The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-11
RUMSELLERS, BEWARE!


LEGAL BoMBsHELL AMONG THE LIQUOR
DEALERs-LICESsEs OF NO vALuE-NEw
SADIE PROMISED.
A case OF general interest determined yester-
day In the Court OF General Sessions Judge suther-
land presiding. Tho recent decision rendered by the
Court OF Appeals power OF the Board OF Ex-
cise Commissioners to issue certain licenses has
rally raised commotion, and will doubtless result.
in the adoption of some measure by the Legis-
lature that will meet tho pending difficulty. II
would appear that some years ago Mr. w. II. Mundy,
lawyer, insisted that the Board Of Excise had not the
power to grant licenses TO saloon keepers to sell ntox
cang liquors other than ale and beer to be drunk
tho premises. Legal points prepared on the sub
jec and, Tor the purpose Of testing tho matter. ap
pcaton was made to Judge Wandell AZ tho Tombs for
the arrest Of the Commissioners OF Excise. No mmc-
date action was takon, and later Mr.. Mundy made
similar application before Judge Morgan, the
complaint being finally dismissed. With consider
able persistcncy Mr. Mundy then appeared be-
fore Judge Wheeler at Fordham aud lodged
complaint against James Gibney for selling liquor
drunk on his premises by way OF testing the question
NJ issue. Gibney was held under bail TO await trial.
The legal points taken were finally sustained by the
Court OF Appeals Ii was argued that as far back as
the government OF tho New Netherlands in the
tcenth century an excise law was passed combining the
sale OF liquors 10 DO drunk the premises to inn
keepers, and giving the privilege to sell small measure
to be carried away TO storekeepcrs 1t was further
claimed that this distinction had been maintained with
the exception OF two short intervals up TO tho
year 1885, The law under which the defendant Gibnoy
indicted was passed in 1851 Tho old policy Of The
law revived by this act which continued full
he n
the Legislature enacted what known tho 'Bccr
law which gave boards Of the power license
any person to soil beer to be drunk the premises
In the year 1856 the Metropolitan Excise law
passed allowing licenses to DO granted 10 any persons
OF good moral character but did not refer 10 drinking
on tho premises IL would seem that this law APP
piled to the Metropolitan Police district except
Weschester county, the law OF 1857 being
1870 new law was passed. which was almost identical
with the Metropolitan Excise law, and embodied
great extent the law oil 1857. except such parts
were Inconsistent" with tho law OF 1870 Here the
difficulty commenced and the question soon suggested
itself as TO what portions OF the law OF 1857 were IN
consistent with tho law of le70. IL claimed by
Mr. Mundy that the law OF 1857 created two kinds OF
ccnses-one an inhkceper's license, TO sell liquor to
be drunk on the promises; the other storekeep-
ers license to SELL but not TO be drunk tho prem
ises II was further claimed that the law OF 1870
permitting licenses to 'apy persons of good moral
character" being silent on the subject of drinking
the prem 1885, did not grant tho privilege. Ii also
urred that the law oil 1857 forbade IT, and that that law
rc-enacted and made part OF the law OF 1870 Tho
construction OF this law as thus presented has been
upheld by the Couri Of Appeals, and Mr.. Mundy has
therefore carried his point The case taken to the
General sessions was test one, and as already sug-
gestcd, will doubtless call for prompt action at Albany
GiBNEY's GUILE
When the OF GlDncy called n plea OF guilty
entered, and Assls tant District Attorney Rollins
who appeared behalf OF tho prosecution, said that
when he called tho attention OF the Court to the
the day preceding he supposed the defendant would
proceed to trial but no was now informed that by ad
vice OF nscl he would plead guilty to the offence
charged. The defendant had u license from the Com
missioners OF Excise in accordance with tho form
which mad been used by them for several
years past. whereby he permitted to
sell liquor to be drunk on tho promises.
In view of the fact that the defendant pleaded
guilty 1t unnecessary 10 direct attention TO tho
provisions OF tho statute which had recently
received It's interpretation BY the Court Of Appeals
The provision set forth that whoever shall sell
Intoxicating liquors to 10 drunk the premises and
has not obtained IIccnce therefor as tavern
fence. The defendant in this case frankly acknowl-
edged that he did sell liquor on his premises be-
evng he under protection OF the liccDce which no
had obtained from the Commissioners Of Excise. or
course he (Mr RoIlins) might fairly assume that under
the circumstances, the Court would not inlet severe
penalty.
Judge Sutherland, IN passing sentence said that
the defendant had no license TO keep tavern or an
inn lilo had liccnse granted BY the Excise Commits
The theory that they had right 10 grant It
The defendant doubtless supposed that the license
gran led authorized him 10 sell liquor 10 be drunk
the premises. There could not be, therefore, any
criminal intent on his part Nevertheless as tho
appear that the EXCISE Commissioners had no power 10
grant the license by which the law was violated The
result wag that tho defendant would have been
vlcled II ho had gone TO trial, the superstition being
based the TACT that he would have admitted that no
had sold liquor which drunk on the premises Ac-
cordng to the law, however It would be inferred that
there criminal intent from tho inter probation put
upon u by tho Court OF Appeals. In this Instance
there nothing left for the Court TO do but impose
q nominal hno. AS matters nov stood he would advise
the deie dant to stop selling liquors. there beng
other suggestion offer the decision,
for II he brought up second time knowing tho
law, the presumption was that no would BIO punished.
Under tho circumstances tho Court would impose the
fine OF u.
STOP SELLING LIQUOR
This was very important question, and the Court
did not desire to control the action OF the defendant IN
the matter. In view OF the decision OF the Court OF
Appeals It clear that hose who had not the proper
licenses must stop selling liquor; and indeed, added
Judge Sutherland, It would not DO terrible calamity
II they did
The defendant then paid the fine of 81 and was DIS
charged.
WHAT THE DISTRICT ATTORNEY SAYS
District Attorney Phelps stated yesterday that after
tho decision OF tho Court Of Appeals. and upon COM
plant beng made. he sent the oi Gbncy before
the Grand Jury, that the matter might be disposed
OF IN court As hc;mater now stood, the law, as in
tcrpretcd by the Court OF Appeals, with which he
fuzzy agreed, that the several thousand liquor
dealers In the city VINO had no hotel or tavern
license could be proceeded against for violation OF
the law. Mr. Phelps further intlmated that II was his
province to act upon complaints presented to him,
and that In every instance would be his duty to act
wsh Inc SANE Tn snen ne
that the matter would finally be remedied by proper
legislation.
about TO take advantage OF the decision OF the Court
OF Appeals, and will organize temperance crusade
under the leadership OF Oliver Cottcr.
COMMON COUNCIL.
The Common Council has passed a resolution pro-
testing against the proposed Albany Legislation giving
to the Police Board authority over the granting OF
liquor licenses. This action was taken on petition
from liquor dealers OF tho Fourth senatorial district