Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-07-08
What Judge Miller Says of the Nc
Donough Decision.
IT FOLLOWED THE COURT OF APPEALS
In Its Action on the Busch Test
Case.
SOME LEGAL OPINIONS.

AHo oociSiou Iuursuay Oh SuoRo mIIoH IN tuo
case Of Patrick J. McDonoush, charged under
the new liquor law with keeping an unlicensed
bar in selling liquor in less quantities than Ave
gallons to be drunk on the premises. appears te
grant perfect immunity to those dealers holding
licenses under the old law. In discharging Nc
Donough Judge Miller stated that it appeared
to him that, under the decision Of the Court Of
Appeals in the Busch case, sustaining the old
licenses, there could be no prosecution Of those
dealers holding such licenses.
When questioned today by STAR reporter.
Judge Miller stated that he was still Of the
opinion rendered by him Thursday. But he
further stated that he was examining more
deeply into the law on the subject
with the hope that he could find some
authority for holding differently, and thereby
prevent the seemingly present right Of dealers
holding old licenses under the Busch decision,
to sell ut their pleasure. Until he had further
examined the law he stated that he did not care
to more fully express himself In the matter.
AN UNFoRrUNArE CONDITION OF AFrAIRs
When the matter was mentioned to District
Attorney Birney he said that the present con-
dition Of affairs was most unfortunate and
deplorable. While he was not Off
ciaily concerned in the question,
to be at the present time no adequate remedy
to apply in the cases of those dealers who were
taking advantage Of an unfortunate technicality
In the new liquor law. While he had not
closely Investigated the matter, it seemed to
him that the decision OF the Court Of Appeals
In the Busch case left Judge Miller no other
alternative than to do a. he had done in the
McDonough case.
EFFECT OF THE BUSCH DECISION.
NJ. Iox Dv,~l H., H.
ney for the District, said that under the Busch
decision the old licenses remained in force,
while the penalties under the old laws were re-
pealed. This permitted, he regretted to say,
dealers holding old licenses to do pretty much
as they pleased. Consequently those dealers in
many cases we're openly violating the new law,
boasting that they intended to go out OF busi-
ness at the close Of the present license year.
November next and that therefore, the threats
of the District Commissioners that dealers
30 violating could not hope for license
next year had no terror for them The Dis
trict, 1t appeared, was at the mercy Of such
dealers, and the only remedy seemed to be
prompt action on the part Of Congress At the
extra session next month.
THE OLD AND TIE NEW Law.
''The decision makes certain what has been
my opinion since the decision Of the Court Of
Appeals in the Busch case" said Lawyer John
A. Clarke, who has appeared as coun-
eel for more than one brewery in
was brought for keeping an unlicensed bar
under the new. McDonoush held q Wholesale
license under the old law. The old Law
did not restrict tho dealer as to the
drinking of the liquor on the prem
ises. That was only q regulation. The
the quantity sold is less than five gallons. to be
drunk on the premises. The old wholesale
license gave the holder thereof the right to sell
pint or more, considerably less than
FIVE gallons. This license, which holds
good under the opinion of the Court
sell in quantities covered bv the new law; that
is, less than five gallons to be drunk on the
premises. 80 this being the case, any one hold
ing wholesale license under the old law can
do the business of a retailer or bur room with
out beiing liable to a charge under the new law
Of keeping an unlicensed bar.
But" said Mr.. Clarke, ~ have advised my
clients that il they sell by the email because
of the decision and SO take advantage Of it
they may experience some trouble when they
apply for q license at the beginning Of the
next year, 1t will certainly be hsrbored
against them.
TAKING ADVANTAGE OF THE DECISION.
Many holders OF Wholesale licenses in the
northeastern section of the city are taking ad-
vantage Of the decision, SO it is reported by the
police, aud they have their doors open to the
public for the sale of liquor by the drink, as
many of them will close their places at the
close Of the present license year.
ENOUGH LAW TO COVER THE CASE.
The attorney for the District. Mr.. 8. T..
Thomas, said that it seemed to him, although
he had not examined the question
closely enough to finally determine the
| IL H.
Court of Appeals in the Busch case there was
enough law left to prevent a violation of the
law on the part Of those holding old licenses. He
based this belief on the ground that the old Ii
censes must necessarily depend on some law That
is. that the old licenses carried enough law with
them to enforce penalties for violation OF them.
Therefore, he thought that an information
w. by dealer holding an old old
license could be successfully proceeded against
In other words, he believed that the Court of
Appeals. in sustaining the old license, also sus-
tanned the old law and regulations applicable to
| them. Such construction OF the Busch decis-
| ion, 1t seemed to him, was both reasonable and
just. Yet he had not sufficiently satisfied him
in the matter, bnt that was his present opinion.
MR.. sHILLINaToNs VIEWS.
"The decision. in my opinion, only recog-
| nizes the rights Of u Wholesale dealer, licensed
under the old law, enjoyed before the present
law was passed. said Lawyer Shillington. ''Tbat
| is, he had the right to sell spirituous and fer
mented liquors in quantities Of one pint
and upward, and as there was no legal
| prohibition against allowing it to be drunk on
| the premises the courts were powerless to pre-
| vent 1t. do not understand that the decision
gives a wholesale dealer, who has a license un-
der the old law the right to conduct a retail
business. He can have no more privileges
than those conferred by his license,
which the Court Of Appeals decided
runs till November next, and the moment he
transcends its terms or sells in a manner IN
hlbited by the old law he becomes liable
uuder the new. For instance, the old law for
bids him from selling in less quantities than
one pint and if he does so now his license will
be no protection, because it never contem-
plated or permitted such sale. should say
in justice to my client, McDonough, that there
was no testimony that he sold in quantities
less than a pint, except that OF witness
| who swore he got glass OF
whisky from him, and this Mel Donough was pre-
pared to disprove. AS a rule the licensed
dealers are strictly observing the terms Of their
licenses and the regulations Of the Oommis-
| sioners, and have desire to take advantage
/ Of the anomalies said TO exist"
| Naval Promotions.
The following named officers have passed