The New York herald., 1866-06-15
THE MEW EXCISE Law.
Is IL Observation-Disclosures nj s-Interesting Ar
gument Pro and COn.-The Discussion
20 be Continued To-day, Sc.
COURT OF COMMON PLEAs-cHAMBERs.

/
20 be Continued To-day, Sc.
COURT OF COMMON PLEAs-caAMBERs.
| Before Judge Cardozo
George W. Holt ps The Excise Commissioners. The
pouncement that the argument lin this case involving
the question Of the consttuonality of tho Sunday
liquor law would take place hafpast ten O'Clock
yesterday morning. attracted to the Court Of Common
Pleas large assembage OF parties interested In the sub
ject The chambers crowded leave scarcely
standing room. and the greatest ntercs. manifested
| in the discussion
The proceedings were commenced by Mr.. George
Owens who read the complaint Of the plaintiff in the
case and tho preliminary injunction granted by Judge
\ Cardozo
| Mr.. Charles Tracy counsel for the Board OF Health
next read affidavit by Mr. jackson Shutz setting
forth that tho plaintiff had not been compelled 10 obtain
c" 'loeao rom WY n.AC'Sc S"niuasonuis anu con-
radctng several allegations as to the probable injury to
| the plaintiffs business.
The counsel fer the plaintiff thon proceeded to argue
against tho consutonaliy OF the Excise law prefacing
by some severe remarks as to the iproprety OF Mr.
| Paul Faik setting himself up as the champion of the
liquor Dealers when the fact that the Of Holt
had precedence OF in tne and his client should have
all the honor of commencing the test action to the
validity OF the law in question 1t would have been
decent, he considered in NJ Faik 10 have waited
until the adjudication OF Mr. Hots before rushing
new one upon the attention Of the courts and the public
The counsel had examined the law with the utmost
and deberation, and, although oLer eminent counsel
had procaand it to be no violation of the federal
nouncng the law to be violavo of both those inst-
ments He intended TO back his statement with scch
proofs, Authorities and arguments as would show his op
ponents that they were no. going to fight with
mere mere shadow, as they seem to have imagined
What ssy we're ao. the facts Of the cases On nae
to sell liquors under tho act OF April 16 1857 Ito
license to remain in force until fty days after the third
Tuesday in May succeeding No limitation tho
hours within which the pla ntf cond sell was imposed
by the law, except that it prohibited all traffc on
sundays. and on election days within quarter Of milo
rngemens conform"d and adapted TO tho duration
95 the pr privilege or or fanehss as declared by h law
come operative and to annu his rieh to sell under that
License G, May l. 1888, tho piar,fT had on hand,
in reliance upon the License worth four thousand dollars
ard upwards The principal effect Of this law upon him
to destroy the business he conduce at night after the
hour of twelve o'clock, which, It's receipts averaged
twenty five dollars night for three months previous to
iaul. he finds with the law is, that by contracting the
time within which he is to sell expose for sale proper
ty acquired the faith of license which allowed him
70 keep op twcntyour hours on every secular dav he
has been deprived OF the opportunity of conducting his
business, and so OF the market assured to him by that
license which formed contract between him and the
Stale Of New York, and for which he paid It's agents q
valuable consideration nnd he insists that the conduct
OF the state in resembling abrogatisg that right is
violnvc OF the federal and State constitutions II is
believed that tho State abrdge the tmo for which
the license had originally to run, can diminish the
hours for the assertion and enjoyment OF tho rights
under H. and yet retain the consideration paid for both
either it could have annulled the license the very
paid for H. This is proposition destitute Of reason
that one would suppose It would hardly be asserted and
The counsel argued at great length as TO the proprety
Of Granting an injunction under the circumstances
g the r.. aSo shar + n aa o 70 the
prevails If the old license is in force is property
and the plaintiff wants to be protected in the enjoyment
Of that property during the controversy II the new
license Is in force is property, and the plaintiff seeks
TO prevent It's beng taken from him pending the action,
beaus he has resored to tho orderly and law abiding
II
through the medium Of our courts Of justice That tho
constitution clear from article one section 10 sub
division one, which provides that mo State shall pass
Te law Of esc sc
1sGoand repealed all acts or parts Of acts nconsist
en with the provisions thereof 50 far as the same should
county Of Wcschestcr. Section three provides that
rom and after the first OF May, 1896 person per-
exclusive OF tho county OF Wcschester publicly Keep
or SELL give away or dispose OF any strong or sprituous
gallons time unless he they may be licensed,
pursuant to the provisions Of this act and may be per-
mitted by IT," In resembling the law Of 1851 and the
licenses granted under it. and making it mstemeanor
To assert the rights secured by that law and the lccr
under it, before the latter bad expired the State did
a law lmpairing the obligation of contracts f n sovcr-
eighty make a contract with it's citizens The
counsel read number OF authorities 10 sustain this posi-
ton. franchise could not be cancelled by tho State
except in the exercise Of eminent domain. license 10
liquor is much franchise charter 10 bank
n turnpike company ferry company How could
IT, thcn be aside by anatical ncfarous and in
famous exc sc lawP In this case there vas no claim
OF the exercise OF eminent domain, but the Lecis
leture merely took the property Of a man or set
Of men and Transferred u to picked class Of
provisions OF tho State constitution which provided
that should be disfanchised deprived OF any
OF the rights or privileges secured TO citizen thereof
unless by the Law of The land the judgment OF his
peers and also that person should be deprived Of
life liberty property without, due process of law II
the Excise Board in their discretion deprive Of
their property Is II not violation OF these provisions Of
tho constitution and should the Court OF Eqry in
toiere to give rcicg Tho counsel contcnded that the
law assumed TO deprive men OF their property without
due process of law and that my act tha, assumed do
SO should be declared invalid BY tho courts. Mr. Holt
had vested rights when the new law was to have become
operative and therefore could not be deprived OF them
II II should be said that the law Of 1866 does not take
| away the right to sell, but merely regulates tho
hours during which II can be exercised, the answer
TO tiat IS, that from and after May 1868 the right
only be on owed und ccn 70 Issued In conformity
with the law Of 1850 Besides II the power shorten the
time during which the right Is to be exercised conceded
TO The Legislature, where ID II 10 stopS II II can say
that the privilege against existing licenses shall only
be enjoyed for eighteen out Of every twenty -four hours
can conGne 1t to minute out Of that period Nay
can take away the privilege altogether II when tho
plaintiff bought tho stock which was unsold on fay l.
1885, was stamped Of It's characteristics aitr
brtes with tho privilege OF being sold at any time during
| any twenty-ionr hours oil any secular day, tho
legislature could as well take away altogether s saabo
Characteristic , as limit Il The assertion Of the plaintiffs
1906 beng made msdcmeanor by section 10 OF the
iaw Of lsde punishable, on conviction with nnc Of not
less than thirty dollars nor moro than one hundred dol
lara or with imprisonment not less than ten
thirty days, or by both such nnc and Imprisonment Is
maaesiiy unconstitutional within tho principles air ady
cited. The enjoyment Of property the Legislature
could not take away from the plaintiff 10 made an
offence and he is 10 be fined and imprisoned for It.
| No discrimination 10 made by the Law Of 1885 In
reference TO property acquired licenses issued be-
fore May l, 1906, under the law Of 1851 The
whole scheme and plan Of the law OF 1868 that II
shall take effect against every person from and after
Nay l. fse6, and every violation OF the law after that
time s made offence, whether occurring tho part
OF tbce claiming under licenses granted n 1885 or
In reference to criminal laws, laws creating offences
the principle that law may be void in part and valid In
part does not apply. The law must stand II has
been enacted TO crimes not stand at ALL" This prin.
cpe rs very clearly stated by Seden j., in wynehamer
vs. the people, from which the counsel read 81 length
After dwelling considerably other points the
concluded folows:-Dccatc the position OF the
Court may be in Undertaking TO say that the Legislature
OF the State in any of its enactments, has travelled
beyond It's constitutional powers II Is believed that
viii meet It's duty boldly on this occasion. However
much pleased those who claim for themselves all the
morality OF the community may be with the present
| or any other law which restrains aboshes the