New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-03-04
La W LNTELLIGENCE.
TIE PROHIBTTORY LAW AND THE CITY
ORDINANCES.
Before Jsass cAPsOs at Chamber.

without license, and imposing penalty OF 30 on The
ID, nder.
The trial csme Yesterday before the City Judge.
Mr.. C. J. Warren, Secretary OF the Temperance ALI
aace. appearing in behalf Of the people, and ID. b.
Tavlor esq., for the defendant.
Mr.. Tsyor's argument embraced the following
points:
First: Assuming that this complain, for viola
ton Of tie Corporation ordinance entitled Az Or
dinance for the more effectua enforcing OF the Tx
"cise Laws" and that that ordinance Is valid, the
complain, should b. sent back to the magistrate who
issued the warrant because,
l. The Offense i not uisdemeanor, notwith stand-
ing is declared to be IN the ordinance Itself Ine
Common Council cannot create misdemeanOrs- T6at
power belongs to the Legislature alone. The only
legislative act which we aware OF that makes the
Viz alton Of an ordinance of the Common Couneii
usdtneanor the 5th section OF article OF the act
relative TO the Police Department of the City Of New
York. passed April -, 1858. That section We sub
nit passed in violation Of the provisions OF the
Constitution of this State. The 10th section of ar
cle OF the Constitution declares that " no private or
local bill, which may be passed by the Legislature,
"shall embrace than subject, and that shall
be expressed in its title" The Police act, to which
We have referred, Is entitled: IAN Act in relation to
"the Police Department In the City and County Of
New. York" II is stIlctly and entirely local in its
character aud the provisions of the 5th section have
not the tmOes connection with the subject expressed
in the title.
.. The third section of the ordinance requires the
magistrate who issued the warrant 10 proceed in
msry to try the offender when he Is brought
before him. and gives him power to take bail for the
Sessions.
case for the reason that the committing had
no power to hold the defendant TO bail.
Second: Assuming that the act Familiarity known az
the " Prohbitory Liquor Law is constitutional aud
valid submit that the ordinance imperative and
void, because,
l. The act Of selling intoxicating liquors not an
ofiense at common Jaw. Ii became a mlsdemeanor
only by legislative action and the act which created
the ofiense prescribed the punishment.
3 The Prohibtory law declares the oense of selling
intoxicating liquors without license tn be mis-
demeanCr and at the same time prescrbes the punish
ment Tie authority of the Common Council to pass
this ordinance derived from the Legislature before
this law was passed, and hence that authority could
no longer be exercised, for the reason-First, that
the Legislature possesses the supreme power in the
State and the authority of the Common Council to
pass ordinances is derived from and is subject to
legislative enactments. Second where the Legislature
creates offense or prescribes new punishment
sor d crime, any authority previously possessed by
a subordinate body to prescribe different mode of
punishment for the same ofense IL necessarily sus-
pended. Third, if the Common Council have power
To iuact any punishment for the ofense, that power
is Unlimited and may be exercised with more severity
than the power exercised by the Legislature. The
supieme power would thus be virtually transfer
red from the Legislature to the Common Council.
Fourth, il is well settled rule of law, that a man
shall not be twice vexed for and the same cause.
browns Legal Maxims, page 24l II, therefore, the
ordinance is to be deemed operative, 1t necessarily
follows that this legal maxim will be violated or the
will of the Legislature in passing the Prohbtoy law
will be DEFEATED There can be no doubt that sum
mary conviction of the offender under the ordinance,
and his conviction of misdemeanor for the same act
under the Prohbtory law, would constitute two con-
yctions for the same offense. Fifth where statute
creates ofiense and expressly provides punish
mert the statutory provision must be followed strictly
and expressly. (Whartons Amer Grim. Law, 59.l
ls., NLnN.
ton Of the ordinance could not be msdemeanor then
il follows that the ofiepse is merged ia the greater
ofiense created by the Prohibitory law lfhe People
Mass, LOG; Wharon's Grim. Law, 1877, OIL
Third If this complaint is for a violation of the
provisions Of the Prohibory Law, and 1t is not claimed
that the defendant is held for violation of the orii
nance, then we submit that your Honor II bound TO
Sc nd the case to the General Sessions The defendant
is entitled TO jury trial a. matter Of right and he
cannot be deprived of II unless he expressly waived
at the time Of bis arrest.
During the argument his Honor remarked in refer
ence 10 the several points made by the counsel that
many eminent lawyers had published opinions on the
various provisions of the PrOhibtory law but that no
one Of them had to his present recollection, yentured
TO declare his opinion ii at the principle of prohb,
ton az regulated in the statute, a violation of the
Constitution. His Honor also remarked that the Cor
pOration conld not in his opinion, lawfully declare the
breach of city ordinance TO be a msdemeaD0r, pun
irhahle by indictment complaint before the Spe
belonged-but that the Corporation might pass police
ordinances, and impose pecunary penalties for their
inracon. OF course, said the Court, in the trial Of
this cause we assume that the Prohibitory law Is valid
because if not there can be no dispute about the
validity Of the ordinance. Taking it for granted the
law is valid the question to be discussed here is Does
that statute repeal the ordinance!
Upon the much-mooted question whether the traffic
in intoxicating liquors q beverage ever free at
common law, his Honor said that before civil Govern
ments were formed, in the time of the Theocracy, the
Supreme Moral Lawgiver had proclaimed His denun-
citation against the use Of intoxicating liquors
beverage and by the mouth of His prophets had ut
tered tie lirst prohibition. This doctrine originating
from Divine source, has been with more or ss ygor
adopted into the laws Of the earliest nations The
Bible is the exponent Of the Moral Law, which forms
the great element Of the common law of England;
and the testimony of the earliest legal record of the
people yho ultimately formed that nation bears wit
ne - that the sale Of intoxicating quon beverage
was not uDtrammeled by legal restrictions 1t il q
mistake suppose that the primitive statutes that
subject were restrictions upon free traffic in the arti
ce history affords evidence thst those statutes
were the relaxation Of a prohibition than that they
were restrictions upon the free traffic 10 the beverage
Upon the question Of jurisdiction, the Judge
marked that be would prefer 10 dismiss the case on
that ground and should do it his authority to enter
tain il not found to be very clear.
The following arguments were presented by Mr..
Warren in reply:
The ordinance was originally constitutional and
valid. To ordsin il was within the power Of the Cor
poration granted by the State law Of 1893. The ord
nance was not substitute for that law, but in hsr
nony with ii. They could both stand and operate
together
g. The city ordinance was not part Of the State
law, and would not fall in it, repeal Its authority
wac not from the Excise law, but the act of 1885, The
ordinance did not depend the Excise law, and its
repeal by implication is not favored by the courts
fCh. j. Nelson, in Bowen VS.. Lane, 5 Hill, 22G
3. The ProbibtOry law does not repeal the ord-
nance. 1t repealed only what was inconsistent with
itself This ordinance has the same relation TO the
new law that it had 10 the old. There conflict
with the former, and there i with the latter
No conflict, discrepancy, DO want Of harmony has
been specified. As with the Excise law, so with the
law OF Prohibition-eiiher with the ordinance can