The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-05-23
CITY COURT.

Important Decision Under the Excise Law
DruGeists Debarred FROM Selling Liquor "a
TippIcrs.
Judge Nelson, OF the City Court, Brooklyn, ren.
dered decision yesterday morning In the matter of
cerorari for the review Of the proceedings against
Edward II. Kennedy.
Mr. Kennedy. who has drug store in the city OF
RrookIS n. was convicted before Mr.. Justice Walsh
OF the statutory offence Of selling splruous liquors
Ia % ssors % MY
have given the matter, as to the law and the facts
the consideration due to o case involving the
public interests and the liberty OF the citizen.
The real question whether by virtue OF his bust.
ness and as necessary incident TO IT, independently
tho pharrnaceutisi, aud Of necessities arising from
sudden illness or accidents, druggist has the right
teenth section Of the statute, March, 1s57-now in
full fOrce-is as f0llows:-WhOsocye shall sell any
less than FIVE gallons at time without
having license therefor, granted as herein
provided shall ortei, dirty dollars for each offence
In terms this provision is broad enough to reach all
persons by whom such sales shall be made, irrespec-
tive OF their stated business or employment. Ii is
claimed, however, that brandy is a medicine, is
kept by druggists and regarded and used by physi-
clans. prescribed as medicine, and in dspensatory
and other works OF reference 1t is SO denominated.
But that was known to the trainers OF the law, and
II class or merchants were not to be sub
Jected to the restraints imposed the exception
been known that the use OF brandy as q medicine
was exceptional and did not bear any significant pro-
construed with reference 10 It's terms spirit and
tent II from some error or perversly OF legislation
with public policy or good morals, the judi
clal duty OF giving special or restricted In
tsrpretation 10 such enactments Il imperatiye
harmless or altogether disregarded. But when
no such objections exist, and when the general pur.
pose Of the Legislature IS obvious and clauses OF
statute in harmony with such purpose and with
other laws touching the same subject clearly ex
Without aualilcaton the declared object Of this
statute was Ito suppress ntemperance and regulate
the sale OF Intoxicating liquors" The trainers Of this
and oil that OF April IL. 1870 OF the opinion
that ntemperancc might be somewhat suppressed by
lessenng the number OF places where strong drinks
closed at certain hour IN the evening and during
the Sabbath day. They proposed TO regulate the
tia ana Intellectual II in large number Of stores In
all the principal streets OF Tie city such sales might
be made as II no prohbltory regulation existed, SIM
ply by reason OF the nature Of the other business
carried ON therein druggist may keep brandy,
and may use II as one OF the constituent
10y MIN. lie may upon proper professional
requsition dispense It to and for patients But THIS
is The extent OF his privilege. II may be as sug-
between the line OF duty imposed upon the person
obtaining this license and that proper to be pursued
by the drugglst-he former IL TO close his place OF
business during the night and the Sabbath, while
the latter NAV have real occasion to keep his
difficulty could not be overcome by SPECIAL
arrangements with the commissioners, II wouo
De more TeaSOudDle 10 SO COnstIuc the law as TO
render the druggist ineligible tnan to attempt
emendaton Of the statute not sanctioned by the
Legislature The fact that the druggist may then
keep his place open oil night and on the Sabbath
day furnishes q strong argument against his being
allowed to sell splritnous LIQUORS: It is but too
be. Where could he get his strong beverage
on the Sabbath The tact that In this
instance only two ounces OF brandy was
called for and sold is no protection. II was much
a violation OF the statute as If larger quantity but
less than five gallons, had been sold. Nor Is II ma
terla that the sale was not by the defendant per-
sonaily, but by his clerk or agent
This construction or the statute Is adopted upon
the principle and might easily be fortified by the
certlorar OF authorities 1t is necessary 10 give full
effect TO the legislative Intent and 10 check eva
SONS. 1t is due 10 citizens who have o
deep interest In having intemperance suppressed;
due even TO those who on application TO the Com
mIssioDers and the payment Of fees, have obtained
licenses IN the expectation that others competing in
the business would submit to the same burden.
The case was properly determined by Mr.. Justice
Walsh, and the defendant must be remanded.
The prisoner was again remanded to Jail, he hay-
Ing refused 10 pay his line.