The daily gazette., 1883-11-22
ABOUT JURISDICTION.
AN INTERESTING DECISION
BY JUDGE CUMMINs.
LIQUOR GASES IN THE CITY COURT
The Question OF Jurisdiction Decided, and
an Indictment for Selling Liquor on Sun
day Quashed.

this morning, on motion of /. @. Grubb,
Esq., to quash the Indictment against John
Dunn, charged with selling liquor on
Sunday:
State Of Delaware, VS.. John Dunn. NUM-
cipal Court for the City of Wilmington,
No. 8, October T. 1888. Information, sell
ing Intoxicating liquor on Sunday.
In the above stated case an information
was filed by the Attorney General against
John Dunn for selling, within the city of
Wilmington, intoxicating liquors on the
Lords day, commonly called Sunday,
against the form of the Act ofthe General
Assembly in such cases made and provided.
The information recltes that the said John
Dunn had proper license for selling in
toxicating liquors according to law.
The defendant, having by bis counsel
moved that the information be quashed for
want Of Jurisdiction in this court to try the
ofense alleged in the information, the mo-
tion was argued by /. G. Grubb, ESQ, for
defendant and by FL. G. Turner, ESQ, De-
putty Attorney General for the State.
The motion TO quash is now the usual pro-
cedure taken In the courts to raise the
question of Jurisdiction where the want of
jurisdiction appears upon the record, or 10
the Indictment, or information.
The Municipal Court for the city of VIII
mington was established by act Of the
Legislature of Delaware, passed at Dover,
April Ia, 1883, and is to be found in chapter
2O7 OF volume II of the Laws of Delaware,
which is entitled "an Act to revise and con-
solidate the statutes relating to the city of
Wilmington"
Section Is of that Act confers upon said
Municipal Court sole and exclusive jurisdic-
tion to inquire of, hear, try, and finally de-
termine all those criminal matters and
offences enumerated in the 15th section of
tbe sixth article of the amended constitu-
tion, and committed within said city, and TO
punish all persous convicted of said offences,
or any OF them, agreeably to the laws of
this State.
Section Is of Article of the constitution
of Delaware, provides that the General AS
sembly may by law give to any inferior
courts by them to be established jurisdic-
tion of the criminal matters in said section
enumerated, of which are assaults and bat
tories keeping without license a public
house of entertainment, tavern, inn, ale
house, ordinary or vietualling house, retail
ing or selling without license, wine, rum,
brandy, gin, whiskey, or splrituous or mixed
liquors contrary to law.
This information recites that the defend
ant had q proper license for selling intoxi-
eating liquors according to law, but alleges
th t,o NC oO ~ ,,.n ct OF the General Assembly
In such case made and provided. He could
not, therefore, have sold without license
contrary to law, though he may have vio-
lated other pI DIVISIONS of the law. The in
formation itself shows no violation of the
specific oftense named in the 18th Section of
Article q of the Constitution, as cited. 1t
will not do TO say that sale on Sunday is
without license, because such sale is con-
trary to the law giving the license. 1t IL a
sale contrary to law, but 1t is still under a
license because made by licensed dealer.
In fact the penalty for such sale is against
those holding licenses; II unlicensed, the
one general ohense is selling without
license, no matter how, when, or to whom.
Clearly the otiense charged in this informa-
tion is not one enumerated In Section Is of
Article of the Constitution, and therefore
uot one over which this Court has jurisdic-
ton,
The Legislature had undoubtedly the right
to create this Municipal Court and to give
1t Jurisdiction of the offenses named in the
18th Section of Article of the Constitution
committed within the city of Wilmington.
The jurisdiction is confined strictly to the
offenses there enumerated Gray as. The
Mayor and Council Of Wilmington, 2 Har-
ringtoR 76.
Has the Legislature by its act of April 10,
1888, given to this Court jurisdiction over
the offenses charged in the information filed
in this cause? II SO, it is by virtue of pro-
vision of the Constitution already cited and
OF some general or special statute upon that
subject. The jurisdiction given by the
Con stitution is over the offense of retailing
or selling (including that of wholesale)
without license wine, rum, brandy, gin,
whiskey or Spirutous or mixed liquors
contrary to law. The offense is that of
selling or retailing without license, contrary
to law. 1t is not broadly, selling contrary
to law, but without license, contrary to
law. The Legislature might legalize the
sale of intoxicating liquors without the
prereq uisite of q license, In which event the
sale without license would not be contrary
to law, consequently no offense under this
section; but as by act OF the Legislature it
is contrary to law to sell without license,
that is the specific offense provided for.
This view is confirmed by consideration
of the laws for an alleged violation of which
this information was filed. This Court, pro-
ceeding by information, without Indictment
by grand jury or trial by petit jury, as
guaranteed by the State Constitution, (Sec-
tions and of Article - except SO far as
exempted by Section OF Article 6, its jur-
isdiction is limited to those cases given to 1t
es pressly or by necessary implication.
Where doubt exists as to the Jurisdiction of
this Court over that of higher Court and
OuO OASASieihB JutlsNiSuOut ~
should be decided in favor of the latter,
especially if thereby the right of jury trial is
preserved to the citizen. Cooley Const. Lin.
n.
What is the law of the State as to the sale
of Intoxicating liquors therein, agreeably to
which, as provided by the act of Its creation,
II it has Jurisdiction thereof at all, this Court
is to inquire of, here, try and finally deter
mine the offenses committed hereunder, ,and
to punish the persons convicted OF such
offenses The acts of Assembly now In force
regulating the sale OF intoxicating liquor in
this State are to be found In Chapters AIS
Vol. IA, 3s1 Vol. Is, 40 and 3S4 Vol. 16, and
Chapter 81 Vol. II. An examination of
them shows the evident intent of the Legis-
lature expressed and implied that the Court
of General Sessions of the Peace ard Jail De-
livery should have Jurisdiction over offenses
committed under those acts; provision is
there made for Indictment by grand Jury
and trial by petit jury. 1t is the duty Of
the judges of the said court to charge the
grand jury as to the provisions of these
acts, of the grand jury to make present
ment for violations thereof, of the Attorney
General to prosecute offenders hereunder,
and the Judgment of the court, which i'm
poses q sentence of fine and costs upon
such offender, is made q lien upon real es-
tate, which the Sheriff of the county is to
collect, the Clerk of the Peace, who is the
clerk Of the said court, and not of the Mu-
nicipal Court, being required to certify such