The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-07-03
tss.siUn Of Recorder nasketl SsstaiHms the
pemsr@ 10 indictments for
Vislolion OF the Law.
We DEcl mfs1K ACT UNCONSTITUTIONAL
JuSss Cserks, Of the Supreme Court.
Thinks tho Law Constitutional.
He Resases to Grant Intunctions
~ Present.
THE POLICE AND the ExClsE LAW.
&N &c. &c.

&c &c. DC.
Deoassom OF Recorder Haekett, Sustaining
mo DemU srer 20 radictme nts Tor = Vfo-
lntkOn or the Excise L&w-Hts Honor
Declares the Act Unconstituticnal.
COURT or amERAL SESSIONS.
Before Judge Russell and Recorder Hackett.
mo July term Of this Court commsnced yesterday
ssAge Russell VIII preside during the time the Court 10
h session The room was densely crowded. principally
~ persons interested in the expected decision by the
Recorder upon the argument made last week on the un
ssRstiiutonality Of the new Excise law.
As soon some preliminary business was disposed Of,
Dsssrder Hacket proceeded 70 read the following de.
s1Etn:--
TIE Psple de- George Kr1tsAato ard sir Others
tsd under pro,.s'os Of the Ercise act Of 1906
, shese various cases demurrers have been interpose
the ground that the conceded facts constitute
for criminal action, and that the law under which
sns indictments were framed and found 10 unconsNtu-
1onal The Indictments charge four generic onenoes,
piish distributed folows:-A count for selling
nau0Ts without holding the excise license Of 1885, an
- asposing Of The same publicly for similar acts esps
-eenny committed upon Sunday for neglect keep
Asv: and eth another count for neglect between
ssnrse OF each Intervening day and night In dnigh
's.d these various indictments !, charged tia,
sommitsed unlawiully and malicously-the ordinary
statutory words do not appear, such as giving
~
liquors with intent to sell the same disposng Of
sHaae with intent to evade the law. In novel
propey pleading followed the language Of the act
y question, charsing the offences created by II The
Kxsse law under consideration makes each and every
cot charged and counted upon a msdemeanor, and
spon conviction the offender to be punished by impson
zens In the Penitentiay II further Furnishes by pecu
sssy penalties and nsgaes diligence TO heeuppres-
Son Of volaors OF the law by OF premiums 10
ahs informers Of such violations II becomes misde-
tssanor TO- rst sell liquor; second TO give It away
q of wit n.
cut the seller giyer away, keeper dsposer holding
Re sspss,s, license Of , the act Of 1893 IN add;
stored by shenfs and police officers without
process q any Kind, simply. upon their own
end keep closed all such places for an indefinite term
- Overriding the demurrers interposed one duty
sssce the defendants under the law for misdemeanor
end 10 the Penitentary In misdemeanor there ia NO
o. s, On tSs Ssss w Taylor
stained for either Of the varions assigned by
sssnse for the Defendants the decision Of this court
gAosld be respected by the various magistrates and
beace officers until reversed by higher and appellate
Ssnr The question submitted is Of great import.
both 70 defendants whose liberty directly
sSnled, and tho people whose representatives have
k.med the act The indictments are founded upon
Asssed violations Of the late Excise act and they must
sand fall upon the judicial decision to be rendered
aDm is legality or unconstitutonality. II
ma indictable at common law to keep inn or
abshonse, unless disordery conduct was commonly
psrn.ted therein (overseers Warner, Hill
1el Statutes for regulating the sale OF
ssarc H., and commenting upon them, Bishop In his
sseatisc takes occasion TO write Whoever takes the
nj ean. from Rotations Of facts therein made sst
Ne enforcement of this class Of laws always DIM
sinh. have been unable 10 find In my researches that
- Great Britain statutes regulating the liquor traffic have
contained any OF the express implied prohibitions
against sales or the giving away OF liquor which have
becp Incorporated In OF the States OF the Union
I'd in Great Britain twhere the Church In harmony
nth the sovereign power might disposed 70 blend
epaedia laws with ethical notions am vet 10 learn
70 No lie 0tvu NJ
Al,er crime. The act In question Is so new and
secular in its main features that In giving my opinion
upon the points involved and the conclusion 10 which
havs arrived, deem necessary quote some Of Its
~nactmentk And first, would note decided and re-
arkabie innovation upon the license economy which has
fhers marked the legislative OF our State which
hAs authorized local authorities select and appoint
Weir own EIc.se Board The new act makes excise
act created out of Metropolitan police district but
w6hn the latter and emitting therefrom westchestcr
SANITY BY the terms Of section the sellers givcrs
Of liquor in the counties Of Richmond and Queens
supervised In their character and business by
commissioners, who not only appointed by central
Nd power a the seat Of government but one
q whom are not even residents OF one Of the counties in
vhcb he they exercise authority. Tho license fee OF
- dealers liquor within the excise counties are NOT
made applicable 10 the benefit OF the fund belonging TO
ahese counties, but materially subserve 70 Tighten the
burdens Of taxation OF the neghborng Of Kings
charged certain duties Section n
n the Metropolitan Police dsric, Inspector Of Excise
hae jurisdiction Section ~ As the boundaries OF the sew
ssai districts differ follows from the letter OF these two
usops that the subordinate inspector powers or urfs
oc1ien which his sueIort have not been invested with
us duties are such as may, from time 70 time be dele
ented him BY the commissioner The title OF The act
rsatss 70 the district within which the inspector acts
The bulk Of the sections AFFECT the lesser smaller
ertot By the terms OF the certain omissions and
ssons offences II low water wark on the West
chester shore Of Harlem river aud cease 10 he criminal
high mark The act divides persons who sel or
4vc away liquor into two classes the who sells or
gvce away TO the extent OF Ave gallons or in the
Deher In quantities less than Ave gallons (Sec ~ The
rst class not permitted 10 sell give away unless
sicensed and permitted" Csec Both classes are
sales fettcred by this prov sion lust As
land therefore unlAwfuD sales Of liquor have hitherto
Commissioners have had delegated to them tho ieisls
uvs Of fixing license Fee range between thirty
ana two hundred and nfty dollars Tho counsel fer the
people the Argument stated that the Board Of Excise
had made two distinct licenses and distinct amounts
The license only 10 be gwen to those alone who may
be approved BY the Board for good moral character
The act does not furnish any mode by which the con.
sence Of the Board may be sancd that evidence az 20
sns requisites OF char.cierahough in former Excise
certificates OF character from residents ana Others
within The ward OF assembly district have been regarded
= Slsn. ), Upon ,os The re-, .nmsni nothing was !. Is
ttseh with the subject Of character but IL IL only fair 10
presume that would seek for legal testimony upon that
vbose duty was simply to enforce the act This license
WIN obtained, 10 70 BE- hung up in the room, or place
where sales are made IL authorizes the holder seli
and dispose of-not sell or dispose of-,he bsyersres
named the act and In the license only such room or
licensed The eens. o 70 Be- srss es y s 70 %
W peace officers Who demand les production Not 70 do
90 by the terms OF the asst 10 70 furnish adverse
70 The legal status OF such declining or efusnr
There mode provided for licensing the giving away
publicly keeping similar beverages although 20 do so
n made much misdemeanor when not cen lad NJ 10
sell dispose of when licensed section 81 Those
licensed under this act 70 prevent breaches Of the
peace Ia their pisces and when their quetude invaded
commanded, under penalty Of bcng adudged guilty
OF misdemeanor, 70 forthwith remove all persons the
orderly we'll .. The their assistants
aud themselves--from within doors, and close Their
placcs and Keep them closed Section io Licensed FER
soul eIoep substantially those who keep ho,cls are en-
eHectrsy closed Sundays and between midnight and
sunrise 10 every twenty forr hours. Section IA The
licenses thus granted may be revoked, cancelled
snd snnuled By the Board 'rf u shall become
satisfied THAI the licensed persons have violated
any Of the provisions OF this act" Section "a }
The whole aos bears marks Of hasty consideration.
There aesmany serious considerations which have arisen
upor she Arsuments which demand attention witho ut
entering into the decision. Counsel FOR the People
rrged that oonhcn between the consultation and the
vatutet ought not 70 be lightly countenancsd surely
shis should be 20 whore forced construction OF the
constitution urged against the natural san,tv and let
- slasA