New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-07-12
THE LIQUOR TRAFFIC.
NETWORK CITY.
NEW-1UKh OIIT
pEcisIos OF JUDGE BIRDsALL II The CASE OSDA"
THE LIeUORLAw'
MARINE COURT-July II.


p,,ns.,, The defendant is charged with hav-
i,g violated sec. Of an act "For the Prevention OF
@ Intern eranoe. Pauperism and Crime" in having
sold elass Of brandy to one Taylor, on the 4th of
July inst
The proof Of the sale Of the liquor is competei in
fre, the defendant admits The SALE
Several questions arc raised by the counsel for the
defendant as to the constutonaty Of the law In the
first place, although know of no constitutional or
statutory provision restricting acOmmittng magistrate
from passing upon such questions when they arrive
vet certainly doubt the expediency of committing
MAGISTRATE exercising that power. 1t more properly
belongs TO an appeslable court
Tho &C, of 10Th April having taken away the juris
dicon Of this court, can only act as police or com
hitting magistrate From my judgment there can be
10 appeal Consequently TO pass upon these questions
would only be assuming right or power which could
DO. have any effect and which would not establish any
rights under the law. Had not been ousted Of juris
diction then it would have been duty imposed upon
me 70 examine thoroughly every question in
yolved and which / should have done unbesitatingly
Then pass from such questions to the inquiry as to
whether or not an offoose has been committed" or
ia there probable cause for TO believe an ofense
has been committed.
What ave the restrictions under the law Liquor
roust not be sold in this State except authorized
q unde, or by virtue Of the law Of the United States
" as prori9ed by his lop." Such / conceive to be
the true construction to be placed on the law The
question then arises what liquors are authorized by
tho laws Of the United States to DC sold in this Sae,
and how, or an lchat quantities they may be sold.
"That the right TO import" as contended by the
Earned counsel implies ihe right to sell" Is cor
eeded but how 2 Why only IN The original packages.
Then may say the laws of the United States au-
orize the sale of liquor in its original packages and
not TO sell by the glass The State has right TO
regulate the sale. The law says, virtually, You
sbal not sell liquor in this State, but you may sell
{" to the extent OF the authority given by the United
States and no more"
Taking this view then Of the case, an ofease has
been committed. | concede that the law is open TO
other construction and that it may be construed 80
o. to except all liquor that is imported It's true, if
doubt arises as TO the construction of penal law,
il should be construed in favor of the prisoner yet I,
sitting only as magistrate, land it having been the
intention of the Legislature to prohibit entirely the
sale of Equor,) deem ii expedent TO hold the defend
ant on The charge In so doing both parties get
the Judgment OF the Court authorized by law to try
these cases, and from whose decision an appeal may
bo had.
ID.
commitment for Mr.. Smith, on which he was held to
hail. and an arrangement subsequently made we I'M
derstand to ty the case before the Recorder at the
Special Sessions on Friday
COMPLAINTS UNDER TIE LIQUOR LAW
Since the decision of Judge Birdsall, holding that
selling imported liquor by the glass is violation of
tho new law. several complaints understand
have been made against Coleman * Setson and other
proprictors of hotels, Sc most of them, it is said
like tba, against Mr. Smith, being with view to
make full issue to test the Law.
OPINION OF JUSTICE PEARcY, OF THE SEcoND
D,srR1cr Police CouRT-The act for the proven
ton Of intemperance, pauperism and crime passed
nv the Legislature of this State April Q, 1854, contains
aubiect matter the correct Interpretation OF which
there may be honestly difference of opinions but 1t
is not my intention TO travel the whole ground
occupied. or presumed to be occupied, by that act.
Whatever may be my private opinion of the act
either for or against or the opinions of Others, can
not Justly be biased by any of these considerations
have only TO say that have taken voluntarily sol
emn obligation as magistrate which can neither
set aside or disregard and consequently can know no
friends or regard any enemies to The aforementioned
net In the case before me- the accused was charged
with violating section r. viz being found IN the street
Intoxicated and the charge distinctly and clear
" proved by the officer making the arrest also by
The examination of the accused himself ID is con-
tended that have no right or power to impose the
enc. or imprison in default of payment That part of
the wefth section reads thus:
shall be unlawful for any person to be OF become inioH'
Gated In any store grocery. ane street public place. nn5 o
ch osense shall be liable fine Of ten dollars TO De Sue LOT
and recovered tbs fines IN the ionfh eco
a his acts and IN default the payment thereof he shall
stand committed, a. provided In said fourth section
by referring TO section fourth we find;
Every person who shall violate any provision OF either OF the
prfcdr sectons shall upon conviction &c, be punished Is
hov For violation OF section first for the hfsi oy
tns Of g dollar, S The second for the third
And every SUBSEQUENT oaene by fine Of not loss than on
sSp S ss, 9G So s SsS three nor more
&c md in dsso Of P'Ss 9 Of any s. i S Ss a1,u the
sane are paid less than day per dollar oil the a"ooSs
unpaid
Thus bv examining both sections-the one declaT-
inc the commission of a certain act & crime aud nm
posing penalty thereto, the other describing The
mnnier Of recovering that penalty, or IN default OF
paymett the IMPRISONMENT incurred thereby am
clearly Of tho opinion magistrate designated oy
SECTION fifth OF the same act to institute proceeding
on all violations Of said act it is not only my prov
ineo but my duty to impose the fine Of $40 on the &C
cused for being intoxicated. The point has eeeo
raised that the words "sred for and recsvered have
generic meaning and that a sui should be Instituted
ff the recovery Of the fine debt by civil law.
do not think so. That il was never the intent Of the
Ieysla, ure that the penalty thus imposed shorld be
thus sued for at civil law person will dispute for
moment. If it was intended tina, the fine was TO be
sued FOR by the Corporation Attorney, rs has been
argued, the section would have designael that
eourse and named the officer instead Of referring TO
the e,,r.h seo,ion VIVA. can he more clear then