The New York herald., 1874-03-14
UNLICENSED LIQUOR DEALERS.

Power to Recover Penalties for Selling
Liquors without Liccnse-zmportant
Decision by Judge Robinson.
The Board OF Commissioners OF Excise have
Drought q great number OF suits against liquor
dealers to penalties for selling liquors with
cut license. The defendants, through exJudge
CardcZo their counsel demurred to the complaint
and raised the point that the Board under the ex'
listing statutes have no authority to sue for penal
ties One OF the suits brought against l. W. Dubois
was selected as test case, and the demurrer was
argued before Judge Robinson, Of the Common
Pleas, by defendants counsel. The objection
taken has been sustained by the Court, as will be
seen by the following opinion gwen yesterday
OPINION OF JUDGE ROBINSON
This action i 5roaghs PROM q to & M imposed
Volume soss entitled AN act to suppress intemper
% anS &c df ssa ss y a f.
Us the April q 1873 chapter 2i9 and Of May n
+ (. y 5 IT, n5s:s $srss. sssssis!
and me toreitares 8 for oencss thereby prohiSed
by section i \, enacted THE penalties Iii IS i%p9sed
: san ana G IS shall sued for ths
pc 'S II
@ these By Sc sections ton and Dy
Sas IN
ss f To ten Ss after ter
9aaqn by Of ss prSo e
then any other person nigh. prsecuts the
s Of tine sssa of n ss o Ct
1873 chapter. So Laws Of lss 2 .Ssi, by seeiior
to to wafh ss Tss
@ s s s aSs for n by s action 10 and m
the provided by law tor the recovery OF penal
I p e the
recovered when collected together with all the costs
ST sa The days Sy e eaa be lp
TO the conny of the ooany for the
S such 81 ss s I a. G a
corresponding change made in section 80 Of the act of
Ss the an the I'm ss
G the a " Ss
OF 1857 Of those originally enacted which thereby were
si6ners Of Excise were deprived Of any authority to
a asn fs Hf ma to
board in corporate capacity. It is unnecessary
ultimate Sy opinion the
OF as eh e s e s
county or 9therwise as the a6sencs of any such
Even 3 e M s Of the o the
nd aeedet aee o wS h b
the penalties OF the act In this
cannot BY judicial iesslaon remedy the diiiculty or
hse' The cOmplaint ns IN two '
the rst to recover the penalty imposed by the ttir
IN 81 Ye
Ions and the second for that imposed by section IA
license Each statement Of cause Of action alleges
that by the twenty section OF the act of 1871 1t
provided that the penalties imposed should be sued
for and recovered by the plaintiffs but they wholly g
more OF chapter $40 the 1873 To
this complaint the defendant has demurred stating for
cause demurrer-frst, that plalntns have legal
capacity second that there is defect of parties
plaintiffs third that several causes OF action have been
improperly united and fourth that the complaint does
not facts sufficient to constitute cause OF action
In nv opinion the first and fourth of
demurrer must prevail. The act is q general and
public statute all the provisions Of which the
Court bound TO recognize and know without allegation
proof and the erroneous made OF its enact
neither adds affects the rights position
the plaintiffs beyond what is afforded by the express
terms and the admission OF such statement
implied conceded by the demurrer as to ordinary
alteration effected in the original act of 1851 by the
amendments OF 1873, chapter 3d. the plaintiffs
spect any matter of public concern, and upon the
case stated in their complaint disclose facts sufficient
to constitute cause0t action in their behalf or which
stared in the general language OF the Code and
without specification of some special objection to
covery constitute sufficient grounds Of objection 10
recovery. tSee Waits Practice, p. 45S and cases
citcd Demurrer sustained. and judgment thereon or
dered for defendant