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

Proceedings Taken Against . Sunday
Paper-Ono of tho Proprtetors Arrested.
Judges Lott and Gilbert delivered their decision In the
Supreme Court OF Kings county yesterday In the
OF John h Ketchum and James Do Vaucene, who were
arrested for selling liquor without license, and whose
discharge from custody had been demanded on the
ground that tho statute under which they bad been
arrested was unconstitutional and void
After Judge Lott had delivered his decision Judge Gil
bert remarked before rendering his that after examining
the case very carefully he had come to the
clusiou as Judge Lott the law constitutional in
all respects aud IT'S violation punishable by ne and
Imprisonment. The only difference between the two
cases was he said, that one was charged with selling
appejack and the other with selling gin The following
are the opnions Of the Judges In full
OPINION NJ JUDGE LOTT.
appears by the return 70 the habeas corpus 10 the
matter that Do vsuccne Is In custody on acompant on
oath made to police justice Of the city OF BROOKLYN
alleging that he the said De Vaucene, did the 10th
sell and dispose Of quantity Of strong and spirituous
liquors. wit: glass Of appejack whiskey, contrary
70 the provisions OF tho third and eighth sections Of
act entitled an act TO regulate the sale OF In.
toxicating liquors within the Metropolitan Police
District OF the State Of New York, passed April
a. 1865 None OF the facts alleged Ia the return de-
Med and 1t becomes necessary for The proper under
standing and consideration OF its effect to refer TO
Of the provisions OF the act mentioned In the complaint
The first section of const tues and creates tha persons
who are and from time TO tine shall be Commissioners
of the Metropolitan Board of Health Board OF Excise
in and for the Metropolitan Police District excepting
excluding the county of Wcstchester and declares
that from and after the passage OF this act they
alone shall possess the powers and perform the
duties Of Commissioners of Excise within said Me-
ropoitan Police District, except in said county OF
Weschester The third section then declares that from
and after the 1s day Of May 1885, person persons
shall within the said Metropolitan Police District, exclu
sve Of the county Of Wcstchcscr, publicly keep or SELL
Wines ale or beer in quantities OF less than five gallons
at time, unless as he or they may he licensed parsu-
ant to tho provsons Of this act and may be permitted
else shall be subject 10 further provisions heroof have
power to grant licenses 10 any person or persons Of
good moral character, and who shall be approved by
thom permitting him and them for year from the
time the shall be granted TO sell and dispose Of at
any one named place within the said Metropolitan Police
District exclusive OF the county OF Weschester strong
and apirituous liquors. wine, ae and beer in quantities
not less than five gallons At time, upon receiving
shall not DO less than $50 nor more than $3.50
The eighth section prohibits the sale by persons
day upon which general special election or town
ting shall be held within onequarter OF mile from
the place where the same shall be held The sixteenth
section declares that every person who shall violate any
OF the previous provisions of the said act shall for such
offence be guilty OF misdemeanor and, on conviction
nor more than $780, with imprisonment for no. rss
than ten days nor than thirty days, BY b,h
shall be liable TO a penalty Of $50 for each
offence recoverable In civil action In the naIne Of
said Board Of Excise and the twentieth section makes
che duty Of every magistrate entertain complaints for
son under oath twenty third section provides wha,
ties expressly declaring that nothing contained in the act
shall divert from tho 6tats Incbriae Asylum such
Of fees - an now ~ e. sa ga a
provisions prescribing tho duty and regulating the con-
duct Of the persons who may rccevo license unaes
disposition Of strong and spiritous liquors. vines, ale OF
beer and impose upon shcr constablss or oicers OF
UPON them certain powers for tc execution q ha. duty
which, 10 tho view have takeS Of the case - neves
2 . .as 70 n Sss sHs the
o. the said thersby rsssp 20 g. zoe same
shalt apply % the ss,4 ana thu he aid
eep' .s soH sess .@sdiaey appears % have
ess sea ocs whom The g. copsinoa Of was COM
mtDed have already stated that Of the aliega
tins IN tho return were denied and hero ada that y
gam ent that at thc time OF tho sale mentioned in tho
complaint made against him he had no license from any
SALE but he claimed and insisted that the act referred
70 therein was unconstitutional and ~hoiy void, sod
for which he could BE- taken detained ia custody
win brisny examine such objections against
the validity OF the act appear 20 % Applicable 70 no
ton OF section 49, article Of the constitution of this
State which provides that no private local bin which
may be passed by the Legislature shall embrace moro
than one subject shall DO expressed ia tho titie
Tho objection assumes that the act In qucsn s OF the
character rcfsrrcd that section. This assumption
IL not warranted authorized by the provisions OF
The act Is in no sense private one nor 10 H. in ny
opinion iSSs within tue meaning e. o. .1e consuou
limited district Of the State but II relates 70 subject
affecting the general welfare and interest OF the whole
Stats, and not Of that district only At the tme OF It's
passage the Excise act OF 1867 (chaper 62s Of Laws
1871 entitled IAN act 70 suppress intcmperance and TO
applicable 70 the whole STATE was in full force and 1t Is
apparent from the provision OF the act in question that 10
general scope and object worc 70 alter the general
other matters which they Inconsistent The effect
OF the change s TO regulate subject Of vital interest
and importance To tho whole community by two acrs
instead OF ono, and IL % substantially the in its
operation single law would be- winch declared flia;
the sale or ardent and sprtuous liquors IN one ror,on
Of the state should lie regulated In way by certain
regulations and In the residue In another way by differ
ent rezuiatons II, however. IL be conceecd thai
not embrace more than subject which IS the regu
lation OF the use OF ardent and spiritaous liquors.
tropoian Police District and exclusive 81 wcstcbcscr;
It's different provisions all tend 10 that snd and the tito
saluen,iy saprssse. thu. subjo! Al,hoagh rcisrs
except the county OF wesichester that ON sson Is no
Objection Tho district doos In Act include all the tor
also declares IN general tcrns that the act regu-
la'es the sale o. intoxicating liquors This Is
sa an 'sss. e e. Sun xSss. a.u
asce Company against the Mayor &c, o.
New York, soIdeo 2a2. and Brewster the city Of
pie va the SUPERVISOR or Grunge, II v Rep aa5)
II has been docsded that 10 any sbes. rs embraced m
render The act void II is st valid 20 the subject that Is
expressed therein The Town Of Flshkill against the
Fishkill and Bcekmantown Plank Road Company ~
Barb Rep 83A The people vs. the same, ~ lb, p 4t6,
&c. The People vs. Mccain, 10 n. Y. Rep p IS, &c
Williams W. the People, ~ h., p. 40b, 40 The
People W. Lawrence, 90 Barb, y. 1884, &cl
second II Is claimed that the third section OF
the dvcsts the Of hts property without due
pensatisn. Such not the effect Of lis provisions
so fr relates TO tho sale Of liquors specified therein u
Is substantially the the old Excise law, and =
merely regulation OF such sale, and II entirely DIFF
fcrcnt from the prohbtory Law entitled IAN act for the
prevention Of inemperance, pauperism and CRIME,
which declared 20 DO unconstitutional In the cas-
OF wynchHrcn tho People, and The bople
Va roynbcc % Kernan, p. SIs &c, II must
tent for the Legislature 70 regulate the salc
and disposition Of spirituous liquors That rincipie
fully recognised by the Court Of Appeals inthe two
cases last cited and cannot now no questioned Third.
II Ia insisted that certain provisions OF the law rceuat
ing the conduct OF persons having licenses and giving
the power OF arrest TO public officers and 10 dose and
keep closed any place in which there shall hive been
any violation OF tho act are unconstitutional, and
that the entire act is therefore voic l do