The New York herald., 1874-09-29
BROOKLYN COURTS.
CITY COURT-sPEOIAL TERM.

Interesting 10 Lager Beer Dealers-fm-
portant Decision Touching the hfSnt
OF Excise Com ssioners TO Revoke the
Licenses OF Those Who Violate the sum
day Clauae-The Commissioners sus-
tanned.
BY Judge McCue.
August " Jacobs vs. James Jourdan ct al. and
| James Campbeu.-The plaintiff is the proprietor
| OF the Tiyon Garden, place OF public resort IN
this city The defendants the Board or Police
| and Excise Commissioners and the Captain OF the
Tenth precinct. On the 3oth OF July, 1874. plain
til was licensed to sell ale, wine and Deer at his
garden In quantities less than five gallons, to be
| drunk on the premises. The license ran Tor one
year from its date. on the 10th OF August plain
TIT was summoned before the Excise Commission
to show cause why the license granted
should not be revoked, the charge be-
ing that the plaintiff chad his place
OF business open on Sunday, August 16 and sold
lager beer at said place" On the trial the testl
mony OF the poucemen who visited the establish
ment in citizens dress was the effect that they
entered his premises by side door near the rear
OF the garden and passed directly into the bar
room. The policemen were followed by two
strangers TO them, who called on PLAINTIFFS Wife,
VINO was present, for lager beer. She drew some
thing That had the appearance OF lager beer rom
keg behind the bar ana handed IT TO them. The
men drank IL ana paid money for It,
The plaintiffs license was thereupon revoked by
The Commissioners.
This action is brought 10 restrain the Commits
siOners and Captain Campbell, who is under orders
to arrest tie plaintiff and close his place OF busi-
ness in case he attempts to sell under
question IS made to the authority OF the
Court to restrain by Injunction the acts
some notifications bnt except where they are in
conflict with such notifications. re-enacts in ex-
press press terms the provisions OF the act OF 1851
the law stood at the time pla1ut II received his
license his right to sell wines ales and beer was
restricted IN three respects
FOSt--No sale could be made by him Sunday
or on the day Of general or special election
within the prescribed distance from the place Of
election.
Second-No sale could be made by him on any
day between the hours OF one and five O'Clock in
the morning.
Thtrd-His place Of business was required to be
Kept closed every DAY between the hours OF one
and FIVE O'Clock in the morning, and all other
times when such selling was not authorized by
law.
the class OF intoxicating liquors. and does not
therefore come within the act OF 1857. prohibiting
the sale a M on tS sunday: me weight OF authority
denotes beverage which Is intoxicating and
within the meaning of the words ''strong and
SplrituouS liquors." as used in the Revised
Statutes y II the plaintiff and his place had
not been licensed as Aforesaid, and il the PLAIN
tffs theory be true, that lager beer is in no sense
intoxicating, there would not under the present
law seem 10 be any legal objection either TO the
keeping OF the place open or to the sale OF lager
Pirst-lt is claimed, however tina. the license
granted to the plalntn was franchise irrevocabe,
except by due process OF law.
SecOflG-That the Commissioners had no jurls-
dtctlOn to revoke IT; that this could only be done
before legally established tribunal and accord
Ing to the established rules and forms OF law.
TblyI-Tbat the attempt to confer upon the
Commissioners judicial powers for this purpose Is
unconstitutional and void and lastly, that the act
under which tney proceed has been repealed by
tie amended charter OF the city OF Brooklyn,
passed June 23 1873
A license to sell liquor is not contract between
the State and the person licensed, ana 1t Is not
property in any legal or cons sLltutonal sense. The
revocation OF a license Is no encroachment upon
any right secured to the citizen by the constItu-
ton. metropolitan Board OF EXcse-Barrie.)
The acts of the Commissioners in revoklng the
license are in no sense judicial, bu: purely admin
istrative. The Board Is part OF the
machinery placed IN operation Dy the state
to control and regulate the traffic In intox-
icatIng liquors. The plaintiff had no right
to sell wine, ale or beer except by the PERMISSION
upon certain conditions, and was accepted by him
those conditions. We think the acts OF the
Commissioners are protected both by the letter
and spirit OF the law. Whether this is wise and
temperate legislation is not Tor US to determine.
II Is duty to interpret and administer the law
as we nnd 1t upon the statute book. There are
notifications OF the Excise law In the amended
charter, but nothing that could be construed into
a revocation OF The powers gwen to the Commits
soners For the rs3sons f anoye stated the applLl; u
SeHied and the temporary injunction heretofore
granted IS vacated With $40 costs to abide the
event