The counsel for the sheriff makes the further point that the judgment of the County Court was merely erroneous and could not be corrected by habeas corpus proceedings. The difficulty with this contention is that a portion of the judgment or sentence was void and beyond the authority of the court to impose. The imprisonment for the penalty or fine directed by the judgment is in excess of that which, by the law, the court had the power to make, and is void for such excess, and can be so declared in a habeas corpus proceeding to relieve the convicted party from imprisonment under such void provision. (People ex rel. Tweed v. Liscomb, supra; People ex rel. Trainor v. Baker, and People ex rel. O'Brien v. Woodworth, supra; Ex parte Lange, 18 Wall. 163.) The majority of the court, however, have reached conclusion to reverse the order appealed from and dismiss the proceeding upon the ground that the proceedings are premature as held in People ex rel. O'Brien v. Woodworth and People ex rel. Trainor v. Baker (supra), and People v. Sutton (6 N. Y. Supp. 95). It is true that, at the time the order appealed from was granted, that part of the sentence which imposed an imprisonment of six months had not expired; but the imprisonment for the penalty, was a part of the sentence imposed, and the writ of habeas corpus was taken for the purpose of determining the validity of that portion of the sentence. The sheriff in his return to the writ justified the detention of the relator under the entire sentence. The point does not seem to have been raised in the court below that the proceedings were premature, and the opinion of the judge at Special Term discusses only the question that I have considered in this opinion. In the history of the case stated in the appellant's points it is stated that the application was opposed upon the grounds that the relator was held in custody "by the sheriff upon a final judgment of Niagara County Court sentencing said relator to imprisonment in Niagara county jail for the term of six months, and to pay a fine of $1,050, and be imprisoned until such fine was satisfied, not to exceed ten hundred and fifty days." The statement then refers to the order made, but the objection upon which my brethren disposed of this case was not raised, and in view of the importance of the question involved I felt it my duty to consider that question. This appeal was heard after the six months' term of imprison ment had expired and the relator had been discharged upon the order of the Special Term. I think, in the absence of the objection that the proceeding was premature, the Special Term had power to pass upon the only question presented. While some of the cases cited seem to hold that the proceeding was premature, they cannot be regarded as holding that, where the question was not raised, the court had not jurisdiction to pass upon the whole sentence and determine in advance what portion of the sentence, if any, was illegal. Indeed, an excellent reason may be found for determining that question in advance, because, after the legal portion of the sentence has expired, the prisoner may be subjected to illegal imprisonment during the time necessary to have his case disposed of upon habeas corpus. These considerations lead to the conclusion that the order appealed from should be affirmed. Order reversed and proceedings dismissed. Fourth Appellate Department, December, 1897. Reported. 24 App. Div. 632. In the Matter of the Application of GEORGE R. NOBLES, for the Revocation and Cancellation of the Liquor Tax Certificate of JAMES H. YOUNGS. Dolson & Dolson, for appellant. License was granted to one Duke, March 6, 1896, and was in force and uncancelled on March 23, 1896, though the building was not actually used for the sale of liquors, negotiations being had for its remodeling for such use, which was subsequently done; liquor tax certificates were issued continuously to April 30, 1898. The order revoking and cancelling defendant's liquor tax certificate, upon the ground that the traffic in liquor was not actually and lawfully carried on upon said premises on March 23, 1896, and that defendant had made false statements in his application, was untenable, and there was no evidence showing falsity of such statements. The certificate was a license for the building, (People v. Hamilton, 47 N. Y. Supp. 181) and the words "actually lawfully carried on" should be given such construction as would carry out the intent of the legislature. (People ex rel. Wood v. Lacombe, 99 N. Y. 43; also 95 N. Y. 558; 10 N. Y. 369; 21 N. Y. 461; 13 N. Y. 78; 22 Wend. 397; 6 Hill, 619.) This proceeding could be brought only by the owner of a building within two hundred feet, as such a provision is made for the protection of such owners. Clarence A. Farnum, for respondent. No traffic was carried on on March 23, 1896, for the premises were vacant. Duke had a license which expired May 1, 1896, but such license could not avail the appellant, for his own certificate was not granted until August 31, 1896. (People ex rel. Cairns v. Murray, 148 N. Y. 175; Matter of Zinzow, 18 Misc. 653; Matter of Ritchie, 18 Misc. 341; People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affd. 14 App. Div. 628.) Order affirmed, with costs. All concurred, except WARD, J., not voting. Supreme Court, New York Special Term, December, 1897. Unreported. Matter of the Application of HENRY H. LYMAN, as Commissioner, to Revoke the Liquor Tax Certificate of TRUE FRIENDS SOCIAL AND LITERARY CLUB. STOVER, J. This is an application for the cancellation of a liquor tax certificate by reason of the violation of the law by the sale of liquors within prohibited hours. This is one of a number of clubs, so-called, where liquor is sold to any person applying for membership in the club, which is accomplished by the purchase of a ticket, or the procurement of a ticket entitling the holder to admission to the club-room. There is no doubt that liquor was sold within the prohibited hours, viz., between the hours of one and five o'clock a. m., and on Sunday. Section * * * 31 of the Liquor Tax Law provides: "It shall not be lawful for any corporation, association, copartnership or person, whether having paid such tax or not, to sell, offer or expose for sale, or give away, any liquor: (a) on Sunday, or before five o'clock in the morning on Monday; or (b) on any other day between one o'clock and five o'clock in the morning By a subsequent provision of the act it is provided "That a corporation or association organized in good faith, under chapter 559 of the Laws of 1895, or under any law which, prior to May 6, 1895, provided for the organization of societies or clubs for social, recreative or similar purposes, and which corporation or association was actually lawfully organized, and, if a corporation, its certificate of incorporation duly filed prior to March 23, 1896, and which at such date trafficked in or distributed liquors among the members thereof, is excepted from the provisions of clauses a,' 'b,' 'c' and 'd' of this section It is claimed by the respondent that the burden is upon the petitioner to show that the respondent is not a club within the exception of the statute. No evidence being offered upon that subject, and the testimony not disclosing the fact, it is claimed that the petitioner has failed to make a case calling for the cancellation of the certificate. The object of the corporation, as set forth in the articles of incorporation, are stated to be "The improve ment of its members in the arts of oratory, composition and debate; the fostering of a knowledge of and appreciation for English literature, and the promotion of social and friendly intercourse among its members." The presumption is that the society is engaged in carrying out the purposes of its incorporation, and, in doing so, performing such acts as are directly involved in or incident to such purposes; but it cannot be said that the sale of liquor is either a portion of or necessarily incident to the business of carrying out the purposes of the incorporation. The presumption would, therefore, be, rather, that the society was not engaged in the sale of liquor than that it was. And if the rule of law was such as is contended for by the respondent, slight evidence only would be necessary to sustain a finding that the association was not engaged in the traffic of liquor prior to March 23, 1896; the facts being almost exclusively within the knowledge of the members of the corporation themselves, and the proof of the facts accessible to the corporation, and not to the petitioner. It may be readily seen that the principle involved is identical with that formerly arising under prosecutions for selling without a license, and the rule may be said to have been definitely settled that upon prosecutions for selling liquor without a license, the holder of the license is bound to show his license as a matter of defense, the sale having been proven. People v. Quandt, 2 Parker's Crim. Rep. 410; Smith . Joyce, 12 Barb. 31; People v. McIntosh, 5 N. Y. Crim. Rep. 38; Jefferson v. People, 101 N. Y. 19; People v. Briggs, 114 id. 56. These cases cited are criminal cases, where the rule of evidence would apply perhaps more strictly than in civil cases, and I take it these applications are governed by the rules per taining to civil cases, rather than criminal. So, in Rowell o. Janvrin, 151 N. Y. 60, the rule is stated to be: That when a party counts upon the enacting clause of a statute containing an exception, as the foundation of his action, he cannot logically state his case unless he negative the exception. But if the modifying words are no part of the enacting clause, but are to be found in some other part of the statute, it is otherwise, and he may then state his case in the words of the enacting clause, and it will be prima facie sufficient." And again, "When a statutory enactment is modified by engrafting upon it a new provision, by way of amendment, providing conditionally for a new case, such modification is in the nature of a proviso." The distinction being made, "An exception takes out of the statute something that otherwise would be part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse." The case of Rowell v. Janvrin arose upon a in an action to enforce a stockholder's liability, and it was held that it was not essential to the statement of the cause of action to negative the exception, and the reason of the rule, as stated by the textwriters, is, that the fact as to the transaction is peculiarly within the knowledge of the party for whose benefit it is invoked. And, therefore, it is said in such cases, but slight evidence is sufficient to sustain the burden of proof, and as has been seen in peculiar cases arising under the statute, the burden is put upon the party seeking to avail himself of the privilege or exception of proving himself entitled thereto. And when we consider the language of the section under consideration, it seems to me to be quite clear that the Legislature intended this construction should be put upon it; for, by the first provision of the law, all persons, associa tions, corporations, etc., are included within the prohibition. # |