The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-12-06


ordinance OF the city was not sufficient
to prevent the operation Of the statute in
this city, and that consequently his court
had jurisdiction OF these cases. and not the
Police Justice. Some time after The indict-
ment in this case was found. he Was in
formed that Judge Guigon had thus held,
and that Mr.. Wise, the present attorney for
the wealth, and Mr.. Cabell, the
former attorney, concurred with him but
Judge Christian. in an opinion pronounced
able by the Court OF Appeals, maintained
the jurisdiction Of his court.
Judge Moncurc, who delivered the opinion
OF the Court, after reciting the facts and
quoting the statutes on the subject, said:
The fact obviously is that the two laws
city and State-were enacted diuerSo in
tUitu. The former was aimed at the offence
Of keeping open Il bar-room. on Sunday,
while the latter was aimed at the offence OF
selling an Intoxicating. drink anywhere
" within the limits OF this Commonwealth
from II O'Clock on each and every Saturday
plight OF the week until sunrise OF the sue
ceedinS Monday morning.
They were obviously enacted without any
reference TO each other. or course,
THE ORDINANCE
was enacted without reference to the statute,
which was not then in existence. and the
statute defines very different offence from
that which was defined by the ordinance.
The attempt now made to make the two
offences substantially the same must there
fore fail. 1t is said that the City Council
by their amendment OF the ordinance, made
seventeen days after the enactment OF the
statute, intended thereby to supcrsede the
11t Rnt yhnto iIair ipfa Io,
have been, they certainly had no power to
superSede the statute, as to the city at least,
except in the very mode prescribed by the
statute. That mode evidently was to define
the same offence and prescribe the same
punishment substantially in the ordinance
as had been done in tie statute. The Coun-
Gil may have supposed that 1t was only
necessary to make the penalty the same
under each, aud that they did so by pre-
scriDing the same amount Of fine for the
offence OF violating the ordinance which
had been prescribed for violating the
statute.
But did that make even the penalty the
same? The statute not only prescribes 4
fine for the offence. but declares that the
offender shall, moreover, at the discretion OF
the Court,
FORFEIT HIS LICENSE.
II this forfeiture, at the discretion of the
Court, he considered as Il part OF the penalty
inflicted by the statute. then clearly the
penalty by the ordinance, even as amended,
is not equal to the penalty inflicted by the
statute. But it is not intended, because not
deemed necessary, TO decide that question in
this case.
Without deciding whether or not the pen
alties for violating the ordinance and the
are the same, it is enough TO say that
the offences under each are not substantially
the same, and this we think we have already
shown.
But, in addition to what we have said on
that subject, we have further to say that the
statute embraces period which is not en-
bruced in the ordlnancc-that is, from 70
O'Clock every Sunday night until sunrise OF
the succeeding Monday morning. No sale
of Intoxicating drink, nor keeping open a
bar during that period, would be violation
OF the ordinance, whereas i sale or such
drink during that period ut any other place
than one governed by such ordinance would
be a violation Of the statute. This would
create a palpable difference and inequality
in the law governing different localities Of
the same State, and could never have been
contcm plated or. intended by the Legisla-
ture. There is -.. ...-'- ...... ~ ,'
.... STILL ANOTHER REASON ..'.''
for saving that neither the offences nor the
penalties defined and prescribed by the or
dinance and the statute are substantially
the same-and that is, thata person may be
indicted and punished under the statute for
every act OF selling Intoxicating drinks on
the same day as for 4. different offence.
whereas he can be convicted and punished
under the ordinance OF only one offence
for not closing the bar where such drinks
arc sold or given away son Sunday during
the whole day.
We have fully considered the able argu-
ments Of counsel in this case, and also the
able oDinion Of the Judge Of the court be-
low. who presided at its trial, but deem it
unnecessary to notice them more in detail
than we have already in effect done.
We are. therefore, OF opinion that there
is no error in the judgment Of the court
below, and that it ought to be affirmed.
All the Judges concurred in the result,
hut Judges Christian and RIrks dissented
from .portions of the opinion as given.
1t is understood that the Liquor-Dca!ers'
Association will now apply to the City
Council to adopt an ordinance IN The exact
language Of tue State statute.
This case was argued before the Supreme
Court by the Attorney for the
Commonwealth, and by Colonel John b.
Young for petitioner. .Ga.. ..-'t.
TROGDES VS.. THE COMMONWEALTH.
This is the case OF the North Carolina
merchant who was convicted in the Hust-
ings Court OF this city for obtaining goods
By false pretences from Millhiser Il Co., OF
this city. The case was taken to the Court
of Appeals on nine bills OF exceptions.
pearly all of them involving questions Of
novelty and great difficulty. The Hastings
Court was, affirmed on every point except
one. and that was usl TO the admissibility OF
the certificate OF the assessor as to the, value
Of the property OF j. w. Alfred, who was
partner Of Trosden.
OTHER OPINIONS RENDERED BY THE COURT.
McDearman's executor .Us. Robertson,
&c. From the Circuit Court Of Appomss-
tox county. Affirmed, Judge Christian de-
liyering the opinion Of the Court.
Kings executor aud ais. Us. Malone ana
mis-. From the Circuit Court OF Dinwiddie
county. Reversed, Judge Burks delivering
the opinion OF the Court; Judge Anderson
dissenting. -,
warwick by, &C., Us. Warwick and ats
From the Circuit Court OF Nelson county
Partly reversed, Judge Moncure delivering
the opinion Of The Court. -,