Evening journal., 1914-06-11

VI Nehefdi SESSIONS or Other proper
process provided by law. II follows
therefore that the llcensee Is pro-
tected In making sales under his
license, Hntil some action Is taken %
appeal from the Judgment Of fhc
Court OF General Sessions, and the
Judgment Of that Court Is reversed.
1T Is unnecessary. in view OF the
foregoing, to consider the fourth
question, as the license must stand
whatever II contains, as It follows .he
judgment Of the Court"
Judge Churchman next considered
the subject OF Penalties" and says;
Counsel for the defendant con
tends that II has beon expressly de-
cided by the Court OF General Ses-
sions, IN this County that the penal
ties IN section II of the act OF 1881 do
not apply to the offense OF selling
intoxicating liquor without license,
and relies entirely upon the case OF
state VS.. Mundy a Boyce 40) as sup
porting that contention. Counsel
further contends that the question
was directly ruled on by that Court
in that case
Judge Churchman quotes the
Mundy Case decision from first Boyce
Reports, and analyses the decision.
He says;
it appears from careful reading
OF the case, that the defendant In that
case vas charged with unlawfully
selling Intoxicating liquor in a guam
uty less than one-half gallon, he at
the time having a license to sell IN.
toXieating liquors only in quantities
not less than one-half gallon.
After the indictment was found,
defendant filed a demurrer 10 the in
dictment, and the principal ground Of
the demurrer, as stated by the Chief
Justice, was that the Municipal Court
Of the City of Wilmington had sole,
exclusive and final jurisdiction in the
oifense in the indictment, and there
fore the Court of General Sessions
was without jurisdiction IN the cause.
The Court then stated upon the
authority Of Forbes VS.. State, 2 Penn.
lsl that the Municipal Court is given
sole and exclusive jurisdiction OF
odenses arising from selling without
/ license Intoxicating liquors. contrary
TO law, in the City Of Wilmington"
The Court It will be observed,
stated clearly and decisively, what
the question was before the Court,
that was, whether or not the offence
was the offense Of selling intoxica-
ting liquor without license.
The case is certainly decisive upon
that question, and upon that question
alone.
The question in the Mundy case
went to the nature of the offense, 10
that and that alone; and they decided
| that question and that question alone.
The question of penalties to be i'm
posed IN case of conviction, was not
I even mentioned by the Court, let
alone decided The Court in con
Guiding its opinion says: The penalty
70 be imposed would be such as the
Legislature provided should be inn
posed for such an offense BY the
use Of this expression, the Court
clearly indicated that they did not
pass upon the question OF what
penalty would be imposed, but state
that It would be the penalty that the
Legislature provided.
Il am clear that the Court did mot
decide the question in the Mundy
case, for the question Of what penal
ties were TO be imposed was not be-
fore the Court for decision, and the
contentious OF Counsel for the defen-
/ dant are without any basis, SO far as
! penalties are concerned
Counsel for the defendant in con-
\ tending that the .Mundy case is con
\ trolling IN this case, relies, Of course,
upon the doctrine Of stare deciss.
which means, to adhere to decided
cases and not disturb matters esta-
| blished. This is also the doctrine OF
precedents, and a precedent is a Judi
cial decision which serves as a rule
! for future determination In similar
or analogous cases (26 Am. & Eng
Enc. Of Law, 2 ed, 159) and the doc
trine only relates 10 direct and con
trolling decisions, establishing prece-
dents involving the same or similar
issues"
Judge Churchman quotes many au-
thortiss, both Of this country and
England, as to the Interpretation OF
the language of a Court and con-
/ cludes:
without either admitting or deny
ing that the rule OF stare decisls can
apply in a case such as the case at
bar, ! would feel compelled to follow
| the decision OF the Court OF General
1 Sessions in any case in which it had
decided the point or matter in dis
pute. And that doctrine cannot an
ply in this case because the matter in
issue and involved in the question
under consideration. was not a mat
| ter established in the Mundy case.
within the definition Of the doctrine
above quoted Nor Is it such a Judi
i NAL IL -
/ in this case, because this case is not
a similar or analogous case 10 the
! Mundy case; nor does IL involve the
same or similar issues"
II am therefore, Of the opinion that
the Mundy case is not decisive OF the
/ question under discussion. In my
opinion the Court in the Mundy case,
| from The language used in that case,
and particularly the concluding part
thereof, never intended even to OK
press any opinion as to what penal
ties were TO be imposed
THE question of the construction
of the Two statutes Is. therefore, an
oDen one in this State.
THE Legislature in 1873, in Section
19 Of the Act Of 1873, provided that
unless a specific penalty was provided
for a violation of the Act, the penalty
for sucn violation would be q fine OF
not less thar Fifty Dollars nor more
than One Hundred Dollars
''The Legislature in 1881, eight
| years afterward, passed another Act
in relation to intoxicating liquors,
and provided in the Act OF 1881. in
Section IL, that every violation of any
provision OF the Act of 1881, and also
| every violation of any other Act ra-