The record-union., 1895-11-30
M'CUE'S VAIN APPEAL TO THE LAW.
Warden AuII's Demurrer to His Com
plant Sustained.
Judge Catlin Says Aull Had a Right to
Order Guards Not to Visit
the Saloon.

The demurrer of Charles Aull, War
den of the Folsom Prison, to the COM
plant of Ed McCue, the Folsom soloon-
keeper, was argued in Judge Catlin's
court yesterday The complaint al
leges that Aull and Captain Murphy OF
the prison guard had conspired to IN
jure him in his business by ordering
the employees of the prison not TO
patronize the McCue sample-rooms,
and asked for $4,000 damages and an
order restraining Aull and Murphy
from further interfering in his one
Cues business.
r. T. Devlin, counsel for Aull, con-
tended that there was no element OF
boycott or conspiracy in the order pro-
hibiting employees of the prison
from patronizing McCune's saloon
There could be no conspiracy
he held, because Murphy is an
appointee of and under the au-
thority of Aull, and that an employer
and employe cannot conspire together
in such a matter as the one directs
and the other obeys the orders OF his
superior.
All the employees of the prison, sad
Mr.. Devlin. are directly under the au-
thority of the Warden, and 1t is not
only his right but his duty to exercise
that authority to the extent that they
shall not frequent saloons or indulge IN
the use of LIQUOR He further called
the attention of the court to the fact
that the saloon of the plaintiff is locate
within two miles of the State PrlSon
which of itself placed McCue outside
the pale of the law, as the ConSutu-
ton declares it illegal for any person
to sell or give away Vlnous or mat
liquors within that limit.
Hiram w. Johnson appeared as coun-
sci for McCue and vigorously opposed
the argument of Mr. Devlin. He held
that the act of Aull and Murphy was
a conSpiracy-that it was in every
sense boycott such as the courts had
declared to be illegal. That the liquor
business is under the ban of the law,
as Mr.. Devlin had contended, counsel
stoutly denied, for it was lawful for
municipal and county authorities to Is
sue licenses for the carrying on OF such
business.
Mr.. Johnson cited authorities in sup
port of his position, and cOntended that
the action of Warden AuI was wrong,
wicked and maliciOus-that it was for
the purpose of injuring an individual
and therefore he could not shield him
self behind a law that imposes on him
certain duties such as maintaining dis
cipline among the prison employees
Even if the two-mile limit applied to
NIcCue's saloon, Mr. Johnson held that
that fact did not authorize the Warden
to direct his employees not to patronlZe
that particular place. If McCue is thus
Infringing on the law, the method OF
proceeding against him was not In the
manner adopted by Warden Aull for IT
had not been shown that he sold to or
dispensed among the prison employees,
or anyone else, ''Vinous or malt liquors,
but simply that he keeps saloon. In
fact. contended Mr.. Johnson, saloon
is simply a drinking place, and would
still be a saloon even though only tenn
perance beverages We're sold there.
1t was not alleged in the demurrer,
said Mr.. Johnson, that McCue ever sup
piled liquer to any of the guards, or
that he sold or gave away any liquor at
all. but merely that he kept a saloon
Judge Catlin said the general under
standing of the character of a saloon
was that it was a place where various
kinds of liquors and wines were sold,
and he would have to assume such TO
be the fact
After analyzing the points of the de-
murrer and the arguments Of counsel,
the court sustained that portion of the
demurrer relating to the proximity OF
the McCue beverage dispensary to the
State Prison Unless the plaintiff should
be permitted to amend his complaint,
this order dispOses of the case.