The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-06-22
E x G S G..
THE NEW LIQUOR LAW.
Important Judgment Of Judge
Cardozo.
He Pronounces the Act to be
Unconstitutional.
'iNJUNcIi0N GRANTED IN THE HOLT CASE.
9%hs Legislature and the Board
Of Excise.
.>~>~>-o~-~
More Arrests for Alleged Violation
Of the Law.
&c. DC &c.
9&he Legislature and the Board
Of Excise.
Court or Com mon Pleas.
Before Judua lardazn

Court or Common Pleas.
Before Judge Cardozo
Juss 21.-Hon ua The Commissioners Of Ercise--Ths
CASE which involves the right Of selling liquor on sun
days, came up for Judgment yesterday Tho court was
crowded with large number of persons Interested in
Abe liquor business.
Judge Cardozo delivered the following Judgment
Immediately the submission of this case being
convinced that very little, II nythng could added
TO the argument Of the distinguished counsel for the
plaintiff and being informed by the learned counsel
ehe defendants that no should not in the Faik
va the same parties argue further any OF the points
which had been discussed in thus case and add
that his arg mont already made had exhausted the
suiectand the case beug OF great public interest
and Importance, commenced the examination OF the
matter putting aside all other engagements and devoi-
Ing myself 20 1t night and day except when actually
Oupied In court but intending, nevertheless Withhold
my opin until the fa had been finally submitted
70 mo- But the proceedings before the several is
tratcs yesterday demand that there should b.
no further delay and that should make known the
suits Of my Investigations, and therefore proceed
express my views as lollows:on i4h OF April, 1906
the Legislature OF this state passed law chap 57S Of
the Laws Of 1860 entitled IAN regulate the OF
intoxicating liquors within the metropolitan Polio Dis
rct OF the state OF New York; by tho third section OF
which provided that from and after the day Of
NAY 1865 no person or lcsons shall within the said
wcstcheser, publicly keep SELL give away dispose
Of any strons or sprtuous liquors Wines ale beer
In quantities less than i've gallons at a me. unless
% he or they may be licensed, pursuant TO the
provisions OF this act, and may be permitted by
who may be licensed. how application for licenses
shall be made, aud the duties OF those who become
licensed; and complapce with its requirements rs
enforced by very stringent provisions by sixteenth
eection IL Is declared that person who shall violate
any OF the foregoing provisions Of this act"-to
OF which have 70 crred-shall for each offence be
guilty Of q misdsmeanor, and conviction shah be
punished by fine or Imprisonment or both. The act
como Of which isd sputcd but, in the view lake OF
che case, specific mention need DO made of them.
Prior 70 the passage Of this law the plaintiff this case
under tho act Of the Legislature OF April TO- 1857 fcap
S2s 405l. and In conformity with its provisions pro-
cured from the then Board OF Commissioners Excise
for the city and county OF New York. License an Inn
keeper ito sell strong and spriuous liquors and wines
Dc drank ia hs Louise and his premises from
DAY Of June 1885, until that license should expire by
operation OF law, be revoked for violation OF the pro-
visions Of the aforesaid act BY the fourth Of
shet act oil licenses 'when issued shall be in forco
unless revoked unit ten days after the third Tuesday
May next succeeding the gran. Of such license and
IN the city Of New York until nfy days thereafter BY
the twenty sixth section which alone coners tho right Of
revocation the Court OF Sessions authorized certain
CASES. and upon notice TO the party Interested to in
auire into tho circumstances and to revoke license
granted to psnon violating the provisions OF the T.
No right OF revocation except for and TO be
sised In the have mentioned by
Ac To procursa license under that the plaintiff paid
the Of thirty dollars, the required of him by
hs then Board or Commissioners-nx by them under
and pursuant 70 tho authority conferred by the second
period specified in the license unexpred on the
ma day OF Nay last and no provision for compensation
made hv n. se .' Of iss nar 81 srs
any clause In q saving the rights OF persons
vhsse license: had MOT then expired Under these
eorth substantially the matters have mentioned, and
sexnF, among other things that upon the faith Of the
license under the act Of 1851 he had bought large
sock Of wines and quors, a considerable portion OF
which yet remains upon his premises and unsold that
he wishes and Intends " exercise the and rights
which ho claims secured him by his first license
end 70 prosecute ibis business Notwithstanding the act
81 1888 and he insists that II the defendants O.
them who charged with the execution OF the last
mentioned statute should him 10 be arrested,
viii be very numerous he will sustain great and ne
parable injury. temporary Injunction, restraining
any interference with tho plaintiff his business upon
the part Of the dcfendan by virtue pursuance OF
che act Of 1862 was granted by me- and argument has
been made by distinguished counsel upon both side,
upon motion TO continue until final judgment the
ation With the question whether the of 1866 be
viae mpoliiic whether It be calculated to advance
70 retsrd and prejudice the cause OF temperance,
have. In my judicial capacity, nothing 10 do. To oil
aHuments ON those matters, and similar consiera-
Hofs have only TO apply tho spirit Of the remarks
whh made on another aston when II argued
thai ,ny certain view OF legal proposition ''woud
satisfy the public" said then, and gay now ''tho
Goes III, law demand With that ybody and
win be .atsned for that il the law and ours is a law
sbdlng oomm unity" Considerations OF policy be
addressed To tho legislature not 20 those who
charged with the duty Of expounding It's enactmeuis
em sacrcdy obi gated mlarIiay TO ascertain tho law
according o my best Judgment and when have thus
arrived at acouciusion am similarly bound 70 declare
spai Questions arise In this case-first whether the
pAntin has such AN interest as entities him
whether the remedy by injunction Is appro-
lriatc; and lastly and most important whether
tct that tho plaintiff by applying for and accepting
license under the present act his surrendered rights
b might have had under his previous license and that,
teeore he cannot maintain this action and, Of course,
H DO true that he must ultimately b. defeated IN the
ssn, the preliminary nianolion shoold be dissolved.
But with tho learned counsel for the do
PENDANTS that any such surrender has been shown is
suggested that any formal release vas executed BY
ne plaintiff that the llcense delivered
tss defendants; but am asked 10 infer Ia surrender
fra the mere fact Of applying for license under The
seaHe IA question THIS think unwarrAniAbe The
paiAt.s application under the statute NOT In
oomgs with intention 10 assert tho validity Of his
ho.nse We oons,itutiansly destroyed BY Tho recent
Lssns .n,s he cseded new one II shs new statute
ao.hns ~ s,ns under s void law, su. he los;
nothng ~ ,hing ti.t which vorthess Besidea In
one ses-e .ns sppicson for The now license WAS -
sbe 'omlan. hsrges compulsory because the art
ve1,t,,nh .a NJ which every law preslmptively Ia,
ns did DOT wish os' Apply roy ns PC
Purvnss On w. OF bis license under the act OF 1907
cont nac The Danes b.s % no s s 0o
,, reqnsa % ae,sralne be grave question o. the
Slu,ona ,s,,an and the fact that he placed
upheld 20 .o ,ss pre.as,e 10 the absence Of any
der his previously aonrei nights o. 20 aenv N him The
privilege Of impugnin 10 the courts the oonsutionaty
. the siauie Inc 9eniap,s cannot b. heard 70 say
sLat the plaintiff had W. Itirnaive 10 take Iren,e
from them or not ss pf,.ed, and that Therefore his
doing - vas volun ,. ..s At the same time they
90 sell liquor at 81, and nu-. loas boib H.
is9es aaas sts ,as.n 0 i ssso Sy had estao
oven though II be trtp that the desndants did -. ~,
much invite TIE plaintiff 70 make no application sue
takcn coerciseu. there pretsDee for inerrius
surrender OF previously acquired Interests am tbogc-
fore q opinion Una, NE nrst objection ravd BY the de-.
Sesdsnts IL unrnabs and must be o,ersled and tia,
abe plaintiff the license granted hin under the act
OF 1857 coperred vested right which sil nec.ssarily
b. Involved In the third questiou whlth have stated
hss sucs an ateres win enable him 10 como into
court snd ask IL jgdgmen, in NE premises This brings
mo y the next inqliry which q whether under
the circumstances Of the case, the remedy by
snjsnet'on VII be proper.n the act in question bc
coubt OF the nsht 70 grant an Injunction pro
sect the property of tho plantin la Thompson va
The Com missoners 81 the Canal FUND which was A su
by taxpayer, Mr. Justice Mitchell aid that relief by In
function vas never granted mercy prevent an ocer
nom carving out law of tie STAT beoas IL was deemed
vnoonsutuiiona unless some cquty wa NJ the fornda.
son Of tbs b, which ts rFacisoy tne ease here The
oSrond aha soau.ol