Excise commissioners cannot arbitrarily refuse to issue licenses. Peo. ex rel. O'Toole v. Board of Excise, 16 N. Y. Supp. 798, affirmed, 133 N. Y. 683 Excise Board may refuse license solely because there are already three licensed premises at the intersection of streets where a fourth license is desired, because it is vested with power "to regulate" the sale of liquor which includes the right to restrain it where necessary as well as license only places and persons of good character. Cited, Peo. ex rel. Ryan v. Dalton, 7 Misc. 558 Peo. ex rel. Penny v. Board of Excise, 17 Misc. 98 What charge of keeping disorderly house implies. Proof as to location of licensed premises where descriptions differ. Peo. ex rel. Presmeyer v. Board of Excise, 59 N. Y. 92 L. 1873, ch. 549, sec. 8, providing for cancellation of licenses by Boards of Excise for the sale of liquor on Sunday or for other violations of said act, not unconstitutional, although the licensee has no jury trial. That "the power to license the sale of intoxicating liquors and to cancel such license when granted is vested in the Legislature, has been determined by this court. The mode and manner in which this shall be done rests in the discretion of that body." Cited, People v. Rau, 63 N. Y. 277 Peo. ex rel. Welling v. Meakim, 56 Hun, 626 Olp v. Leddick, 14 N. Y. Supp. 41 Matter of Lyman v. Erie Co. Athletic Club, 46 App. Div. 387 Peo. ex rel. Sprague v. Board of Excise, 91 Hun, 94 Application for license which is defective because it lacks statutory statements cannot be cured by alleging necessary facts in petition for writ of certiorari. Practice in certiorari proceedings under L. 1893, ch. 481, which statute is similar to Liquor Tax Law, sec. 28, sub. 1. Peo. ex rel. Buckley v. Board of Police, 63 N. Y. 623 L. 1872, ch. 687, providing for distribution of certain excise money to Inebriates' Home, Kings county, not affected by L. 1873, ch. 863 so as to authorize Board of Police and Excise of Brooklyn city to contest such distribution. Peo. ex rel. Hull v. Board of Supervisors of New York, 32 N. Y. 473 District attorney's duty to enforce Metropolitan Police Act, L. 1857, ch. 212, sec. 21. (County liable for expenses of prosecution, even where penalties recovered do not belong to county.) "It was eminently appropriate and just that each county specially benefited by the prohibition, should be charged with the duty and expense of penal enforcement within its bounds. We think this purpose was accomplished by charging the duty of prosecution on the appropriate county officer." People v. Bradley, 11 N. Y. Supp. 594 Steward of incorporated club furnishing club members with liquors and punching holes in members' refreshment card to the value received convicted of selling without license. It was entirely immaterial whether liquor was paid for at time of delivery, credit given or the charge indicated by punching holes in the ticket. The question as to whether the defendant had an interest in the liquor or was a mere agent delivering and keeping it for the benefit of other people is of no importance. It devolved upon defendant to prove license. Cited, People v. Luhrs, 7 Misc. 503 People v. Adelphi Club, 149 N. Y. 5 People v. Bradt, 46 Hun, 445 Mere arrest of defendant for keeping disorderly house not competent evidence as to proprietorship of place where liquor is sold without license. If convicted, his ownership of the place and his continued presence there might have greater weight than a pretended leasing of premises as a cover to his proprietorship. Sufficiency of allegation that one bottle of liquor was sold, without limiting same as to quantity, viz.: less than five gallons. Cited, Village of Cortland v. Howard, 1 App. Div. 134 People v. Brown, 16 Wend. 561 Sale of liquor without license is punishable as misdemeanor under 1, R. S. 682, although statute contains no other prohibition than the imposition of a penalty and a provision that all offenses against the provisions of the act are misdemeanors. Cited, Behan v. People, 17 N. Y. 516 Hill v. People, 20 N. Y. 363 People v. Hislop, 77 N. Y. 331 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577 Rollins v. Breed, 54 Hun, 485 People v. Shea, 3 Park. 562° People v. Gilkinson, 4 Park. 26 People v. Brown, 6 Park. Cr. 666 Defendant charged with sale of liquor without license, who proved his license, not properly convicted of selling liquor on Sunday, when he could not legally sell liquor, because his license on its face covered the whole period for which it was issued. Cited, Foote v. People, 56 N. Y. 321 People v. Buffum, 27 Hun, 216 Joint indictment charging sale of liquor without a license where proof showed a storekeeper's license to one who was discharged and a sale by the other to be drunk on the former's premises which the license did not permit. Held, that as the agent of the licensee, defendant was doing business and protected by his license, so that he also should be discharged because of variance between charge and proof. People v. Cited, People v. Bradley, 11 N. Y. Supp. 594 Burleigh, 1 N. Y. Crim. R. 522 Offense of public intoxication within jurisdiction of magistrate under L. of 1867 notwithstanding provisions of Code of Criminal Procedure conferring jurisdiction on courts of special sessions. Cited, Peo. ex rel. Comaford v. Dutcher, 83 N. Y. 240 Peo. ex rel. Murray v. Justices, 74 N. Y. 406 People v. Putnam, 3 Park. 386 People v. Van Houton, 13 Misc. 611 Peo. ex rel. Brooks v. Bush, 22 App. Div. 363 Irregularities in conduct of election. Effect upon validity of result of local option contest. Peo. ex rel. Dakin v. Byrne, 9 Abb. N. C. 127 Upon application for peremptory writ of mandamus to compel superintendent of police to enforce the Excise Law by closing saloons on Sunday, the return denied having intentionally permitted any violation of law, and a special verdict rendered to the effect that defendant had failed and neglected to close and keep closed certain saloons during a specified period of time. Held, that verdict did not show that the failure to do so resulted from a design to allow the law to be systematically violated. Mandamus will not lie to compel officer to do his duty during specified period long passed. Until something has been established showing that the law is not designed or intended to be enforced a court of justice cannot interpose its authority. People v. Capen, 26 Hun, 377 Defendant took order for liquor in no-license town of Corinth, Saratoga county, took order to his master at Glens Falls, who filled it by giving liquor ordered to servant who took it to Corinth, delivered it to the purchaser and received pay therefor. Held, to be a sale at Corinth. Upon the whole case we think it would be a violation of law to send liquors from one town where a license permits a sale to another town where the sale is unlawful, by an agent or servant of the seller, to be delivered and pay therefor collected of the purchaser. People v. Charbineau, 115 N. Y. 433 Sale less than five gallons without license a crime indictable under L. 1857, though not so expressly declared. Indictment charging such an offense also charging in separate count such a sale of liquor to be drunk on premises not demurrable as charging more than one offense. Cited, People v. Bradley, 11 N. Y. Supp. 594 People v. Wilson, 151 N. Y. 409 People v. Brede, April, 1897, unreported Peo. ex rel. Curran v. Commissioners, 12 Misc. 296 Refusal of excise commissioners to permit a transfer because of an alleged sufficient number of licensed places in the vicinity, followed immediately by favorable action on a similar application held to be arbitrary. Peo. ex rel. Friel v. Commissioners, 2 App. Div. 89 Upon application to revoke a license, proof of conviction of a woman for selling liquor on Sunday at licensed premises without proof that she sold with licensee's permission or that she was not a member of his family, etc., not sufficient because unless the licensee is convicted there must be two convictions to warrant the revocation. Cited, Cullinan v. Burkard, 41 Misc. 325 Matter of Lyman v. Malcolm Brewing Co., 160 N. Y. 96 Peo. ex rel. Hopkins v. Commissioners, 4 Misc. 330 A declaration by an excise board that an application for a license has been refused in the exercise of their discretion after due consideration and deliberation on the merits will not be sustained upon judicial review where it appears that the excise commissioners have arbitrarily determined not to issue any licenses because they were elected not to issue them. Cited, Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 Peo. ex rel. Kidd v. Commissioners, 25 N. Y. Supp. 873 "While local option does not exist in the strict meaning of that term in this State, there is a practical local option." If excise commissioners conclude that they will grant no licenses, their decision may not be reviewed. Peo. ex rel. Van Demark v. Commissioners of Excise, 7 Abb. Pr. 34 Mandamus will not lie to compel a Board of Excise to grant a license, especially after the expiration of the ten day session in which the statute of 1857 authorizes licenses to be issued. "The structure of modern statutes, and especially those on the subject of excise, creates a pressure upon the courts often difficult and embarrassing. The present law has been perhaps as much as any other the subject of reproach, even to the charge of absurdity in its provisions. The duty of the court, however, without regard to those complaints, will be best discharged by the attempt to give it such fair construction as a whole and in its several parts as shall be most consistent with the apparent intent of the Legislature, without reference to the hardships or the inconvenience in particular cases." Peo. ex rel. Watkins v. Commissioners, 4 Misc. 547 That portion of Excise Law of 1892 relative to local prohibition has reference to the system of voting for excise commissioners who should favor local prohibition. Although the last commissioner elected may have been in favor of license, the last vote of the town does not reverse local prohibition, because the commissioners act as a body,-the majority control. Cited, Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 Peo. ex rel. Wood v. Commissioners, 75 Hun, 226 Peo. ex rel. Wood v. Commissioners, 75 Hun, 224 Refusal of excise commissioners to issue licenses because elected as nolicense commissioners" sustained, under L. 1892, ch. 401, recognizing "local option" by electing excise commissioners under L. 1874, ch. 444. Cited, Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577, affirmed, 77 N. Y. 331 selling Habeas corpus to release one convicted in special sessions for and giving" liquors to an intoxicated person in violation of L. 1857, ch. 628, sec. 18, and sentenced to pay $25 and certain imprisonment. Statute created a new offense and provided that whoever shall sell or give away liquors thus-" shall be subject to not less than ten or more than twenty-five dollars for each offense." Held, that the new offense was not a misdemeanor; that only the particular penalty prescribed by the statute could be imposed and the only mode of collecting it could be applied. Peo. ex rel. Hislop v. Cowles, 77 N. Y. 331, affirming 16 Hun, 577 Sale to intoxicated person in violation L. 1857, ch. 628, sec. 18 not punishable criminally but civilly. Cited, People v. Charbineau, 115 N. Y. 433 People v. Cramer, 22 App. Div. 189 What facts justify inference of a sale. Information alleging facts on information and belief without stating sources of same insufficient, except as to allegation that defendant had no license because the people are not required to prove that. Cited, Peo. ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div. 447 People v. Cramer, 2 Park. Cr. 171 The plea of "autre fois convict" cannot be established without proof. Where the record does not show offenses are identical it lies with the defendant to establish by proof, aliunde, that such was the fact. People v. Crilley, 20 Barb. 246 "Ale" not a "wine" or a "strong or spirituous liquor" within meaning of 1 R. S. 680. vited, Board of Commissioners v. Taylor, 21 N. Y. 173 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 "Florence Mission" as described not used exclusively as a church. Power of court reviewing decision of excise commissioners. Cited, Peo. ex rel. Simons v. Murray, 14 Misc. 177 Peo. ex rel. Ryan v. Dalton, 7 Misc. 558 Fake hotel under Excise Law of 1892 established to evade rule of Excise Board in New York city not to grant saloon licenses for three corners of intersecting streets. Decision of Excise Board sustained. Hotel not necessarily entitled to license even if it is the only one in the neighborhood. "Liquor is not ncessary to the existence of a hotel." Cited, Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 People v. Davis, 45 Barb. 494, affirmed, 36 N. Y. 77 Jurisdiction over sales upon boundary line of two counties or within 500 yards of such boundary given to either of such counties by 2 R. S. 727, sec. 45. |