The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-25

the Liquor Law.
con9 Of oSo $ e The spr's
the 10th inst. 80
Present Thurman, Chief Justice, and RAnney Bart.
ley, Warden, and K~nnon, Judges.
No las Frederick Miller rs. the Sats-In TO tbs
Probate Court Of Gsrmont county.
No. l79 Let1n Gibson the Sdte.-In error to the
Probate Court OF Union county.
The plaintiffs In prosecuted for violations
the 4th section Of the act OF May 1884 entitled "Au
act to provide against the evils resulting from sals
OF liquors in the State Of Ohio which section
provides That all places where Intoxicating liquors are
sold in violation Of this act tha be taken held aud decar
ed 10 be common nuisances and all rooms tavens eating
houses bazaars restaurants, groceries, coffee houses
cellars other places Of public resort where ntoscat
ing liquors sold violation Of this act shall be shut
up and abaed ~ public nuisances upon the conviction
Of the keeper thereof who shall be punished as herein
Being convicted they were respectively sentenced to
pay fines and BE- imprisoned aud orders made that the
rooms by them kept should be shut up until bond and
security should be given pursuant TO the sth section
said act To reverse which sentences and orders these
writs brought
THURMAN, C. j., delivered the opinion OF the Court
Held
l. That for augbt that appears the Journal. Of tho
Senate and House Of Representatives OF the General
Assembly the act OF May 1854 entitled, "Au act 10
provide against the evils resulting from the sale OF Ia
toSicating liquors in the State of ONO was consttu
tionally enacted.
.. That the provision of the constitution TART Q sec
TO- that, Every bill shall be fully aud distinctly read
on three different days unless in OF urgency three
fourths OF the house in which II shall be pending shall
dispense with thus rule does not require that every
/
Every reasonable intendnisnt IL TO be- made favor
Of the proceedings OF the Legislature Il is not TO
violated the constitution. When therefore, II appears
by the journals that bill amenied by striking
all after the enacting clause AMI inserting ~ new
bn so called II cannot bs presumed that the matter
inserted upon different subject from that stricken
out especially when this matter inserted Is consistent
with the title borne by the bill before such amendmsn
This In the obvious since the constitution provides
that No bill shall contain more than one subject
which shall be clearly expressed 10 Its title. Cart .
u al mat Ia
called a new blu prove that il not amend
4 No bin can become a law without receiving the
number Of votes equired by the constitution and II IL
was found by an inspection Of the Iegss i've Journals
that what purpots to be law upon the statut. book
not passed by the requisite number OF votes II
might possibly be the duty Of the courts 10 treat
nullity But II does not follow that act that
passed by constitutional majority Is iuvald because
In Its consideration, the Assembly did not strictly OBJ
the mode Of procedure prescribed by the censu
ton. There provisions in that instrument that
directory in their character tho observance OF watch
the Assembly secured by their OF duty and OH
ciai oaths and not by any supervisory power Of the
9. Neither theIst "a 3D. 4th nor sh sections OF the
act under confederation properly constructed Is repug
pant % 'he constitution 10 saying this, we DO not
mean =" al IN that the Legislature has the power 10
vh. prohibit traffic in Intoxicating liquors In this
stat. without deciding whether the Assembly has any
ov this subject In virtue of the general grant
o. legislative power n Sec OF Art 2, Of tbs consttu
! uon, We hold that the enactment OF said sec,
Of power in Sec IS OF Article ID, In these words
mo license TO traffic In Intoxicating liquors shall here
after be granted In this State but the General As.
thersfrom "
O. violation OF either Of the lst I'd or % sections
Of the act, subjects the offender to the penalties
toned In the first clause OF Sec II not necessary
in order to incur these penalties, that all three sections
7. II sale violate all three sections the offender may
be prosecuted under either OF them and his conviction
or acquital will bar prosecution for the sale,
under either OF the other two sections.
y But a conviction or acquittal, under the lst "a
ID sections Is bar To prosecution under the lth
o. To convict for violation Of the ID section II IL
cessary 10 In ths information, and prove the
trial that the seller knew the buyer to be minor and
TO convict for violation OF the "a section II II naces-
sary TO and prove In like that the seller
knew the buyer TO be intoxicated (Brney's case, so.
r., 2aT, followed and approved
10 To convict for a violation Of the ath section, IL
IL necessary to aver in the Information, and prove
place OF public resort And the proof also show
that II place where liquors habualiy sold In
vol,ton OF the act single sale does not make the
place nuisance, or the seller keeper within the
meaning Of the act. A series of sales ID necessary
H. No order to shut up, aeate the place, right
fully be made upless the nuisance continues 20 sH-t at
| the time such order made. Unless, therefore tho
Court satisfied that at the time Of making the order,
act no order should be made FOR il the unlawful
business tand not the place. per ) that creates the
nuisance; and hence, whore the business has ceased
there Ia nuisance 10 abac. No mans property can
be forfeited punishment for crime the Constitution
providing that conviction shall work forieture Of
estate.V art l. sec. 12) Hence there IL power TO
deprive man Of the Of h. property unless Il Ia
necessary in order 10 abate exIsting nuisance.
H. The order Ia not 10 be- directed TO any officer. II
IL not order 20 be executed by any officer II 4
order to the person convicted obedience 10 which
be- enforced, II the nuisance be continued by attach
ment for contempt Of Court The order being made, "
the convict cease TO keep house Of public resort OF
the character named or referred 10 10 the fourth sec
ton he need give bond and having ceased no at
tacbment can properly be issued against him But he
desire to continue keeping such house 81 public resort
he must in order 70 avoid an attachment, give bond
He has bis election, 20 quit keeping house Of public
resort TO give bond and heep without violating tho
Law.
10. The following information Is sufficient 10 law
The STATE Of Ohio, Cternsnt county, n-Probats
Court, May term, in the year Of our Lord thou.
sand eight hundred and fifty four: John Johnston,
Prosecuting Attorney Of the state Of Ohio for the said
county OF Clermont here in said Probate Court,
In and for said county In the aud BY the Anho
ry and behalf Of the sAd State Of Ohio Information
makes that the second dAy ~ May, in the year 81
Lord thousand eight hundred Aui hfiy four,
and from that day until the Of the pro
ceodings herein 10 wit the twenty third day Of Nay
In the year aforeead nj ths said county of Cermont
IN the said state of Ohio, one Frederick Miller Was and
sort, where Intoxicating liquors and have been
then and there sold by said Fretsrek Miller, In volaon
81 act Of the General Assembly Of the state o. Ohio
entitled An act 10 provide against the evils resulting
from the sale Of intoxicating liquors In the siats Of
Ohio and passed by sald General Assembly tho nrst
day o, May in the year Aforesaid eontrary 10 the form
Of the statute in such made aud provided, and
against the peace and dignity o. ths STATE o. Ohio
Prosecuting Attorney Of Ciernont county.
H. prosecution undsr this sct be commenced
In the Probate Court II must be eommsnce4 before a
Justice Of the Peace or Mayor. But very strict
formity between the Information and tho orig nal
plant Il necessary. II the charge substantially tho
both, there 70 quaah the Information
on the ground Of variance The proper rule this
point has already been stated A. this term In Gates and
Goodpo Va. The state.
Nni tel record Ia not proper replication ~ the plea Of
former conviction prescribed IN The Probate Cole f0f
there Is pyefy Of record IN the plea The proper
pllcaton general denial Of the allegations ~ The plea
and the issue thus made up u 70 BE- tried By the Jury
empsnnellsd In the cause.
AcouuTAL OF WoNis CHAE0fD wfrn MuE
DyyrG mar CIntD--Mfs Csthsrins hcott hal her third
and last trial yesterday the First District Court the
charge Of rrangng her infant shortly after it, birth
during the great epidsmic On her nrr trial, -as
shown that the child i~ymais ami that sbe klisi
u 10 AVOID the shame u meeting lover just rrtarusd
from California On that occasion she found guilty
and recommended 10 mercy bat owing 20 a ia. IN the
- L. M ElnA al a