Legislature could not have intended that the protection sought to be given to our public schools and churches should thus prove to be of so little value. We do not wish to be understood as holding that mere change of proprietorship necessarily works a forfeiture of the privilege conferred by subdivision 2 of section 24; indeed, we can conceive of cases where the temporary abandonment of the sale of liquors incidental to such a change would be so brief as to constitute no appreciable interruption to the traffic. But where, as in the present case, the business of one proprietor is closed up and no resumption thereof attempted by his successor for sixty days, we think that, within the spirit of the law, the privilege which it grants must be regarded as surrendered.

The views to which we have thus given expression are, as we believe, not only in consonance with every principle of justice and propriety, but they are likewise in harmony with those expressed in numerous instances where a construction of this and similar statutes has been involved. (People ex rel. Cairns v. Murray, 148 N. Y. 171; People ex rel. Gentilesco v. Excise Board, 7 Misc. Rep. 415; People ex rel. Sweeney v. Lammerts, 18 id. 343; affd., 14 App. Div. 628; Matter of Ritchie, 18 Misc. Rep. 341; Matter of Zinzow, Id. 653; Matter of Korndorfer, N. Y. L. J., Nov. 23, 1897.)

Our conclusion of the whole matter, therefore, is that the order appealed from should be reversed and the writ dismissed, with fifty dollars costs and disbursements to the appellant.

All concurred.

Order reversed and the writ dismissed, with fifty dollars costs and disbursements to the appellant.

Second Appellate Department, March, 1898. Reported. 26 App. Div. 564.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. Conrad STOCK, Respondent.

Liquor Tax Law-An offender against its provisions can not be sentenced to an imprisonment of one day for each dollar of the fine unpaidDischarge under a writ of habeas corpus.

The provisions of sections 484 and 718 of the Code of Criminal Procedure, providing that a judgment which imposes a fine may also direct that the criminal be imprisoned until the fine be paid, for a term not to exceed one day for each dollar of the fine, are not applicable to a conviction under the Liquor Tax Law (Laws of 1896, chap. 112, § 34), which makes a sale of liquor by one not having a liquor tax certificate a misdemeanor, punishable by fine and imprisonment, but contains no specific authority to sentence the criminal to imprisonment for non-payment of the fine, the latter statute being designed to cover the whole subject, both prescribing the punishment and the manner in which the fine shall be collected.

Where in such a case a sentence of imprisonment has been imposed for the non-payment of the fine, the prisoner may be released under a writ of habeas corpus.

APPEAL by the plaintiff, The People of the State of New York, from an order of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 18th day of December, 1897, directing the sheriff of the county of Dutchess to discharge the defendant from his custody.

George Wood, for the appellant.

Charles A. Hopkins, for the respondent.

GOODRICH, P. J. The defendant, Stock, was convicted in the county court of Dutchess county on December 13, 1897, under section 34 of the Liquor Tax Law (Laws of 1896, chap. 112), of selling liquor without having obtained a liquor tax certificate, and was sentenced to pay a fine of $300, and in default of pay ment, to stand committed to the county jail for a term not to exceed one day for each dollar of the fine. On December eighteenth he was discharged under a writ of habeas corpus, the order being based upon the theory that the statute did not authorize imprisonment for non-payment of the fine. Two ques tions arise: First, the jurisdiction of the county court to

impose the sentence of imprisonment, and second, the right of the court to review it upon a writ of habeas corpus.

Section 34 of the Liquor Tax Law (5 R. S. [9th ed.] 3492) provides as follows:

66

"§ 34. Penalties for violation of this act.-1. Any corporation, association, copartnership or person trafficking in liquors who shall neglect or refuse to make application for a liquor tax certificate or give the bond, or pay the tax imposed as required by this act, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than two hundred nor more than two thousand dollars, provided such fine shall equal at least twice the amount of the tax for one year, imposed by this act upon the kind of traffic in liquors carried on, where carried on, and may also be imprisoned in a county jail or a penitentiary for the term of not more than one year."

This section provides for the infliction of a fine of not less than $200, and, in addition, imprisonment in the county jail for not more than one year. It does not provide for a commitment to the county jail for a term not to exceed one day for each dollar of the fine, but it is claimed that as the Liquor Law declares the act a misdemeanor, it falls within the provisions of sections 484 and 718

of the Code of Criminal Procedure, which read:

營

"S484. Judgment to pay fine *

#

營

A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied. specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine."

"§ 718. Judgment of imprisonment, until fine be paid; extent of imprisonment.-A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine."

The question arises whether sections 484 and 718 are applicable to the imprisonment mentioned under section 34 of the Liquor Tax Law, which was passed subsequently to the cited sections of the Code of Criminal Procedure.

Section 36 of the Liquor Tax Law (5 R. S. [9th ed.] 3494) provides that the fine must be docketed as a judgment against the person convicted, in favor of the State Commissioner of Excise, and if the judgment shall not be paid within five days after the sentence, the clerk of the county shall issue an execution against the property of the judgment debtor, and that the levy thereunder

shall take precedence of any and all liens, mortgages, conveyances or incumbrances, on the property of the judgment debtor, subsequent to the docketing of the judgment; and that no property of the debtor shall be exempt from such levy and sale, and that where the debtor has furnished the bond authorized by section 18 of the act, the amount of the judgment may be collected from the sureties on such bond.

The learned judge at Special Term held that the imposition of a fine merely was in no sense a criminal punishment, as the statute provided that the debtor might be punished by imprisonment in addition to the fine, and that he could not be imprisoned simply for non-payment of the fine. I think this view is correct.

The 34th section of the Liquor Tax Law provides a specific punishment for the offense therein defined, and the County Court could resort alone to it and section 36 for the punishment and power to enforce sentence. It contains specific directions for sentence for the offense and must be strictly construed. No specific authority can be found in its provisions for imprisoning the defendant for non-payment of the fine. In this view of the completeness of the statute within itself and of all matters re lating to offenses thereunder, I am further confirmed by its pro vision providing for the giving of a bond by each applicant for a tax certificate. It is true that the offense for which the petitioner was convicted was that he neither applied for nor obtained the certificate; but I refer to the bond simply for the purpose of illustrating the reach of the statute.

Still further confirmation of this view is found in Matter of N. Y. Institution (121 N. Y. 234, 239), where the court held “that where prior laws are revised and consolidated into a new act, such act is to be deemed to contain the entire law upon the subject, and that a prior provision of law which is dropped, is to be regarded as repealed. In Ellis v. Paige (1 Pick. 43) it is said: 'It is a well-settled rule that when any statute is revised, or one act formed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the Legislature gross carelessness or ignorance, which is alto gether inadmissible.' In Bartlett v. King (12 Mass. 537) it was held that a subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, upon

principles of law, as well as in reason and common sense, operate to repeal the former."

There is authority for holding that, under statutes which define certain offenses as misdemeanors, a writ of levari facias may be issued to enforce the payment of a fine, but these cases arose under statutes which did not contain any specific method of enforcing the collection of the fine.

This subject was before the court in the case of People ex rel. Gately v. Sage (13 App. Div. 135), where, on conviction for assault in the second degree, the prisoner was sentenced to be imprisoned in the State prison and to pay a fine of $730, and, in default of payment of the fine, that he be further imprisoned in said State prison until the fine was paid, not exceeding 730 days. This sentence was pronounced under section 221 of the Penal Code, which provides that the crime shall be punishable "by imprisonment in a penitentiary or State prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both." In this section there is no special provision for imprisonment in default of the payment of the fine, but this is supplemented by section 484, above cited, and this court (p. 137) said: "If the judgment cannot direct that the defendant stand committed, after the expiration of five years, till the fine be paid, the provision that he may both be imprisoned for five years and fined $1,000 is rendered nugatory."

In the case at bar, however, there is a special provision for the enforcement of the fine, and this differentiates it from the Sage

case.

Turning now to the opinion in Colon v. Lisk (13 App. Div. 195, 204; affd., 153 N. Y. 188), referred to in People v. Sage, (supra), this court held that, by the common law, the writ of levari facias to enforce the payment of a fine, was issuable by the common law on the ground that "it was an attribute of sovereignty authoriz ing the levy for a debt due to the crown by the united process against the body, the lands and goods of the defendant." This action was brought under the statute forbidding trespassing on oyster beds (Chap. 974, Laws of 1895, as amended by chap. 383, Laws of 1896). The statute declared that any person who violated its provisions should be guilty of a misdemeanor. There was in this statute no provision for the issuing of an execution to enforce the payment of the fine, although the vessel an property used in the commission of the offense were made liable