New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-09-07
TIE EXCISE Law CONSTITUTIONAL.

DECISION OF TIE FULL SUPREME BgNcH-LIQUOR
DEALERS MUST TAKE OUT LICENSE OR PAY THE
pESALTY-THg EXCISE BOARD CANNOT BIZ EN-
JoIsED.
The decision of the Supreme Court upon the cases
ofWlam Burke John Cnrier ard John Barrie PLAINTIFF
against Jackson Schultz President Of the Board Of Health
which cases argued and submitted on Monday was
rendered yesterday These Instituted to decide
the Consiiuonay Of the Excise Law In the cases note1
above the plaintiff, AK injunction against the Excise
Board to restrain It from interfering with their business
while in three other the Board bring suits against the
same parties for the penalty OF go for failure to procure
license in which the defense that the law was uneonstu
tonal and the defendants therefore not bound TO pay
All o'clock yesterday Judges took their seats and the
prene Justice Barnard announced that tbs Judges had
prepared written opinions but merely memorcndnm OF inc
form Of the Judgment which wond be handed to the Clerk
He further stated that they all agreed in the Con'titu
opay Of the law Ut least in part and that the Legislature
had the power Of opponaghe Commissioners for tie fret
year Tho following tue memorandum alluded to by J'Ice
Barnard:
1.-THE only question involved in the statement OF facts In
these cases whether the defendants should BE- reIaaeu
the l0th and 10th sections Of the Excise Act. .
Upon such cannot paas upon any questions as
the odnsuou1y Of the law except those necessary 10 Ho
dee sion OF tie cnge - 80, , al, ..,,.
J We are the opinion thnt tho 10Th and h section,
do not apply tho Board Of COmmlssones Ihht tue
conferred oy sections conferred 0ny OF
sab.s officers or members Of police. aeiher they ool
exercise al the powers conferred by these sections may De
DOUBTED bur Il GOT necessary to the decision oil ths caso "
pass upon that question $3.50. - 49,
"fg5 III ay such ofesr shond illegally exercise such po"
ers m ample remedy exists by action and where lla' '-0
case an Injunction Is lot the proper remedy -, c..
1--WE eTurc NJ opinion any other portion OF the stat
ute because 1t is not necessarily Involved IN the decision Of
this case. A., ,.,-.,.,,.n
Judgment IN these ordered for the deiehdahs''
Tho memorandum in the other cases Is as follows
The B,ard Of Excise against John Barrie Same against Cur
rier same againss Blfss
nv the Courf-iu these the p1thi clam torecoft
psn.y for selling Qu1r while TIC defend lnts rad e'ou
license 1, ss hquors granted 10 1855 stu IN force In Two
e, tho saes we're Sunday IL TIE other on week
day. 81 L.. a.. Ill ,o,ri,rons
ouor IL police regulation and that tie Lea isAa5e NAV "
statute alter regulations for tie sale Oh Liquor ron Nba
thew were Whom the ce1se was granted. ..,..,,st,c
~ Tnai the Legislature had the power. het
be license 10 prohibit The sals OF liquor on nun1 mi
ny That the license being more matter OF Poioe
& a not 10 be considered contract Dut Ma! DC tloAu
a. lie Lsgssturc modified by them In s1eA Banner ~
hey shall deem proper. -. 81, N,.t,o,.
M he AfreAt OF arcs sdOud b. declared Noi tney "ou
80 esr he whole act void In such cases. WHERE par u
tse law h In conflict sith TIE Constitution ara ua phl Is
s@paTshe iron the resduc thai other portions ~ e law
can enforced without reference 60 H. the
part o1y viii be condemned peI Sften, j. Is N L., So
Tho paiaufs are entitled 70 Judgment Tor Tie IenAdy'