The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-06-02
THE TEST EXCISE CASE.
One Already Selected and to he Pushed Tn
medinteIy to - Trial.

Now that the excitement attending the
fning OF Mark Langan and others has sub
sided the representatives of the liquor dealers
and the people have agreed upon n case to be
made test OF the extraordinary Excise law.
Mr.. Felix Donney owns barrooms ut 4i6
Eighth avenue, 2s2 Seventh avenue. and $40
Eighth avcnuo and when he applied for
licenses he paid t75 for each, for which he holds
the official receipts. The Grand Jury has in
dicted him for having sold liquor without a
license and the case is to be tried in the General
Sessions within the next ten days. Ex-JudRe
Ditenhoefcr who will Defend said Yesterday:
I've intend to offer the testimony Of memhers
OF the Legislature Of 1870 as to their intent
whom framing the statute OF that yoar. We know
in the law of 1851 and If they failed. it was be;
cause of their unfortunate choice OF language"
What particular case or point have you dis
Well. az THE SUN goes to over 100000 OF our
people, and the people are Interested in this
discussion I'll give you the point in advance.
This famous law of 1857 has been before the
y'urts many times and for many purposes. but
,he Lending excise ease under II IA the books IS
for tho first time Iudicially determined that sell
ing without "A license was misdemeanor pun
lshable 10y Imprisonment. and not money for
fciture only. Well. now let 5 see how that is. In
section IL the law says that the party convicted
OF selling without a license shall forfeit $50 for
each offence What could be- cearcr2 You see
II s not fine, but forfeiture. which is n civil
and not n criminal remedy
" Did the court decide otherwise and IL so,
whyf'
declares that any person convicted Of selling to
an Apprentices or Indian shalt be adludged
guilty OF misdcmeanor. and liable to a nne-not
q forfeiture this timc-of t25 for each offence.
Now this man Beehan was convicted and sem
fenced to criminal punis hmUnt He plead I'd
section IL ~ u bar To imprisonment. hut the
courts decided against him. and from that time
10 this that precedent has given the law 10 the
courts"
Excuse mo, Judge. but II that Ia the law and
n precise quotation. how did the Court get
Very curiously. Here is the opinion: In
| the Court OF Appeals at that time were some
learned mon. Judges johnson. Comstock. Sell
den. and p'nto. and with them sat Judges
Roosevelt. Harris. Pratt. aud Strong OF the SUI
preme Court. judge Pratt wrote the decision,
and when his attention WAS called to section 13
AMI It's plain, common sense phraseOlOgy, he
snid: In statute carefully drawn up and all
| its provisions carefully considered, should be
| Inclined To- give great force to the MAXIM Ef-
DfeSstO UHitS est ercIuSiO dterutS: but the stat
ute under consideration appears. upon it, face.
| To- have been very carecssly framed. and to
| have been adopted without n careful considera-
not be safe 10 give that maxim much force In
other words, he saw the intent Of the law clear
enough; but II was careless law, aud We must
suffer the consequences
| AT once. We arc ready. and the District
Attorney Is ready. Of course. Temperance.
| very properly. has great influence. but in the
| lace OF explicit phrasing even temperance must
kindly allow the law To have It's way.