The New York herald., 1866-08-04
THE EXCISE LAW.
SUPERIOR cOusT-cnAmDess.


The Noone Case-Arsnnent the Constifu.
fionalffy of the Law.
Before Judge hcCunn.
AUGUST 3.-TimotAy Neone ps Jackson s. Schuks and
oer-The argument in this was concluded yestsr.
day Plaintiff seeks for an absolute injunction againss
the Board OF Health in his business LIQUOR dealer
In the argument Mr. McKeon, counsel for paint6 ~
ferred to the following extracts from the city charter %
show that all license fees belong the city Of New York
cannot be taken from By the State Legisature
And further, ! DO grant and confirm. for and ths
being and other according TO the usage and cssion
pracIssd in the said city OF New York in The times q
Chief Of this province shall have power
and authority to give and grant licenses annually under
Sesps yosSs and al puSs
sellers Of wines strong waters cider beer or any oheg
sort Of liquors BY retail within the city aforesaid Man
haitian Island their liberties and precincts thereof
And shall may be lawful for the sad Mayor Of the
said city for the time being to ask demand and receive
said such sum Or sums Of money as be and the person
to whom such license shall be given granted shall
agree exceeding the Of thirty shings for each
license all which money as by said Mayor shall be .
received shall be used and applied the public of
& o Of York and their .sS
thereof to be rendered. made given to any q
the Leutenants or Governors OF this Province for The
time being, or any OF their deputies.
Mr. Tracy argued the behalf Of defendants saA
court The plaintiff engaged in selling spruous liquors
small quantities to be drank the premises He does
not keep inn, tavern hotel. He has no license
from any The defendants with the exception
OF Kennedy and Cameron are The he Board OF Excise.
Acton, Bosworth, Manierre and Bergen the Board
Of Police The defendants Kennedy and Cameron
officers under the control of the Board OF Police and in
subject to the orders Of the Board OF Excise
The plaintiff alleges that the act Of April H. 1885, is
constitutional and void that the several defendants have
combined to execute it, and WILL by repeated and
by closing his place OF business inict upon him ire
parable injury To prevent this asks the equitable
Interference Of this Court by way OF injunction. Tho de-
PENDANTS deny all the plaintiffs allegations 10 re-
parable injury they show that they have not seized and
taken possession OF PLAINTIFFS place OF business but that
the contrary, the defendant Kennedy, the eyecu-
tive officer Of the police, has especially forbidden this to
be done. The defendants, other than the Board OF
Police Kennedy and Cameron deny that they have
thing to do with arrestng the plaintiff or any one or
They deny all confederation with the other DEFENDANTS
the allegations of unconsttutonality deprivation Of
rights and property &e &c are all denied 9y an the
till has standing in court 10 ask its equtabei inter-
ference Even his position is correct that tho law Of
April H. 1885, is unconstitutional and void the law Of
1857 remains in full force, and the plaintiff is In
slant and fagrant violation Of that act Yet he asks this
court to protect him in carrying that identical
business. In other words, this court is asked.
because law Is alleged 10 be unconsttu-
to Ss n . violating sseS ss
BY the Court OF Appeals II Is to be remembers
that provision in law which may be in ne
necessarily vitiate the whole law II may be uncen-
sttutioua in part and constitutional in part II is only
where tho unconsttuonalty inwrought into the very
framework Of the law that the whole falls For in
stance the nineteenth section Of the act OF April H. 1885,
may DO held unconstitutional and the rest Of the act
stl remain. Tho IL Of the tenth, eleventh,
twelfth thirteenth, nfteenh twentieth twenty first and
twenty third sections One all oftthem may fall, and
the act still stand This is probably true Of other
tions We only mention these because they have been
Attacked BY different persons II is true OF parts q
ton may b held invalid without inyadatng The rest a
the section. .M. ~
Mr.. TrAcys other points were in rsfutstion Of tA1
grounds that tho law intersred to the Obligation ~
contracts as 10 deprving persons OF their property
without duo process Of law a. 10 violating tho constitu
tlon of Tho United States 70 sonferring legislative
power a. to making criminal acts which arc innocent In
themselves to depriung persons OF liberty without
due process OF law. 70 the mode Of appointment
Of the Board TO the introduction Of rules a
evidence, a. 70 being prohibitory Law. so far .
Wesichester 10 concerned, as TO the appropriatioa
OF the moneys received to tho repeaing clause, -
as to Sunday, ~ 70 geographical crimes,n
By which ID meant making CRIME TO do In the disfree
created that which s not criminal out Of IL; becauss
provides for expsndng part OF the moneys outside -
the town and district in which Il is rascd because
coners Judicial power As 10 tho Jurisdiction Of the In
specor OF excise because the law provides csnse
70 give away liquor and yet forbds to be given away
without license; because requires TO Close hs
place Of business Sunday, and at certain hours ~
II is said his place Of business may b his homs. -
which he must have Acccsa
These points ably and very fully argued BY 3r.
Tracy when Judge AcCunn took the papers and rssssa