The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-07-03
I'm . Case Where = Liquor Dealer Hs
No License 81 Any Kind.
COURT OF COMMON PLEAS.
Before Judge Cardozo

Deiorc Junsc NNfuolV.
JrLr 2-y-emiah Dri,cou u.s. Jackson s Sch'ars.--
This q motion 10 make perpetual an injunction
issued against the Excise Commissioners restraining
thorn from interfering with the plaintiffs business his
store, No. 50 Oak street.
Mr. Smythe, who appeared for the plaintiff, said the
facts In this similar TO those in tho Holt case,
except that Holt had license from the old Board Of
Excise which had not expired, whe In Driscols case
there license 1t all In the Holt the Court
had pronounced the EXCISE law OF 1866 10 be unconstu
ona and he presumed the ruling of his Honor In that
case would apply In the case OF Drscoll
read tho afdsvS x Mr. Schultz the President Of The
Excise Board, which went TO state that the defend
ants were abundanty able to respond 10 damages for any
injury that may be inflicted upon the plaintiff Asa Board
they had fund u one million one hundred thousand
dollars nom which they can pay any damages that may
out Of the arrest An AFFIDAVIT also read 20
show that the plaintiffs place Of business open At
al hours OF the day and night and that requented
by low class Of customers MT Tracy then went on TO
Of 1868 unconstitutional and void, he would DO
PEELED 20 seek redress under the provisions OF former
lawshe plaintiff IN this action asked the court TO be
protected in business which was unlawful. He
knowedged that he had license and had had for
three years and yet he had the audacy 70 come TO court
the law Of 1868 Of the question: under the previous
law OF 1857 the plaintiff Was prohibited from retailing
liquors without license under penalty Of fifty dollars
Section sixteen Of that law compcs the police to arrest
all persons who are engaged IN violating the provisions
which has never been repealed and cannot be ques.
toned fully sustans the police 10 the Of Driscoll
Section forty two says II shall be lawful for any
to se liquor the first day OF the week. called sunday
under penalty Of nfy dollars and directs the supcrin
tendent Of Police 70 enforce the law by arrsstng
the offenders the spot. Here. then, was
general Law under which tbs class Of OF.
tenders could DO arrested Section thirty Of
the says shah be the duty Of the police enforce
strictly all laws in regard to the observance OF tho Sab
bath and charges them 10 parties without waiting
for the Formally OF warrant The position Of the plain.
til simply this: He Is an offender against the laws OF
the state, the validity OF which he does question,
and he asks Honor that this Court may afford him
perpetual protection and immunity from arrest In order
10 grant him that protection you have got 10 demolsh
tan Police Law Of 1890 Now, then question arises,
will your Honor continue an Injunction giving
this man authority " pursue unlawful oc-
cupstion, and restt ming the police from doing
get legal remedy Tor anything which itself is Illegal
The principle was laid down by Judge DEMO. In q case
where man sued 70 for liquors sold 10 neigh.
Dor the Judge decided the plaintiff had license to
similar decision. In conclusion the counsel submitted
that the injunction should be dissolved for the following
reasons
Yira-Becau.e his business was an unlawful one.
Second-Because IL was the duty Of the police, under
the laws Of 1857 and 1900 10 interfere with the plaintiff
In the manner they did.
TAird-Because the court court Of equity, cannot
grant him any relief In an occupation which unlawful
MT Mckeon, who also appeared for nrscOll, In sup
port Of the motion argued that the court had nothing 70
do with the laws Of 1857 1890 such parts Of them
- referred 70 the sen g OF liquor bad been repealed
upon the psesage OF tho Law Of 1865 suppcsns, how
ever for the sake Of argument that the Law Of 1887
was In force, the most the authorities could do 10
Impose nne Of $50 upon the PLAINTIFF He not sub
iec 10 continual arrest and annoyance under the pro-
visions OF that act
After further remarks from Mr. Tracy the pa
pers we're submitted 70 tho Judge who promised 20
der bis decision Al an early day.