THE

MISCELLANEOUS REPORTS

OF THE

STATE OF NEW YORK.

COMMENCING APRIL, 1896.

THE PEOPLE ex rel. BENJAMIN BASSETT V. THE WARDEN OF THE CITY PRISON.

(Supreme Court, New York Special Term, April, 1896.)

- Liquor Tax Law

Section 31 of chapter 112, Laws of 1896, known as the Liquor Tax Law, prohibiting the sale of liquor in certain cases, and the giving away of food to be eaten on the premises, took effect immediately, and is operative as to persons holding licenses under the old Excise Law.

HABEAS CORPUS.

Samuel Untermyer, for relator.

John F. McIntyre, for respondent.

BEEKMAN, J. The relator seeks to be discharged on habeas corpus from imprisonment under a commitment made by a city magistrate for a violation of subdivision "E" of section 31 of chapter 112 of the Laws of 1896, commonly called the Raines law, on the ground that he gave away food to be eaten on certain premises where liquor was sold. The relator has demurred to the return, and challenges the validity of the commitment on the

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ground that the section in question, at the time of the alleged offense, was not operative in respect to persons holding licenses under the old Excise Law, within which class it is admitted that the relator comes. If, therefore, the construction of the law for which he contends is sound, it must follow that the commitment is void, and that he should be discharged from arrest.

The act in question was, undoubtedly, intended to be a complete embodiment of the policy of the state in respect to the regulation of the liquor traffic, and to express all of the conditions which the legislature considered necessary or desirable by way of limitation in order to safeguard the public interests. The enactment rests for its validity upon the police power of the state which the courts of this state have sustained in its relation to this traffic, to the extent even of absolute prohibition. Wynehamer v. People, 13 N. Y. 378; Bertholf v. O'Reilly, 74 id. 509-20. Having the power to prohibit, the legislature may impose any conditions it sees fit upon its exercise, and is the sole judge of the reasonableness of any restriction which it may deem proper to impose. Whether, therefore, the prohibition against the giving away of food where liquor is sold is reasonable or not does not come within the field of judicial inquiry. The difficulty in determining whether this particular prohibition is operative in respect to the class of licensees to which the relator belongs grows out of what seem to be, upon their face, contradictory or inconsistent provisions of the statute. Section 31 provides as follows: "It shall not be lawful for any corporation, association, copartnership or person which, or who, has not paid a tax as provided in section 11 of this act, and obtained and posted the liquor-tax certificate, as provided in this act, to sell, offer or expose for sale, or give away liquors in any quantity whatever, any part of which is to be drunk on the premises of such vendor, or in any outbuilding, booth, yard or garden appertaining thereto or connected therewith. 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 E. To sell or expose for sale, or have on the premises where liquor is sold, any liquor which is adulterated with any deleterious drug, substance or liquid which is poisonous or injurious to health; or to give away any food to be eaten on such premises."

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Taking this section by itself, the meaning is perfectly plain. The traffic in liquor is absolutely prohibited to all persons who have

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not paid the tax and obtained the certificate for which section 11 provides; and even then certain restrictions are imposed, limiting the business in respect to time, place and manner, which are intended to be unconditioned in their operation. The prohibition is absolute in terms, and would have been sufficient without the assertion "whether having paid such tax or not," a phrase which was evidently employed to give special emphasis to the expression of a purpose that under no circumstances should the giving away of food be associated with the sale of liquor in the same place. As section 45 provides that this act shall take effect immediately, there would, of course, be no difficulty in holding that this prohibition was immediately operative, and had been violated by the relator, were it not for certain other provisions of the statute, which will presently be referred to.

In enacting a law which was intended to put into operation an entirely new system, the legislature was confronted with the fact that an enormous traffic in liquor existed in the state, authorized by licenses granted by commissioners of excise under the authority of and subject to restrictions and regulations contained in existing statutes. The new system demanded the appointment and qualification of a large number of new officers, and the organization of their work before the tax could be received and the certificate issued, which was essential to legalize the traffic. It was necessary, therefore, that the act should go into effect immediately, so far, at least, as the administrative portions of it were concerned. At the same time it was also evident that considerable time would have to elapse before the organization would be complete, and that unless some temporary provision should be made for the continuance of the traffic, the whole business would be abruptly suspended to the ruin of thousands engaged in it, and the inconvenience and privation of a large proportion of the people. Furthermore, justice demanded that a reasonable time should be afforded to those whose fortunes were embarked in the trade to prepare for the impending change in the conditions under which it could be conducted, and to take such steps as prudence might suggest to minimize inevitable loss. Under the influence, doubtless, of these considerations, the following provisions were inserted in the law:

By section 3 it is provided that from and after the 30th day of April, 1896, all boards of excise in the state are abolished, and that the rights, duties and powers of all boards of excise, and of all commissioners of excise, and of the clerks and all other emplovees shall

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cease and terminate from that date; also that no licenses to sell liquor should be granted, after the passage of the act, by any such board of excise to extend beyond the 30th day of April, 1896, and that the fee for such license to so expire shall be in proportion to the fee for one year. Section 4 provides as follows: "Every license heretofore lawfully granted by a board of excise which is valid when this act takes effect, shall be and remain valid for the term for which it was granted, except as herein provided, unless sooner canceled under the provisions of the law under which it was granted, and the rights and liabilities of the holder thereof during such term shall be governed by the laws in force immediately prior to the taking effect of this act, except as otherwise expressly provided in this act, but such license shall cease, determine and be void from and after the 30th day of June, 1896; and the tax herein provided to be assessed shall not be levied or collected upon the business of any corporation, association, copartnership or person holding an unexpired license until the time lawfully fixed for the expiration of such license, or its termination as herein provided unless such license be sooner canceled."

In a subsequent section the powers and duties of boards of excise in respect to the prosecution of violations of pre-existing laws and the transfer, surrender and revocation of licenses are vested in the special deputy commissioners to be appointed under the act for the period intervening between the 30th day of April, 1896, when such boards are abolished, and the 30th day of June, 1896, when all licenses are terminated.

The prohibition, therefore, which the first paragraph of section 31 contains, forbidding any traffic in liquor without previous payment of the tax for which the statute provides, is necessarily subject to these special provisions, which in continuing existing licenses and authorizing new ones to be issued up to the 30th day of April, 1896, sanction the traffic under the old system until the license has terminated as provided in the act. Until that time arrives, the holder of a license transacts the business which it authorizes pursuant to the laws in force at the time of the passage of the act in question, and "his rights and liabilities," in respect thereto, are governed by such laws. While the words "rights and liabilities" seem to express, in a general way, all the privileges which the licensee enjoyed, and every penalty to which he was subject, under those laws, the important qualification is added "except as otherwise expressly provided in this act."