, 1881-02-13
THE COURTS.
Judge Gary Hears the Temper
ance Madamus Case,
And Reserves His Decision Pending
the Furnishing Of Authorities.
Suit to RecoFer Damages for Supplying
Liquor to Drunken Husband.


THE TEMPERANCE NANDAA1Us.
The mandamus case Of Helm against Justice
David Walsh to compel him to issue warrant
for tue arrest Of Il saloonkeeper named Herman
Fink for selling liquor On Sunday came up bc
fore Judge Gary Saturday on demurrer to tho
petition. The ground Of the Justices refusal
to issue the warraur was because the person
1sS,,tng tho complaint did not appear before
tAt merely caused IN affidavit to be filed.
~. r. ]. Walsh. son Of the Justice, appeared
for his father, the respondent, and after making
several technical objections to the form Of the
petition charged that the word ''may" issue tho
warrant IN the statute on the subject did not
mean "must." but was petmissive only instead
OF being mandatory. AS WIS usually tho case
Another and different provision Of the statute
authorized different method to be pursu
requiring the prosecuting witness to appear be-
fore Il Justice Of the Peace III person. where the
Justice should take down what the witness sa,d,
Nou- il he believed from the statements TINT tue
otcnse charged lad been committed. he should
issue the warrant The scction under consider
davlt being made. The law provided TWO tneth-
ods to pe pursued, and consequently the %ord
t. may" il, the section under which the ACTON
w:s brought did nut mean I" must AEain. tue
6taIute cnActcd that Il Warrlnt should ISSUE IN
the affidavit OF competent person. In such
case the Justice was responsible in case the per.
person. All his authority WAS derived from tho
statute. ana unless the prosecuting party brought
fully issuing the writ would be liable Tor an
acuun Of 1respnss for false Imprisonment. The
statue in question was not new one, but had
gruwn up pritr III the present Constitution: and
contained substantially the same provisions,
except the word - atlduvit" was substituted ia
place u the wCrd !" Ox1n, 50 as to conform to the
Constitution. Asain, the complaint only stated
thu tp:ui.'n Of tic CO np,n.ng witness. Lyon,
th.li The law had been violated, charging simply
in 1i.e words OF the Statute that Fink kept open
Il >irpIlng house on Sunday. ly the decisions
Of the Supreme Court cous rung The law, it
wns necessary sucu Il house should be kept open
tr 1irpliug purposes. The affidavit failed to
show that fact Lastly. even if the Justice
Compiled with the InanGAn1as be. would still be
iiatle. and therefore the writ ought not to ]
issue unless the right was entirely clear.
Iir. litlin claimed the word "may" meant j!
"E1ust.'' us had been repeatedly decided in n1l-
mc.zus si1Iliiar cases Tnat I'LL tho requirements
.; the statute t,ld been followed, and nothing !
mere c,'u!d be asked. Tho Justice was protect |
ed II be acted within the law.
The Judge seemed to think the demurrer was
we'll 1akeu u.ld that the Justice was tusiishcd in
his refusal 70 issue the warrant On Mr.. Helms
Request however, he gave the latter another
week tn produce authorities In support Ct his |
position tlla: the Justice ought to issue the war;
rau1 without seeing the party who made the I
complaint ]