by the inspectors and so indorsed; or whether the inspectors failed to count any protested ballots. In a matter of this importance, while I am impressed with the propriety of compelling these inspectors to properly perform their statutory duties and of reviewing their action, at least to the extent of determining whether they have complied with the law, yet a peremptory writ of mandamus should only issue on facts conceded or found, and I think the allegation of the alternative writ that these ballots should have been counted is an allegation of a legal conclusion, and that the writ fails to state the facts warranting the conclusion. If the court were to issue a peremptory writ on this alternative writ, for aught that appears the inspectors might be compelled to count void ballots which were properly declared void, indorsed as void, returned as void and accounted for in the return as void. On a demurrer to an alternative writ of mandamus resort can not be had to the petition or affidavits for the facts to sustain it. The alternative writ is a pleading and must stand or fall on the sufficiency of its own recitals of facts. Code Civ. Pro., § 2076; People v. Columbia Club, 20 Civ. Pro. Rep. 323. The demurrer must, therefore, be sustained.

For the purpose of determining whether the relator should have leave to amend, I have examined the petition and affidavits, and think they present a meritorious case. The demurrer is sustained, but with leave to the relators, within twenty days, and upon payment of costs, to amend the writ by citing a plain and concise statement of the facts set forth in the petition and affidavits on which the writ was issued, or to apply to the court for an inspection of the void and protested ballots, and for leave to serve an amended writ setting forth what is shown by such ballots, and upon other affidavits as they may be advised. An interlocutory judgment may be entered accordingly.

Judgment accordingly.

Supreme Court, New York Criminal Term, January, 1898. 23 Misc. 504.

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. BECKIE KURMINSKY, Defendant.

Liquor Tax Law-An indictment found under it may, on the application of the district attorney, be dismissed by the court, in furtherance of justice-Practice as to a nolle prosequi considered-Code of Criminal Procedure, § 671.

The power and right of a district attorney to apply, under section 671 of the Code of Criminal Procedure, to the court for the dismissal of an indictment, in furtherance of justice, is, in the case of an indictment found under the Liquor Tax Law (Laws of 1896, chap. 112), neither affected nor impaired by sections 37 (as amended by Laws of 1897, chap. 312) and 38 of that statute, making it the duty of a district attorney to prosecute any person violating the statute and further declaring that "any officer who shall neglect or refuse to perform his duty under its provisions shall be liable to a penalty of $500, and if a district attorney shall be removed from office." These sections do not, by implication, repeal section 671 of the Code of Criminal Procedure. Former and present practice, relative to the entry of a nolle prosequi, considered.

APPLICATION to dismiss an indictment.

Asa Bird Gardiner, district attorney, for People.

Mr. O'Haire, for defendant.

FURSMAN, J. This is an application to dismiss an indictment. The district attorney had indorsed upon the indictment the following statement: "Were this case to be the subject-matter of an official recommendation to the court, I should unhesitatingly affirm the impossibility of a conviction upon the merits, and request the court to make a final disposition thereof by the dismissal of this indictment." In In view, however, of the provisions of sections 37 and 38 of the Liquor Tax Law (Laws of 1896, chap. 112; amended 1897, chap. 312), he is in doubt whether such recommendation can properly and legally be made by him. He, therefore, submits that question to the court for determination.

At common law the attorney-general alone had power to enter a nolle prosequi. This he could do without application to the court. Indeed, the court itself could not, of its own motion,

direct the entry of this order. See People v. McLeod, 1 Hill, 377, at p. 405. In actual practice, however, it became customary for district attorneys, who were regarded as in some sense representing the attorney-general, to exercise this power. This very questionable practice led to the adoption of a provision in the Revised Statutes declaring it to be unlawful for any district attorney to enter a nolle prosequi upon any indictment, "or in any other way to abandon the same" without leave of the court. Edmonds' edition N. Y. Statutes at Large, vol. 2, p. 752 § 54. Even under this statute it was said that the court could not of its own motion enter a nolle prosequi. Thomason v. De Mott. 18 How. Pr. 529. There was always, however, inherent power in the court to set aside an indictment in a proper case, whether of its own motion, or on motion of the accused, or of the district attorney. People v. Brickner, 15 N. Y. Supp. 528; People v. Restenblatt, 1 Abb. Pr. 268; People v. Briggs, 60 How. Pr. 17; see page 42 and cases there cited. This was the history of the law concerning the rights and power of the court and the district attorney in relation to the disposition of indictments, otherwise than by trial, down to the adoption of the Code of Criminal Procedure. By section 671 of that act, authority is conferred upon the district attorney to apply for the dismissal of an indictment, and the court is empowered to act upon such application and to order such dismissal, or it may do so on its own motion. The precise question here is, whether there is anything in sections 37 and 38 of the Liquor Tax Law taking from the district attorney the right to make the application provided for by section 671 of the Code of Criminal Procedure. The power of the court to order such dismissal of its own motion cannot be questioned. There is nothing in the Liquor Tax Law prohibiting such action. Section 37 of that act makes it the duty of the district attorney to prosecute any person violating any of the provisions of the act (Amendment of 1897, § 37), and section 38 (Act of 1896) declares that "any officer who shall neglect or refuse to perform his duty under the provisions of this act shall be liable to a penalty of five hundred dollars, and if a district attorney, shall be removed

such officer be from office

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There are many statutes which impose specific duties upon district attorneys, and, although no special penalty is provided for a neglect or refusal to perform them, it has always been a

recognized rule that, where the law imposes a duty upon a public officer and he neglects or refuses to perform it, he may be indicted therefor (Bouvier's Law Dict., title "Negligence"), and of course in certain cases removed from office. Among the recognized duties of this officer is the prosecution of all offenders who are presented by indictment, and it is clear that a wilful neglect or refusal to discharge this duty in any proper case will subject him to indictment and expose him to removal from office; yet he has always had authority either to ask leave to enter a nolle prosequi (before the Code), or, since the Code, tʊ apply for a dismissal of any indictment. The State Constitution (art. 13), in relation to bribery declares (section 6) that "Any district attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of this article which may come to his knowledge, shall be removed from office by the Governor," but there can be no doubt, I think, that if, after indictment, it is found that there is an entire failure of proof, the district attorney may apply to the court for a dismissal under section 671, without exposing himself to the penalty thus prescribed for not "faithfully" prosecuting the person indicted. Section 38 of the Liquor Tax Law is highly penal and is, therefore, to be construed with great strictness. There is no provision of the act expressly repealing section 671 of the Code of Criminal Procedure, nor is there any conflict between them such as to create a repeal thereof by implication. The statute does not mean that the district attorney shall prosecute a hopeless case. The law never requires the performance of a vain thing. Suppose, after an indictment found under this law, the district attorney in commencing his preparation for trial discovers that every witness has since died and he is, therefore, without a particle of proof. Must he put the defendant upon trial, impanel a jury, open his case, and then declare that he is without the least proof to sustain the charge and leave the court to direct an acquittal? The legislature cannot have meant to require such a foolish thing. This is, of course, an extreme case, but it furnishes an illustration by which the intent of the legislature, as affecting section 671, may well be tested. This section (671) and the duties and penalties imposed by sections 37 and 38 of the Liquor Tax Law are in harmony rather than in conflict. Thus considered, the requirement of section 37 is the performance by, the district attorney of the

duty of prosecution whenever there is fair reason to believe, from the evidence at command, or which by diligence may be obtained, that a conviction can be, or, if properly weighed, ought to be had; and the penalty imposed by section 38 is for a wilful or corrupt disregard of this duty, or, at most, a careless neglect to perform it. But where a diligent and honest investigation discloses an utter want of necessary proof, or if for any other reason in the intelligent and honest discharge of his duty the district attorney becomes satisfied that a conviction cannot be had, he may avail himself of the provisions of section 671, and recommend a dismissal without thereby exposing himself to any penalty whatever. It would, indeed, be monstrous to say that a district attorney will make himself liable to a fine and removal from office for suggesting to the court a state of facts and recommending a dismissal of an indictment thereon in a case where the court might, and indeed ought "in furtherance of justice" to direct a dismissal of its own motion, upon deriving the same information from any other source.

Ordered accordingly.

Third Appellate Department, January, 1898. Reported. 25 App. Div. 68. HENRY H. LYMAN, as State Excise Commissioner of the State of New York, Appellant, v. JOHN C. MCGRIEVEY, Respondent.

Liquor Tax Law-How, for its purposes, the population of a village is to be determined.

To determine the population of a village under the Liquor Tax Law (Chap. 112 of the Laws of 1896), except in the case "of the incorporation of a new city or village," either the last State or Federal census must be resorted to; a certificate made December 16, 1896, by the "Chief of Census Division, Department of the Interior" of the United States, "that the paper hereto attached is a statement as nearly correct as can be ascertained from the population schedules of the population, according to the census of 1890, of the towns and villages named therein," is not competent proof for the purposes of such Liquor Tax Law of the population of a village named therein.

APPEAL by the plaintiff, Henry H. Lyman, as State Excise Commissioner of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 4th day of October,