The New York herald., 1866-06-17

Its Constitutionality Denied-It 10 De-
soribed BY Counsel ~ Unjsst and Ty-
rannicsi-Lsger Beer Nos Intexicating.
nounr ON co,rAxon IxAa xAur IL

eOr1bo0 ~ COumsel ~ Unjust ana Vy.
ranniesi-Lsger Beer Nos Intoxicating.
COURT OF COMMON rLxAs-rART II.
Before Judge Cardoso
PMs Fhlk vs TAs Obsmissiomsss ef ne Board y Er-
s-In this the plaintiff who Is owner Of pro-
misses known the Lion Brewery. as 10th street, In
this city seeks by Injunction 70 restrain the defendants
from preventing him from selling lager becr Sun.
dAya The defendants aege that under the provisions
OF the liquor act recently passed BY the State legislature
they have right 10 restrain the plaintiff from tho sale
Of the article In question Sundays Tho plaintiff AYERS
that tho defendants have tho right they lay claim
TO- which he denies he has license bearing date May
1885, before the law passed, and contends that
under ths license his right, hotel keeper. TO sell
Law enacted after tho granting Of the license can
not destroy his right .r
Mr. Henry [ Clinton and Mr. +; > stsllsnoeht sp.
Tracey anu Mr.. +. c. Blss for the defendants
ARGUMENT or COUNSEL.
Mr. Henry L. Clinton sad the question Involved ID
this case wss Of great interest," not only as regards tne
plaintiff representative He kept the largest
establishment or the kind IN the csy perhaps on the
continent The question involved OF importance
to tho German portion Of the population Perhaps two
thousand persons Of that nationality hooking 70 the
tended 70 subm, to he court was whether The law was
constitutional or not The license obtained by the plain
iss He that By Ss license The psnt
Obtained vested right, and in support Of this right
quoted ra as sa.s Of SS s4
procuring license plaintiff had obtained
vested risht lie held tina! the statute should not
put that construction upon it. The law had no reference
to cases heretofore granted He con,ended that the
Of nsw rs y aw IN the ssS' anS 81 a
statute recently passed not to destroy right pro-
vousy existing That principle was applicable 70 the
circumstances OF this case aud unless this statute stated
that revoked ali licenses previously granted court
had right give retroactive post fdco effect
He call d attention section three Of the sci and oh.
served that on the face that applied TO future
and mol TO those heretofore granted Unless words were
the as hs should apply to past licenses .na ms cours
before court in Mississippi in which the judges held
that they could not take away privilege from party
Tie Supreme Court OF Missouri held that they could not
revoke vested right obtained by license, which had
been paid for The plaintiff oy ,, MS license 1 aa gp
away from him. 1t had been held on The OF or sde
that where fee OF dollar had b'en paid the license
might be revoked but tho very opposite had been
decided by the Court OF Appeals OF the State Of New
York. He quoted the case of McCook, which had ref
eronce to new license law. The defence In that case
that under the old license the plaintiff had right
to sell and in the language Of the Court of Ohio # the
old law were repealed the license could be revoked
If there nothing doHe to forfeiture Of tho
license, common honesty would require that the mon
paid FOR II should be returned. He submitted
after reviewing the cases quoted On the other
SIDE, that he had shown that the act did
not revoke licenses granted before IT was passed. and
future He denied that there any conflict Of
hority in the cases quoted They all pointed one way
He alleg that the act Of 1857 was not repealed and If 1t
was he would like the learned counsel the other side
20 point out 10 him where he found that repeal stated
,hey did not do So Ho would show that the OF 1860
did prevent MIR. Falk from selling food ard lagcr
beer TO travellers on srndays no meant 70 submit 70
S was : hotel Essps!; he had ali The, .hs rights :, q
license carried that business et the Lion Brew
cry Counsel called upon the other side 10
selling food and drink absolutely prohibited by law
persons Sundays Il merchant got an ordor for
nvo gallons of ebccr would he think of supplying
'iaser beer f Certainly The human stomach
not capable OF containing sufficient quantity Of lager
beer produce nioxcalon; tho plaintiff swore to that
side Counsel argued that penal statutes shoalf be
ne psa s 'ss and a. u as
between Jamaica rum and Cognac brandy. The judges
OF the General Torn hold that lager beer did not como
within tho words Of tho act that used 'winc, spirits
ether strong or Intoxicating drinks He held therefore,
that 1t violation OF this Law Tor tue plain.
Commissioners 0f Excise ard tho Board oi Health
wanted 10 put into the act tho words "ager bepr which
The framcrs or Tho set did not put intc H. There
nothing whatever in the act 10 prevent hc keeper who
had license, selling lager beer on Sundays But was
said that those who drank this lager beer on sundays
pleasure seekcrs bis learned friend travelled to
Europe Asia would no not, on that account, he o
pleasure II person went :" tho Fifth Avenue
Hotel, the e. NicLoas. On Sunday, where The law
prcven; tho proprietor Of other establishment giving
him his breakfast tea coico or other rcieshncn he
requ redy The words ing beer were not In the act,
aud tho dcfcndan,s had right to puI IL
there. The act In question was in violation OF the state
con stltution II was local act About that there was
no dispute. Beyond al question local. s title
local. and embraced more than one subject II rea
ted TO the regulation OF hr sale of uurr ard created
crlmes unknown 10 tie ag. Section sixteen provided
for tho punt hmeni of crime. u created great many
crimes, and this distinct from the subject OF regua
ting the sale o drink The act ot 1867 had reference
punishment, but Il general act, and had general
application to Ill parts or the state There refc
renee IN The aci 70 the appropriation OF money. He
sho wcd that there dilcIruoe between ibe title aud
body Of the act lie had hown that the act
stliuonal thai II local. that contained three sub
ect that the principal subject referred 70 IN was not
mentioned its tlle Tho statute In question he held
II violation or Tho constitution, which decreed that every
peon should ~ protected N hti HE, liberty and pro
perry. Many of the acts which had got upon their
statute book would not be pormitted 10 ind place on
the Statute book Of England though the Britisb Pavia
mcnt omnpoent and much was said OF the British
,itu, rho act nf ls6d called upon the person
who bad tenso to cvery from hts estsb
lshment who created disturbance bottle fall nc
town or pail upset would DO disturbance and 90
hceman was authorized 10 arrest without warrant the
person who the pace and have it shut up until
quiet restored The poiiccman was thus oi hts own
mere within, 70 be the Judge OF wha, constituted ds.
turbance If the act used the words breach of the peace
that conld he understood but tho policeman In this
matter rend rcd absolute and despoc as the Emperor
OF Russia II the trainers Of the act bad endeavored 10
put INTO and absurdities they could not
have put sto IL more than to 10 found In every
SECTION OF t. The state constitution declared that no
czn should be deprived Of his liberty except by Que
process of law, but was II due process OF law 10 en-
able policeman TO arrest and inpfson persons until
next day without warrant because they might have
spoken loudly for his delicate earsf On q recent
casion honest German his child, under eighteen
years OF age pitcher OF lager beer The child after
leaving store aud going the tassed
The beer The who sold The beer was immediately
arrested by policeman and sent 70 prison The
&C, did not make out anything by clear denni.
ton, bur loft everything In the discretion Of police
man. n Commodore NaDderbilt entertained his friends
at Staten Island = second glass of vino, policeman
under this aot would lie Justified IA going In tho
company and arresng every Of thcrn because they
pUufl 10 ar iessu ni of liuuu
He did say that policeman would act thus,
but The net would justify him in dong II was most
arbitrary and tyrannicai act He did not believe that
one-hali tho Legislature knew what In the act II
must have passed at the end OF the session. whom bills
generally hurried TIL rpugh The act provided that
there should BE- restrictions placed hotel keepers
In furnishing travellers with entertainment Sundays,
excep. those mentioned In III but those restrictions actu
ally compelled the plaintiff 70 close his hotel sunday
aud he should. therefore, like TO know Mr. Falk
was 70 keep ladders 70 let his customers into