Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-10-26

nv W uIHAy NnAHtNEuIH IN aNno E0IIO0
COurt-Arguments 6f OonnseI-The Opln-
ion Of Court Reserved.
The case Of Alonzo W. Churchill, charged
with unlawfully exercising the Office of
Whisky Inspector, was tried in the Police
Court yesterday, upon the following agreed
state of facts:
That on the lst day Of July, 1859, the
defendant was appointed Inspector and
Gauger of Foreign and Domestic Spirits, by
the City Council of the City of Cincinnati,
for the term of three years, aud until his
successor should be appointed and qualified
and that before entering upon the duties of
his Office, he took an oath as required bv
law; that he entered his bond according TO
law, which was approved of by the said City
Council. That on the 4th day of Septem-
Der, 1860, r. M. Bishop, Emmanuel Was
senich and Thos. s. Royse, Commissioners
appointed by said City Council, by special
ordinance passed for that purpose, selected
another person Gauger and Inspector of
Foreign and Domestic Spirits, who gave
bond, was approved of by said City Council
and was sworn. Il is also agreed that since
said 4th day of September, 1860, the said
defendant, as heretofore, has exercised the
duties Of Gauger and Inspector Of Do
mestic Spirits, and that on the 10th day of
October, 1860, this defendant gauged, in
spected and branded two barrels of whisky
belonging to the class of domestic spirits)
and received compensation therefor"
Edgar N. Johnson, observation-disclosures,
appeared for the City, and Peter Bell for the
defendant.
Mr.. johnson opened the argument by re-
ferring to the several ordinances in force in
relation to the inspection of liquors, and
particularly to one passed in 1928, which
defined the manner in which inspectors are
to be appointed by the Council, and contains
the following penal sentence;
"And if any person shall exercise the
office of gauger or inspector of domestic
spirits or linseed-oil in the city of Cincn-
natl, without the authority of the City Coun-
Gil as aforesaid, every person so offending
shall for every day or part of day, he shall
De SO employed without the authority afore-
said, on conviction thereof before the Mayor,
forfeit and pay to the city of Cincinnati any
SUI sum not exceeding $40, nor less that $5r with
the costs Of prosecution"
Mr.. johnson contended that the city was
empowered to appoint inspectors of whisky
by the ordinance of 1923; the Ferguson Biil
OF 1860 amended that ordinance by author
lzing the City Council to appoint commits
sloners to elect said officers and that thev
had been elected, and duly authorized and
no private citizen had the right to intervene
between the buyer and seller, using the same
brand used by the regularly ly-appointed in
spectors. Churchilrs term of Office had ex-
pired, and his successor had been duly elected
and qualified.
Mr.. Bell, for the defendant, contended that
the prosecutor had made great mistake in
filing the information against his client un-
der an ordinance which was not in force
the ordinance of 1s5S-and if in force, un-
constitutional. Mr.. Churchill was appointed
under o law passed December "a l845. and
his successor had not been duly elected and
qualified, as said ordinance had never been
repealed. The Ferguson Bill had not re-
pealed it.
The City Council, under that bill, may
have had the right to elect inspectors, but
had not the right to appoint Commissioners
to elect. The law of 1845 was still in force,
and Churchill was still the legal inspector.
The law of 1858 was unconstitutional for the
same reason that the Office of City Weigher.
in the case of Chas. G. Broadwell, was de-
clared unconstitutional by the Court of Com
mon Pleas, and the decision of Judge Pru-
den, of the Police Court, reversed. Inspect
ing OF domestic liquors was an occupation
which any one might follow, and there was
no ordinance to compel persons to have their
articles inspected or weighed.
MIR. johnson replied, that although there
was no law to compel individuals to have
their articles weighed or inspected, vet
when they voluntarily have it done, it
should be performed by the proper officer
The difference between the law in reference
to weighing and inspecting was, that a
special enactment had been made appointing
exclusive inspectors, which had not been the
case in regard to oweighing-the Council hav-
ing assumed the right to appoint an ex-
elusive City Weigher without authority
the one was based upon a statutory enact
ment the other was an assumed power not
delegated by any law.
The law creating the Office of Inspector of
Domestic Spirits had not been decided to be
unconstitutional by the Common Pleas, Dis
trict, or any other Court. Mr.. J. admitted
that there was some confusion in regard to
the legislation concerning inspectors, but
claimed that Mr.. Churchill had violated the
law, and performed duties which belonged
to another.
The case was submitted to Judge Lowe,
who said he would give due notice to the
parties interested as to when his decision
would be given.