The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-07-17

49, - -
ment, or both. The oct constitutes this oissnct 40
separate onencs having connection with any oahes.
aud u the vows above espsssd are Uof CUSTODY undss
such complaint and that no was not Improperly detained
and restrained Of his liberty, and lnat ne
not entitled 10 discharge. He must therefore, 20 TO
manded and oil further proceedings In tue court DO as
continued.
OPINION M JUDGE GILBsRr.
IN NJ John H. KeIchnm-Gbert Tine return 70 inc
writ Of habeas corpus shows that the petitioner held
under OF issued by the Justice upon the
sworn complaint Of policeman, ,ha' on sne s.n Of
July instant in the city Of Brooklyn in the county
Of Kings, the petitioner did unlawfrlly and publicly
keep sell and dispose oil q quahty Oh strong
and sp'aSns, ausrNso VI Fuon street contrary
TO the provisions Of the third and eighth sections
OF the to Regulate the Sale OF lntox eating Liquors
toner is demanded on tho ground that the statute ia
question unconstitutional and void II IS said that
the statute does not conform 70 section 10 Oh article OF
the constitution which requires the subject of local
bill to be expressed in the title think this objection
has no basis in fact. People vs. Liederman, 80
Barb l77) Besides, the article Is not
local one within the meaning OF the consttu-
ton 2 The counsel for the petitioner admitted az
oil must admit that the prohibition against selling strong
or spirtuous liquors. quantities less than five gallons
at time wthoat license Is valid. but he contcnded
that the whole statute rested ON sect ON three which
contains this prohibition and that because that section
contains other distinct prohibitions which the Lcsis
ature had the 70 impose the whole statute IS
VOID. cannot assent 70 this proposition Is unsouna IN
logic well law The third section OF act in question
provides that no person shall publicly keep SELL give
away dispose Of any strong or sprtuous liquors.
without a license and makes every violation OF u q
misdemeanor The petitioner is charged with selling
glass OF gin without license The power Of the Legis
ature to create this offence, and 10 punish u IN the
mode prescribed is unquesiionabe II indeed said
on the argument that the right Of disposition OF
liquor on hand at the time OF the passage OF tho
act was absolute, and that the Legislature had
no power TO impair this right by requiring a
license to be taken out as a condition Of selling
IL quantities less han five gallons. But this PROPOSE
ton was not proved aud needs argument to prove
that 1t has no Foundation in law. II being understood
them that the with which the petitioner Is charged Is
a legal offence and punishable such the precise ques
ton presented is whether the circumstances that the
Legislature Incorporated Ia the same act other and dig
tinct provisions which they had no power to enact WITH
ate the whole No authority for this proposition
was cited except the case Of Wymhancc, in B n Y H.
On looking that ind that, 50 far az IL contains
any auson to this subject It is an authority for the re-
verse proposition. The rule commended for would nc
repugnant to and common sense, and am salts
fed such rule has been or ought 70 DO estab hed
Mr. Sedgwick, his treatise statutory and constitu-
tonal law siys" The principle that statute u void
only far its provisions repugnant to the cons
luton that all provisions may thus be void and this r
affect other provisions OF the statute, has been re.
quently declared" Sedgwick, Const. Law, 4osl
. The principle is now well understood says ,a Me
has been passed. part of which is not WITHIN me
competency of the leg power such part tnecoi
will be adiudged void, while all other paris Oh
tho nc: not obnoxious to the objection w,l,
be held valid. Fisher VS. McGee a,s, niay ~ e.
If DO admitted 'n nrab,t that b ,ne publicly keeping
or the giving away OF lqurs, or sne seNing
to minors &C. or to authorize me necessay en,oce
dad does moi follow that transcended ts powers by
making the sale Of gin by .ne glass wthont nccnse an
law The question O. the validity Of the other provisions
Of the statute to vich illusions have been madcis not
them do not for this think 1t proper to express
them The petitioner must be rcmanded
A SUNDAY PAPER ANTICIPATES THE DECISION AND
ATTAcxs THE JUpdEs AND DISTRICT ATTORNEY.
After Judges Lot, and Gilbert had delivered their de-
c,ons in regard the constuonaIity OF the Excise
law District Attorney D. Morris addressed Judge Gil
bort as follows
If the couN please think proper at this time that
shouId call the attention Of the Court 10 most infs
rous aud cllous article which appeared in yesterday
New York Su~day Mercury in relation 70 the preceedings
venture say that in the whole OF Journalism
there never was more gross, wanton. unprovokcd ma
oes desire to cs shs a,sntion o. the court 10 i
with view Of making suggestion OF moton IN reicr
enco tothe matter i does seem 70 me that i Y time
publish articles Of this kind With the permission OF
the coa will read the article tho court has not
which has exclusive reference 10 myself because am
somewhat used siandors Of this kind. This article
says
scer W. iess Nat adsss GSs and oss of he
%
= 's q sf %
y .n
"a 81
q :I.s.. e
!. he own private coadues 20 ssov. rspro.sA
safely Do soi. Let The wine esssrs and bad rooms
psaon tho o1pse.sns csadidse Cor Governor Henry q
MURPHY be called wi!Ds. on Ats arssi 90 ed ss
changed mind and sss s.as.i pIsss.ss
% =s.: ;sa:s
Judge 0llbert--Tnst is enough.
Mr. Morris-I desire, IL the Court phase. to move in
such : miscreant would not only make an assault
upon the Judiciary, upon myself anf upon all concerned
IN the administration Of tho law csn DO punished and
NOT only that but cowardly crselly and maliciously
mako an assault upon female, ss this article docs
upcn lady respectable tae mother who bore him.
xyainst whom nothing can be said-a who could
utter the faschoods reference TO her that this mean
miserable scamp has been gully OF should be punished
y tbs court has any power In ne premises move that
u DO put in force
Judge Cibert-rhc Court will determine hereafter
vhcther will entertain themotion OF the District AT
prncy Az general rule, perhaps II will DO well enough
70 tako no notice OF natter or this kind for II Is din.
riit u not almost Impossible IN the MIDST Of much
RIGHTEOUSNESS OF tho press prevails 10 pay much atten
uon 10 tnom Tue burden OF TINS article seems 70 be
that because q democrat no should
cDnspirc TO dofy and overthrow the law wo
do not understand that sch ever has been or IL
principle OF the democratic party or that II required
Of democratic judge nat he should oct A
canuot be sound democrat unless he Is loyal Law.
sbiing citizen. In eeard to the proper course that
culd be pursued In reference 10 the article II seems 70
me that the District Attorney should take the remedy
~ Indictment However, we will look into the matter
and determine hereafter whether II il worthy Of notice
mo District Attorney then announced that he had OBJ
miled from Judge Dikeman warrants for the OF
sht editors OF the Sunday Merrry, and tho warrants
vse Ia tho hands OF the police.
THE ARREST.
one Of the proprctors-Mr. william CauldweII--was
Nosed by detectives Corwn and Frost O'Clock
ystcrday afternoon. He taken before Judge Dixie.
nan and gave bail In the sum Of 81, 500 to answer.
Iecisiens In Supreme Court-Chambers.
Before Judge Clerke.
jolly 10 = The People OK rel Edw ard Ccbhard va NJ
I Brennan, &c.-Asndamus ordered
VIM II Coleman and others VS. Second Avenue Rail.
tueI ,-ufox