New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-10

same a. 10 lAfic n any otncr 1.tch' ana IN we -
rence of any statutory prohibition or regulation the
trnfc i FREE The question which arises In the cass
under consideration ishas there 0ecn any VIOLATION
of any existing statute or rather has the IN
CURED any penelyf The plea OF glii'y places DC.
yond controversy The fact that the ceiendsnt mas se
liquor in bis s;oe without license. But what penalty
the Court inaici The 4ih secien OF tne NC. I'M
der which the proceedings in this case arr insi1iss
DOES not 90 into effect until the 9Th day OF July nex
and that section prescrbes specific penalties FUR ne
violation OF section lss foe the 6rs cense penalty
by fine of $50 for the second ofcnse penalty OF 500
ard thirty days imprisonment sind for every suosc-
quent ocnse tine OF rot - than 300 OF over $50
ard imprisonment not les than three morr than six
months For any violation Of the I'd or sth SECTIONS
of the &C, nnc of 500 and Imprisonment In county
is not les than thirty day., and permanent dsquain-
non for selling liquor within the state, &c Are NOT
these the only penalties which aiiach 70 me onrnse 9,
selling liquor with or without Ecenccf Are not Al
other penalties abrogated by the sth section OF me
act, which act rcpeals all ac:s and paris OF acts AID
all charters and parts OF charters inconsistent WIN
the &C; under Consideration
When an act contIring powers and Jarsalcuon ~
nuesed the penalties imposed by tie act cease to ex-
ist The penalties under the lcenss system, a. y, ex
isted leyious 10 the passage oil the act Oh TOE sh
April were specific penalties for selling hquor ",nous
obtaining a license from the Board Of Excise. That
law having been repealed by the oct of April last al
licenses except those prescribed IN the act OF Apn are
also revealed and the penalty being specific penalty
for the violation of an excise law, when Jaw ~
pealed, it follows that no pcnsy can os nne'ed unar
the gbrognted law No rule Of law Is better setfied
than hs-thst penalties canno, be- extended by mph.
cation. In " Smiths Commentaries on constitutional
Construction Ia work Of great research and Practical
utility to the legal student,l he says: I'VE have Al.
reaty seen that the why penal statutes should
not be extended by construction seems 70 be that
the Law does not allow of constructive onenses or
" arbitrary punishment. No man incurred a penalty
unless tn, act which subjects him to II DC BON Win
in the letter aud spirit of the statute imposing thu
"penalty IL has been said with great propncty that
"if this fundamental rule TO be violated the tate
" of innocent persons would be decide by the arbi-
trpry discretion of Judges, and not by express
Authority of law. The rule seemed 20 be well set
81 tied that penalty mus, aweys b. created by ex-
press words and that il cannot be raised by impcs-
iion This rule of construction has been sustained
BY cases Ia our courts. There can be no doubt
OF the IrinciSe that penal statutes must be strictly
construed II is much better that the guilty should
escape punishment than that they should be convict
ed conlrcry 10 law Il,
The duty of the Judge is TO administer the law a. he
finds H. not 10 egisae meet the exgencies OF par
tcuar cases or to give forced constructions In order
TO supply defects or interpret antiquities. III penal
statute ~ ambiguous must be- Literally construed, ana
the arty affected by il is entitled to the benefit OF ina
liberal construction. 1t has been justly said that mo
man should be stripped of valuable propery-per-
hans his all-be dsranchised and Consiz led to pub
" lie ignominy and reproach, unless It be very clear
that such high penalties have been annexed by tho
" law TO the act which be has committed III tneso
considerable ambiguity arises in penal statule but
il bound TO decide in favor Of the party accused.
have no doubt of the correctness OF this doctrine tn
welisettled rule IN the construction OF statutes, that
where the Legislature create new penalty for an OF
Tense without in express terms repeating the Oh pom
- atty, the old penalty Is repealed by impications
so far as il il contrary and rcpugnai thereto. Even
- where the Legislature impose second penalty Tor
an ofiense whether smaller larger than the for
mer one cannot be- allowed to sue on one or the
other at his option. The question as to the general
construction of the act of April last not involved IN
this ease The simple question before me is What PEN
ay can the Court impose for the act Of winch the par
,y conesses himself guilty have examined the au-
thOrtes bearing upon the principles involved ia INV
case with great care. en-.
know I is question in which great interest Is felt
and that whatever decision may render Will be the
subject of severe criticism. Whatever the eject 10
myself personally may be Is matter of no moment
The only guide Judge should consult hla own uig-
ment aided by his eotemporares and the hight OF that
legal lore which lumiues the history Of the past APP
Piled 10 the principles involved in the submitted.
Ii the statute to be passed upon Is penal one, and
doubts al Sc 10 its construction, the law Is wei set
fled that II should be literally construed in favor of tbs
party TO be affected by It. In other words, there ara
wel-iounded doubts to It's construction the party
party 10 be affected by Il il entitled to the benefit %
! those doubts. Acting upon these principles have
come to the following coDclusion That the provisions
of the act Of April 1885, so far as that act prescrbes
renal es and the OF Their enforcement IN the
City aud County Of OF craie repeal OF all
relating 10 the regulation OF and penalties for the
sale Of LIQUOR Except far yards the sale sun
day that were existence NJ the time of is passage,
and operate n an absolute repeal Of the saIne and
that 10 penalty can be imposed Tor selling liquor with
out liz else at the present lime, the fourth secfion 81
the act "a in operation until the ih day Of July next
| The defendant must therefore be discharged.