The New York herald., 1879-03-07
COPERNICUS AND GAMBRINUs.
CITIZEN scHwAB SCORES VICTORY AeArss

CITIZEN sCHwAB SCORES VICTORY AGAINST
THE PoIIcE-No CONSTRUCTIVE oFFENcEs.
At quarter TO one O'Clock the morning of
Monday. the a2d of July. 1878. Justus H.. schwab
was found selling beer in his open saloon in First
street by Officer Mayforth. of the Seventeenth pre-
cinct. The officer ordered the place closed and the
sale OF beer to cease being violation Of law. to
which order Schwab responded by fiat refusal. In
justification of such refusal Schwab referred to the
clock which hung on the wall. showing. according to
Copernicus. that Sunday was at end. but, as was
alleged. tho officer gave Schwab TO understand that
he did not care big for Copernicus or the clock.
and thereupon arrested and took him to the station
house. where Sergeant Michael NJ. Rooney ordered
him 'below." On the Same day Schwab was taken
before Justice Bixby Essex Market who discharged
him. and he immediately thereafter brought q suit
in the Marine Court against both Sergeant and pri
vate to recover damages for false imprisonment
LEGISLATIVE INTENTION.
The came to trial before Judge Shea and q
jury, Mr.. Henry wehle appearing counsel for
Schwab and Mr.. G. F. Mclean for tho police. Judge
Shea dismissed the complaint, holding that. though
the Sunday law ended at midnight Of Sunday and the
License law did not operate until one o'clock A. NJ.
of Monday, yet it must have been the intention OF
the Legislature to include within the prohibition
this disputed hour to leave neutral ground
covered by no law.
From this decision counsel for Schwab took an ap
peal to the General Term. by which decision
rendered yesterday reversing that OF Judge Shea
The opinion Of the Court Is written by Judge Nc
Adam. CURED by Chief Justice Alker Judge
Goepp the leading points Of which are as follows-
THE pEcIsIoN.
Quoting large number OF authorities to sustain
his POSITION the Judge holds that by the method of
computing time in this State established by the Re
viscd Statutes . day consists of twentyfo,ir hours
and commences and ends ut midnight. Whenever.
therefore, the statute forbids act to be done
particular day IL has reference 70 this mode OF
putation unless there is express declaration to
the contrary By Supplying this rule Of construction
to the present plain that the statute which
forbids tho sale of hquors Sunday has reference
to the twentyour hours of that day, and the sale in
this case was violation OF that law. The only
other prohibition the Excise law which prohib-
its sale between the hours Of one and hvc O'Clock
In the morning. and provides that al places
licensed under the law shall be closed
during those hours There WIS legal
evidence that the Legislature intended the
Excise law should extend to the intervening hour
between midnight Sunday and ono o'clock A. NJ.
tho following Monday. and the rule being that
penal statutes must receive strict construction.
things which do not come within the words are not
to be brought within by construction. The law did
not allow of constructive offences or Of arbitrary
punishments. No man incurs penalty unless the
act which subjects him to 1t IL clearly within the
spirit and letter of the statute imposing such PEN
atty. The remedy for the defect in the laws pre-
ture and not with courts. On these and other
grounds set out at large in the opinion the judg,
nent OF the Court below is reversed for error and
trial awarded to Schwab During this lawless
hour, IL appears from this decision, King Gambrinus
can exercise unopposed sway.