New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-09-29

l
keep pik DAD and charge toll the night 70 isry
gastengrg over public waeIu end ohare or exact tr
private Franchises ard property gratis for tie security Of
ahlch faith o, the state pledged And they can ne more
ars against the grantee thar ooud grant Of land y let
lss patent the grant Of any piyae corporate nights aIl
Aldf be properly in any sense it cannot be destroyed BY
Fesfi-Tbe authorities cited BY the counsel for the
respondents do not sustain The position that the "esa
There are but two cases cited that ore ct AZ n point VIZ
Colder agt Kerby Cray 597 State sgt Aanes . y. L.
In the hrst or these cases there argument The
ces DO authority and the case was ydent ascaea on
Houet was pced o. the express ground that 10 that case
lad under the Eiatutss Of NeWalpsle tie license Was
sraiuy without eoasdaon OF condition on ne part Of
he grantee And that manifest thst II was not ID fact
or undeitOOd BY tie parties 20 be contrast ARD ILe 800
ney be said 10 regard 70 the statutes Of Misachusetts While
precisely is the viii the ststlie OIL OK
I'm But am met here by the objection toat even u tl
license IS IN the nature q contract stu 10 authorizing W
Legislature exercising rs police powers ana eOaa uoI
authorize contract llch would qepH'e u o. I. P'Me -
by tie oct OF C but the avel exercise Of This same p
lice power TO us ol elton ne are several o ~
1866 destroying t. was, far os tie granting or reYoslng
the license Is concerned an sel o. ponce pol cSI
sheraton paid. Of a privilege or haech'e 70 carry On
as the mere jet Of doing the business Is coactle 10 no man
cr form affecting ne public I.e o'lsf was tle lelIlH
ton dessH Of that right Tic two acts are as distinct
in which tho business Of The country shall s conducted
dstng1slabe from Tie OF destruction aud deprivation
This made apparent BY tie fact bet there H. not
else II Oh and extra ruary police powers Of
tie Government upon the business q TIE licensed person.
The Legislature nsy prescribe the mode and IN which
the licensed person sl conduct h business the hours 10
shall open or close place Of business the particular
SasPs B5s ben tIey stteHpt 10 60 fr and attempt 70
deprive bin Of The right granted altogether they exceed The
limits Of police power and renoh upon TIE '0s'eu CONTRACT
g. But assuming that the acts authorizing and revOkng
those licenses 70 be the exercise Of the police powers
here attempted The police power is not absolute. Tie
object ard purpose Of many OF me eoIsrtntional pro
p9e 90pe Taylor Porter StPra) The sGe OF permit
70 sell liquor for the short period Of year and fifty days
lo an unreasonable exercise Of power or authority And
should be held TO be psHdd to that particular a during
the continuance Of the license The Legislature cannot Tu
ae every day 10 the exercise Of police power The man1er
Of the exercise Of conceded powers must be restrained within
ST-It Is claimed behalf OF the respondents that the
power 70 revoke the licenses was reserved by ie terms OF TAG
Act Of 1854 The teyerso the case IA express terms anu
plain as language speak the Legislature OF -, rot
only did 70 itself power OF revocation out eN
presy parted with It, aud vested II IN tribunal PROVIDED r
in the act II express Legislative enactment that by
power authority whatever Should The licenses be an-
nued except by the authority and IN tie mode provided BY
the statute. 49,
any person from publicly keeping giving away strong or
sprtuous liquors &C. quantities less than five gallons are
Is That liquor is property That in aud ofi.se when kept
and unused harmless rai. Iat 10 only the i'm.
100 weli settled to adait Of argument
This provision Of The act may work destruction Of oil
liquor owned by any IN quantities less than Eve gal
Ions 10 the Metropolitan District.
5d That The act does intend to prohibit the ksrQ Of the
liquor and not alone the keeping for sale clear nom section
which provides that persons not licensed may keep as
well sel and dispose Of liquors In quantities more than five
"a This provision in connection with reclon &c Of the act
MAKES it nisdomcanor puuishab by fine imprisonment
and penalty for any citizen % keep in bis house OF place Of
business liquor less than five gallons unless DO keeps u
concealed While section 10 Of the act authorizes the summary
Selling and keeping OF the licensed premises where he liquor
is kept to the exclusion Of tho owner.
g. 1t idle TO say the oct don't mean mat II expressly say
ths' and "T'hSs 'Fg 9sty maTa,f eS4sia 9aa
i1dRes OF whether the violated They vested with
Judicial discretion and matter how much they err in udg
EigkhSectons 10 TO- and 90 Of this eet are supposed
be direct conflict with the letter and spirit Of those
provisions Of the Constitutions Of the United states ana
state of NewYork which intended TO protect snd secure
the personal liberty Of the e{zen tese sections ae Deos
supposng otherwise. The Commissioners OF Police aud the
Superintendent Of Police parties TO the action The case
Gnds sec Alb statement in Barrie the Board that The de-
sI"ns those sections And the case expressly submits the
question: whether they enforce them or not That pre-
question OF the controversies submitted without
The sections OF tie act above cited confer the following
bitrGry and unconstitutional powers:
l. 10 Judge aud determine when and what is not alone
breach Of the peace Dor that may be said to be an act 50
clearly defined law and common understanding as not TO be
MISTAKEN but also what Is disturbance OF disorder IN
Having determined that there is disorder" or dis
urhance" the licensed may then assault and re-
with force and arms necessary not only suoa PERSONS
es are engaged IN the disorder disturbance but al
psoas the place and close and keep the place closed 1t
IS clear that unaer TINS provision an innocent person Iu
fully and lawfully IN his inn OF hoe may oe assaulted ana re-
moved without power Of complaint or redress , .
The licensed person may clearly call to bis aid not
only Officers but other persons TO ad hin IN lis eet ald
they may justify under his authority 49,, .,,.
Again section 70 OF the act il is submitted authorizes the
following arbitrary and unconstitutional acts viz This sec
ton maaes il the duty Of every s1eHH constaoe pol1eman
la0a Of ali the provisions Of the act And II necessary
by summarly closing aud keeping ell lee IN winch sl9 be
ministerial officer may Of hs VIII knowledge opinion
and without any cath or evidence or charge ana without any
H. Whether any hoaour found in any unlicensed place in
quantities less han tye gallons. not publicly kept
And may determine the qgaay so far as 10 throw the burden
OF proof 10 tie contrary the owner. (Scc 81
He may sdudge and determine whether OF not person
10 x6isri6 Ana necessarily included therein the power
10 determine whether certificate produced IA any gwen
case, is not a license under the act
rass question Of proof and justify arrest he time o.
night hen 10 II O'clock and determine the distance OF
4 section prohib The sale or git Of liquor 70 any ap-
prentice minor under IL years OF age Wlth kL9N4'lee
reasonable belief that ne person IS saea' Inc Of
ierse here consists not in tie act but IN the gnt{
knowledge OF belief 1t u the d9y OIL we oLcef 10 compel
the observance and prevent the violation Of this section
Clearly this authorizes him to determine as TO toe guilty
knowledge belief Of the seller anu be protected BY such
So under section 10 the officer is empowered necessarily
i9 70 adlulge In cass Of any attempted Gin in his
presence glass Of liquor whether the person TO whom
iuch sale s about 70 be MADE IS or not eileT az "a
brs drunklrd an intoxicated person or under the
"ilfEsHc6 Of liquor"
90 THIS zee on 2 is not confined TO licensed persons but
applies all the OF the district Aud 10 connection
VIA sections lG aud ls il visits al tie pains and pecae OF
the oct including theFuum1y seizure of his property up01
any citizen bis own house OF elsewhere stall dispose
OF o. give glass OF liquor any ooef person VIC mfy be
unlr influence Of gaOr AID TIE same may BE- said Of
saction II.
So by section - the officer. IN tie exercise Of his
Tenve pusoy power uuder section ~ nay deter
liquor being sold or given away against the
requests specified Ia section -
e 50 by section IA tie may determine without proof
whether o. not licensed place iskept "oeery AID quiet,
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