Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-05-31

INTERESTING ARGUMENTs-THE CASE COMES Up
ON EXCEPTIONS FROM THE POLICE COURT
CLAIMS THAT THE ACT rs NOT oPERATIvk-THK
NAu CASE REFERRED TO.
In the Court Of Appeals today, Chief Justice
Alvey and Justices Morris and Shepard, there
WIS quite large attendance, many anticipating
the announcement of the decision in the case Of
Bush, the liquor case argued last week. How
ever, the case OF the District agt. Jas. Dempsey,
charged with selling liquors to be drunk on the
premises without having obtained license,
was called up, Messrs. Leon Tobriner and Jo-
seph J. McNally for the defendant and Attor-
ney s. T. Thomas for the District.
oNE-MILE LIMIT.
This is one of the zone mile Of Soldiers
Home limit cases, and the case comes up on
exceptions taken in the Police Court to the
ruling that the information was properly
mile limit The defendants first point is
that the information should have been brought
In the name Of the United States, and argues
that the act is national in character and q
violation Of its provisions is against the dignity
and good government Of the United States and
comes within crimes against the United States.
The second ground is that the act is not
operative in the one-mile limit. After referring
to the acts Of August 23, 1871, and Of June 20,
1872. he quotes from the act of Congress Of
February %, 1881, establishing the one-miie
limit, and notes that the act of 1891 pro-
hibited the granting Of q license within
the limit, but imposed no penalty, and such was
the condition Of the law when, in the case of
Nsu, 1t was decided that the only penalty i'm
posed by the legislature was for person liable
for license tax who may fail to pay the same
before engaging in the business"
The defendant claims that the act prescribed
code OF liquor laws for the District and its
twenty-frst section substitutes it for all exist
ing laws in relation to the sale Of liquors in
| except such as are applicable to the sale
OF liquor in the mile limit. He submits
that the laws that were applicable to the sale OF
liquor within one mile Of Soldiers Home were
such parts Of the legislative acts to regulate the
issuing OF license for the sale Of intoxicating
liquors and the act Of February %, 1891, and
claimed that the prosecution should have been
brought under those acts
Mr.. McNalley argued the case at some length,
closing by referring to the fact that the PIesi-
dent In his message to Congress had referred
to the decision in the Nau case, preventing
prosecutions for the sale Of liquor within that
limit
Mr.. THOMAS ARGUES.
Mr.. Thomas in answering the first point said
the act Of SO in its fifteenth section expressly
declares that the prosecutions shall be by the
attorney Of the District or any Of his associ-
ates. Irrespective of this the whole machinery
OF the act indicates that the prosecu-
tions shall be in the name Of the Dis
trict. 1t was idle to insist that Congress
after creating the Commissioners an excise board
| and that prosecutions for violation Of the act
shall be on information in the Police Court,
signed by the attorney Of the District or one Of
his assistants. to claim that Congress intended
that such prosections should be in the name Of
the Unised States. Aside from this, the eigh-
| nothing in this act shall In any way
repeal, conflict, or interfere with
the public general laws Of the United States
| imposing taxes on the manufacture and sale Of
liquors for the purposes OF revenue" This
| language shows that the actwaa intended to be
local in its character, and avoids any possible
misconstruction that the United States should
prosecute for violations OF il The license act
Of 1873 co Stat, 173), requiring the keepers Of
dogs to pay tax, provides that prosecutions
shall be by information in the Police Court at
the instance Of the United States district sttor-
ney. 1t was held by the Supreme Court Of the
District Of Columbia that prosecution under
that statute was properly instituted in the name
OF the United States, and simply becauae the
| statute directed the information to be brought
by the attorney Of the United States.
THE SECOND ERROR.
In reference to the second assignment Of
| error, reliance seems to be placed on the fact
that in the act Of Congress Of February 2S,
1891. declaring that mo license for the sale of
liquor at any place within one mile
Of the Soldiers Home property in the
District Of Columbia shall be granted" /"
| there is no penalty for viola
ton of it. But the Soldiers Home law was ad-
dressed to rhe authorities charged with the duty
OF granting licenses 1t was not necessary that
| it should have penalty clause 1t was neces-
sary, however, to Dempsey's defense that he
should have the paper license of the excise
board; it was no defense to this prosecution
that the sale was made where licenses are not
granted under any circumstances.
The twenty-first section of the act Of March
8, 1888, does not present a cause Of repugnancy
in the two clauses. The object of the excep-
ton of the Soldiers Home law shows an in
tentiou on the part OF Congress to retain that
law, and this il evident from the language Of
| the twelfth section imposing a penalty upon
any person engaging in the sale Of intoxicating
liquors in any portion Of the District where
the sale thereof is prohibited.
This provision could have no operation at all
unless il related to the Soldiers Home limit
The repeating clause of the act Of March 8,
1898, expressly retains the Soldiers Home law;
but suppose the act of 1898 repealed the
Soldiers Home law, that would not avail Demp-
sey. He still would be in the predicament Of
having sold liquor without license. 1t was
absolutely necessary for him in his defense in
tho Police Court to have the paper license re-
quired by the act Of March 8. 1893 Since the
passage Of this act the possession Of the paper
license is necessary in all cases to justify the
sale Of intoxicating liquors In the District of
Columbia.
SOME PLAIN TALK.
What Mr. Eckels Says in Regard to Failing
National Ranks