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ment under such certificate, the status of property invested with the qualities of being assigned, transferred and disposed of.

By section 25 it is provided that the person holding such certificate may surrender it and have refunded the pro rata amount of the tax paid for the unexpired term. By section 27 it is provided that a person to whom such certificate is issued may sell, assign and transfer it and that the assignee may thereupon carry on the business for which such certificate was issued. By another clause of section 25 it is provided that if a corporation, association or copartnership holding a liquor tax certificate shall be dissolved or a receiver or assignee be appointed therefor, or a receiver or assignee of the property of a person holding a liquor tax certificate be appointed during the time for which such cer tificate was granted, or a person holding a liquor tax certificate shall die during the time for which such tax certificate was given, such corporation, association, copartnership or receiver or assignee, or the administrator or executor of the estate of such person or the person or persons who may succeed to such business, may surrender such liquor tax certificate or continue to carry on the business thereunder.

Under these provisions there would not seem to be any doubt that there had been conferred upon and attached to a certificate the quality and power of being transferred and assigned as was done in this case. In fact, one of the provisions above quoted would seem to specifically authorize what has been done in this case, for in that clause conferring rights upon "a receiver or assignee of the person holding a liquor tax certificate

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appointed during the time for which such certificate was granted," it would be a narrow construction, especially in view of the broad and-general provisions of the statute, to hold that the word "appointed," referred exclusively to a receiver or assignee named in proceedings hostile to the owner of the certificate and did not as well apply to an assignee appointed by the holder himself as in this case. It was intended by the parties to make the instruments under consideration irrevocable. They were executed and delivered for value and very likely are so, but that question is not presented here, for the assignor has expressly appeared on this application and by his affidavit not only has not repudiated the transfers but has recognized and ratified them.

I pass to the second question above suggested, whether these instruments should have been filed as a chattel mortgage to make

them effective as against the receiver. The receiver simply took and has the rights left to Lenz at the time the receivership was created. No question is presented such as would arise between the Bartels Brewing Company and a subsequent bona fide transferee of Lenz for value and without notice of the prior assignment. The only contention is that these transfers amounted to a chattel mortgage and that, therefore, they are void under the express statutory provisions relating to the filing of chattel mortgages. It is quite clear, however, both from the reading of the statute itself and from the authorities relating to similar statutes, that it does not apply here and that it was not necessary to file the assignment and power of attorney.

The statute invoked reads as follows: "Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged shall be absolutely void, etc."

It is obvious that this act is not intended to apply to mort gages upon all species of personal property, but that the terms used of "goods and chattels," and "things" include and refer only to personal property which is visible, tangible and movable and not to mere choses in action.

This contention is amply sustained by the following authorities relating to the meaning of the same and similar statutes and words: Williamson v. New Jersey Southern R. R. Co., 26 N. J. Eq. 403; Bacon v. Bonham, 27 id. 209; Kilbourne v. Fay, 29 Ohio St. 264; Marsh v. Woodbury, 1 Metc. 436; Kirkland v. Brune, 31 Gratt. 126, 131; Passaic Mfg. Co. v. Hoffman, 3 Daly, 495, 513; Putnam v. Westcott, 19 Johns, 73.

It has even been held that the filing or refiling of a chattel mortgage is not necessary to secure its validity as against a receiver in supplementary proceedings. Steward v. Cole, 4 N. Y St. Repr. 428.

In accordance with the foregoing views and conclusions, the application for a peremptory writ of mandamus is denied, with ten dollars costs.

Application denied, with ten dollars costs.

Supreme Court, Seneca

Special Term, January, 1897. Reported. 19 Misc. 340.

Matter of the Petition of SAMUEL H. SALISBURY, for an Order Revoking and Cancelling the Liquor Tax Certificate of PATRICK H. LYONS.

Matter of the Petition of SAMUEL H. SALISBURY, for an Order Revoking and Cancelling the Liquor Tax Certificate of MARTHA E. ACTON.

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The general exception in section 24 of the Liquor Tax Law of 1896, as to places in which the liquor traffic was carried on at the time of the passage of the act, qualifies both subdivisions of that section, and applies to hotels and places devoted to the liquor traffic which are within one-half mile of a penal institution, protectory, industrial school, asylum, state hospital or poorhouse, and at least one-half mile from the nearest boundary of an incorporated village or city.

SPECIAL proceedings brought under section 28 of the "Liquor Tax Law" to revoke liquor tax certificate No. 33,782, issued by Maynard T. Corkhill, county treasurer of Seneca county, to Patrick H. Lyons, on the 6th day of November, 1896; and the liquor tax certificate No. 30,480, issued by said county treasurer to Martha E. Acton, on the 17th day of October, 1896. The facts in both cases are the same and are undisputed. The only question in either case arises upon the construction of section 24 of said act. By stipulation of opposing counsel both cases were argued and submitted as one case and will be so treated in deciding the

same.

Mead & Stranahan, for petitioner.

Daniel Moran, for respondents.

WERNER, J. Each of said respondents was, at the time of the passage of the law known as the "Liquor Tax Law," lawfully engaged in conducting a hotel in the town of Romulus, Seneca county, N. Y., within one-half mile of "Willard State Hospital," which is an institution owned by the public and in which the State of New York keeps and cares for its dependent insane; and neither of said hotels is within an incorporated village or city,

or within one-half mile of the nearest boundary of any incorporated village or city. The application for the revocation of said certificates is made on the ground that material statements in the applications for the same were false, and on the further ground that the holders thereof are not legally entitled thereto. The statements in said applications which are alleged to be false are as follows:

10. May the applicant or applicants lawfully carry on such traffic on said premises under such subdivision?" Subd. 1, § 11. "Yes."

"11. Is the applicant or either of them within any of the prohibitions of said act?" "No."

The alleged falsity of these statements, which are the same in both applications, is predicated upon the language of said section 24, which we are asked to construe, and which reads as foilows:

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"§ 24. Place in which traffic in liquor shall not be permitted.-Traffic in liquor shall not be permitted:

"1. In any building owned by the public, or upon any premises established as a penal institution, protectory, industrial school, asylum, state hospital or poorhouse, and if such premises be situated in a town and outside the limits of an incorporated village or city, not within one-half mile of the premises so occupied, provided there be such distance of one-half mile between such premises and the nearest boundary line of such village or city; nor

"2. Under the provisions of subdivision 1 of section 11 of this act, in any building, yard, booth or other place which shall be on the same street or avenue and within two hundred feet of a building occupied exclusively as a church or a schoolhouse; the measure ments to be taken from the center of the nearest entrance of the building used for such church or school to the center of the nearest entrance of the place in which such liquor traffic is desired to be carried on; provided, however, that this prohibition shall not apply to a place which is occupied for a hotel, nor to a place in which such traffic in liquors is actually lawfully car ried on when this act takes effect, nor to a place which at such date is occupied, or in process of construction, by a corporation or association which traffics in liquors solely with the members thereof, nor to a place within such limit to which a corporation or association trafficking in liquors solely with the members

thereof when this act takes effect may remove; provided, however, such place to which such corporation or association may so re move shall be located within two hundred feet of the place in which such corporation or association so traffics in liquors when this act takes effect."

In the effort to ascertain the legislative intent in the passage of the "Liquor Tax Law," certain well-settled rules of statutory con struction, which are of general application, must be invoked. The first of these is, that the intention is to be deduced from a view of the whole statute, and that intention, when ascertained. will always prevail over the literal sense of the terms. Matter of Brooklyn Bridge, 72 N. Y. 529. Or, as the rule is stated in Smith v. People, 47 N. Y. 330, "In the construction of statutes. effect must be given to the intent of the legislature whenever it can be discerned, though such construction seems contrary to the letter of the statute"; and again, in Hayden v. Pierce, 144 N. Y 516, "Language, however strong, must yield to what appears to be the intention, and that is to be found, not in the words of a particular section alone, but by comparing it with other parts or provisions of the general scheme of which it is a part."

Applying these rules of statutory construction to the case before us, let us briefly examine the purpose and scope of the statute as a whole, and also the provisions of certain separate sections thereof, before devoting our attention to the language of section 24. The evident purpose of the legislature, as dis closed by the context of the whole act, was to completely change the system under which the liquor traffic had previously been carried on, without invading or abridging the vested rights of persons lawfully engaged in said traffic at the time of the change in the law. Whether those lawfully engaged in said liquor traffic at that time had in fact any vested rights in the premises it is not necessary now to determine. It is perfectly clear that the legislature, in the sweeping changes created by its enactment of chapter 112 of the Laws of 1896, sought to minimize the hard ships incident to this revolution in the law, by certain well-defined exceptions to the stringent provisions of the statute in favor of those lawfully engaged in the liquor traffic at the time of the passage of said act. These exceptions evince a disposition on the part of the legislature to deal as equitably as the enforcement of the new law would permit with those who had lawfully acquired rights or privileges under the old law.

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