casualty, and that fact plainly appears. That would present a different case, to be determined upon a different principle. All that I undertake to hold here is that where it appears that the certificate is in existence, the commissioner of excise cannot be called upon to accept a surrender of the same without its physical production for cancellation. For the reasons which I have stated, it follows that the demurrer must be overruled and judgment awarded to the respondent, dismissing the writ.

County Court, Broome County, December, 1896. Unreported.

PEOPLE v. SAMUEL J. WEIR.

APPEAL from a judgment of the Recorder's Court of the City of Binghamton convicting the defendant of having violated section 1 of article 1 of title 7 of the Ordinances of the City of Binghamton in keeping his saloon open for the transaction of business, between the hours of twelve o'clock midnight and one o'clock in the morning.

Charles F. O'Brien and R. B. Richards, for appellant.

James T. Rogers, for respondent.

ARMS, Co. J.: Section 1 of article 1 of title 7 of the Ordinances of the City of Binghamton provides that "every saloon, restaurant, bar or other place, where any distilled or fermented liquor is kept for sale (except drug stores) and every billiard room, bowling alley, or place where games of chance or skill are carried on or permitted, as a business, or in connection with any business, shall be closed on Sundays and every night on or before twelve o'clock and shall remain closed until five o'clock the following morning.

"Any person owning or having charge of any place above mentioned, who shall violate any provisions of this section shall be subject to a fine not to exceed $100.”

This ordinance was in force when chapter 112 of the Laws of 1896, known as the Liquor Tax Law, took effect.

There is no dispute over the facts, and the only question pre

sented here is whether the ordinance above quoted is still in force notwithstanding the passage of chapter 112 of the Laws of 1896. By section 44 of that act it is provided that "the pro visions of any special or local law, grant or charter in conflict with this act are hereby repealed and annulled" and it is con tended by the appellant that this provision repealed the pro visions of the local ordinance, while on the other hand it is con tended by the respondent that the legislature and the ordinance in question do not conflict; that the ordinance does not assume to regulate the traffic in liquors but is a part of the police power conferred upon the local authority to regulate the times, and the places, where such traffic shall be conducted.

It was said in People v. Murray, 4 App. Div. 193, that the result of the new liquor law was "the total extinction of an entire excise system and the creation of another and different one, including the whole State and embracing in a single scheme everything necessary to the establishment and operation of a complete system, even to the very details required by different conditions in different localities." This case was affirmed in the Court of Appeals, it being the case in which the constitutionality of the law was assailed.

It is a well-settled rule that a later statute covering the same subject-matter and embracing new provisions operates to repeal the prior act, although the two acts are not in express terms repugnant.

Another well-settled rule is, that where a later statute not pur porting to amend a former one upon the same subject, covers the whole subject and was plainly intended to furnish the whole law thereon, the former statute will be held to be repealed by necessary implication.

Chapter 112 of the Laws of 1896, is named "Liquor Tax Law,' but it was said in People ex rel. Einsfeld v. Murray, 149 N. Y. 39: "It is radically different in some respects from the excise laws. which it superseded. But the changes are in the administration of the excise system and not in its essential character. The most notable changes are (1) State supervision in place of supervision through Boards of Excise, and (2) the opening of traffic to all citizens (with certain exceptions) who shall pay the license tax and give the bond required."

A careful examination of the Liquor Tax Laws leads one almost irresistibly to the conclusion that it was intended as a

general and uniform law, and as the only law, to govern and control the business of trafficking in liquors on the points to which its provisions relate and for which they provide. To hold otherwise might lead to serious complications and difficulties.

Under its provisions a person holding a tax certificate has the unquestionable right to sell up to one o'clock in the morning Urtil that time, he is not required to expose to view from the street the inside of his place of business. Now if the ordinance in question is still in force, while he would be obliged to close and lock his outside door at twelve o'clock, he might have any number of people inside between the hours of twelve and one to whom he could sell whatever they wanted for the period of one hour, during which time their acts and conduct would not be subject to the observation of or interference by any officers of the law, as neither a special agent or a police officer would have any authority to break in and enter the place. It seems quite apparent that the two provisions are both inconsistent and repugnant. The license tax imposed by this act is uniform and equal in its several grades in all the counties of the State and, if it were to be subject to either abridgment or partial nullification by local authorities it would no longer be a uniform scheme under the direction of the State, but might be made subordinate to the varied and different ideas of the different towns, villages and cities throughout the State. Such legislation. would be absurd in theory and might easily lead to inequality and injustice. Moreover, I am of the opinion that the ordinance in question was expressly repealed by section 44 of the Liquor Tax Law.

From these views, it follows that the judgment of conviction should be reversed and the defendant discharged.

Supreme Court, Washington Special Term, December, 1896. Unreported. In the Matter of the Application of JOSEPH C. RUSSELL to revoke the Liquor Tax Certificate of MICHAEL NOONAN.

STOVER, J. This is an application under section 28 of the Liquor Tax Law, for the revocation of a certificate. The only issue raised by the proof is as to the allegation that the consent

of two-thirds of the owners of buildings, occupied exclusively as dwellings, was not obtained by the defendant at the time of making his application. It appears that there were two buildings within 200 feet of the property; Mrs. Frasier's, whose consent was obtained, and the petitioner's. The petitioner is a practicing physician, and has an office in the building occupied by him as a residence. He receives his patients there and is engaged in the general practice of medicine.

The simple question is whether this is a building occupied exclusively as a residence. While it may be said that the object of the restriction was to maintain the privacy of the home, and to prevent rendering residential localities objectionable, by the placing of saloons near them, yet it was within the power of the Legislature to limit the operation of the rule, and it has seen fit to do so, by providing that the building should be exclusively used for residential purposes. The office contains the medical books, some medicines, bottles, and the usual paraphernalia of a physician's office. The petitioner has a sign upon the building and testifies that he is in active practice.

No test has been laid down as to what shall be considered a residence within the meaning of the statute under consideration, but I am inclined to think upon the principle, that where a por tion of a building is used for the purposes of a general business, or the general practice of a profession, to which the public is invited, it can not be said to be used exclusively for residential purposes. As for the purpose of this case, the using of a portion of a building as an office, for the general practice of a profession, would be quite as much an interference with the use of the building for residential purposes, as a setting apart of the same space for the carrying on of any mercantile or other business. The public is invited to the room, not for the purpose of mere social intercourse, but for the purpose of availing itself of the professional advice and treatment of the petitioner; and I take it that to this extent the portion of a building occupied by an office is subordinated to its use for residential purposes. While it may be said that the evil to the family of the petitioner is just as great as though the building were occupied exclusively as a resi dence, yet with this the court can have nothing to do. The Legislature has seen fit to impose the restriction and to confine the operation of the statute to the buildings that are used exclusively for residential purposes. The remedy, if any, lies with the legis

lative power, and the court has no discretion to exercise in the premises.

I think the petitioner has failed to sustain the allegations of his petition and the application to revoke or cancel must be denied.

City Court of New York, General Term, December, 1896. Reported. 18 Misc. 604.

Matter of HERMAN, et al., Judgment Creditors v. BORRIS M. GOODSON, Judgment Debtor.

W. HARRY COHEN, as Receiver, Appellant; THE S. LIEBMAN SONS BREWING CO., Respondent.

Excise-Assignment of certificate.

An assignment of a liquor tax certificate can not be treated as a nullity or attacked collaterally by a receiver of the licensee; if he desires to question its legality he must do so by action to set it aside.

APPEAL from an order requiring the receiver to surrender a liquor tax certificate to the brewing company.

W. O. Campbell, for appellant.

Samuel Hoff, for respondent.

FITZSIMONS, J. The defendant and judgment debtor herein, desiring, prior to the judgment herein, to carry on a saloon business in this city, applied to and received from the proper authority a license to carry on such business.

The license fee of $800 was loaned him by the S. Liebman Sons Brewing Company, and it received from him an assignment of such license; the deputy excise commissioner, upon receipt of said $800 and it having been established to his satisfaction that Goodson was a proper person to receive such license, issued it to him; a receipt for said license fee, which empowered said Goodson to carry on said saloon business until a license was issued to him, and the assignment herein referred to was made prior to the issuance of the said license.

The judgment herein was obtained against the said Goodson, the receiver herein was appointed and he received from the

!