mayor, or Chief
Magistrate u.s. by all the Charters of this City, well
as by the State law, proper person to try csses OF
this character.
H. Your Honor knows that there is no jurisdiction
better settled than thote which are known as sum
mary Jurisdictions, and in support of this, need
only refer you to the elementary law upon which You
have acted ever since you were a Police Justice.
Ill. The third objection lie, upon its face good
sound and logical; but il is founded upon misc
structon of fact and law. The Common Council are,
pow pass ordinances grant licenses for and re-
pulate the sale Of various commodities, among the
rest alcoholic liquors. and for violations OF those or
diDaLces TO prescribe penalties not exceeding $40 for
each offence and in cefaut of pay of the to
ipprison the offender for period not exceeding ten
days.
". The ordinance provides:
Ifsny person City OF New York shall sell by retail
deliver pursuance of any such sale any vine, ae lager
beer other strong sPruns liquor or shall consent TO-
allow permit any wine, ale lager beer or other strong OF
spuous liquor b. him her sold or delivered to be muck
soeve without bens licensed according to law or beinsso IL
ceDsed shall sell. deliver consent TO- allow or permit any
m drunk aforesaid, the first day
OF the week excepting 10 bosde and odgef or
actual travellers within the provisions the law he she
shall for cry oeIss be liable to the pains ana penalties
hereinafter mentioned. go
The ordnance was formed in strict accordance with
the statute and the terms any and "every are
syroymous SO that tie ofense is repeated as often
as LIQUOR is delivered TO individual.
" Upon this point will reply when the evidencs Is
before me.
vi. am content TO answer this point by referring
TO the case of Rossi the posofice robber which was
tried in the Supreme Court, mainly upon the tes,l-
moIy Of acconplices and sections ~ and u OF the
Police ordinances of this City.
Mr. Tomlinson replied by denying the correctness OF
most of the conclusions OF the District Attorney, and
asserting that ordinance which restrained trade
was TO the law Of the State and therefore
null and void ,
Justice Osborn said he would reserve his decision
until o clock on Saturday afternoon.