this review is the construction which shall be given to certain provisions of subdivision 2 of section 24 of the Liquor Tax Law. This section, so far as its language is of any importance in this connection, reads as follows:

§ 24. Traffic in liquors shall not be permitted:

a

within two hundred feet of a building occupied

*

provided,

exclusively as church or schoolhouse; however that this prohibition shall not apply to a place which on the twenty-third day of March, eighteen hundred and ninetysix, was lawfully occupied for a hotel, nor to a place in which such traffic in liquors was actually, lawfully carried on at that date.

While it is conceded that the relator's place of business is within two hundred feet of a building occupied exclusively as a church, it is nevertheless contended that he brings himself within the exception to the section just quoted by reason of the fact that the business of trafficking in liquors was lawfully carried on upon the same premises at the time the Liquor Tax Law went into operation; and the fact stated being true, such contention must prevail, unless the privilege granted by the exemption clause was lost in consequence of the abandonment of the business at this particular place for the period of two months subsequent to the time specified in the statute.

This statute was doubtless enacted under the police power of the State, and while its language should receive a just and reasonable construction, the object and intent of its enactment should not be lost sight of. The main object which the legislature had in view was, of course, to confine the traffic in liquors within certain limits and to surround it with well-defined restrictions. One of these restrictions is that the church or the school shall not be brought into too close proximity to the saloon; hence the limitation of two hundred feet. But while endeavoring to protect the church and school from the demoralizing influence of the saloon, the legislature was at the same time careful to recognize the fact that dealers in liquor might have certain vested rights which ought not to be interfered with, and, therefore, it enacted that where at the time the law went into effect a party was lawfully engaged in the sale of liquors at any particular place, such traffic might be continued at that place, although it was within the prohibitory terms of the statute.

This exception was manifestly designed to protect parties who, under the sanction of former statutes, had incurred the trouble and expense of buying, renting or fitting up places in which to conduct the saloon business.

A provision similar to the one which we are now considering was contained in the act of 1892 (Chap. 401), as amended by chapter 480 of the Laws of 1893. It is claimed, however, that under that act the privilege was personal in its character, while under the present law it is one which is impressed upon the place, and not the individual.

This distinction seems to us somewhat forced, but whatever merit there is in it, it must be admitted that the concession, whether it be to the person or to the place, is one which is clearly an exception to the general policy of the law, and consequently it is one which should receive a strict interpretation. In a recent case it was said to be "a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers." (Riggs v. Palmer, 115 N. Y. 506, 509.)

And we have the very best authority for declaring that when the intention of the lawmakers is once ascertained, it becomes the duty of judges to give such a construction as shall repress the mischief and advance the remedy aimed at. (I Kent, 465.)

Applying then the rule thus stated to the present case, it becomes our obvious duty to so construe the exceptional provision under consideration as that it shall conform if possible, to the general design and policy of the statute as a whole. We have stated what that policy is, and we think it only remains to show how easily it may be thwarted in order to demonstrate the fallacy of the relator's contention; for if an abandonment of the traffic in liquors at a particular place for the period of two months does not work a forfeiture of the privilege conferred by the statute, then an abandonment for a much longer period of time would not have that effect; and with the rule contended for once established, there would apparently be no limitation of time within which a party might claim the privilege of selling liquors at some particular place, provided he could show that somebody else was lawfully engaged in the same business at the same place on the 23d day of March, 1896. Certainly the

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 payment, 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:

"§ 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:

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*

"§ 484. Judgment to pay fine 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