its operation, or because in the opinion of some or all of the citizens of the State it is not justified by public necessity or designed to promote the public welfare. We repeat, if it violates no constitutional provision it is valid and must be obeyed. The remedy for unjust or unwise legislation, not obnoxious to constitutional objections, is to be found in a change by the people of their representatives according to the methods provided by the Constitution."

Much of the argument against the validity of this law proceeds upon the assumption that it is fundamentally and radically a tax law. That being conceded, many of the contentions of the learned counsel for the relator might prevail. If the sole or the main purpose of the enactment is merely to raise revenue by taxation for State purposes, there are features contained in this bill of inequality and diversity in the imposition of taxes and the infliction of penalties that might well lead to its complete condemnation. Although there is no express provision in the Constitution of the State of New York to that effect, yet it may be that taxes to be valid must be uniform; that were it otherwise, the property of the citizen subjected to the arbitrary imposition of a discriminating tax might be practically confiscated and. therefore, taken without due process of law, or persons of the same class might be deprived of the equal protection of the laws secured by the Constitution of the United States. The power of the State to tax may be limitless in extent, but ought not to be exercised, among those similarly situated, unequally and to the advantage of some and the detriment of others. But these and kindred suggestions seem to have no real place in the discussion connected with the particular enactment now before us. ALthough by its short title it is called "The Liquor Tax Law," and although it designates the money paid for the privilege of dea! ing or trading in liquors in quantities of less than five gallons a tax, yet the whole scope, purpose and intent of the law is, as its fuller title expresses, "An act in relation to the traffic in liquors and for the taxation and regulation of the same and to provide for local option." The body of the act conforms to the objects stated in the title. A system regulating the traffic in and through the State is created and instituted. It is primarily and essentially an exercise of the police power of the State over a particular trade or business which from early times has been made the subject of State legislation, the general history and

drift of which may be found, by those interested in the matter, in the opinion of Judge WRIGHT in the important case of The Metropolitan Board of Excise v. Barrie (34 N. Y. 657). That such excise legislation is peculiarly within the police power is recognized by all courts of authority and it would seem no longer open to dispute. (See the authorities collected in note, 11 Am & Eng. Ency. of Law, 583.)

The fourteenth amendment to the Constitution of the United States does not impair the police power of the State. (Mugler v Kansas, 123 U. S. 623; Powell v. Pennsylvania, 127 id. 678; Bar bier v. Connolly, 113 id. 27.)

It is within the competency of the State to interdict all traffic in liquors within its boundaries. That is admitted. The Legislature having such an extreme power may exercise the lesser one of regulating the traffic. It may make such regulations and put such trammels upon the traffic as seem to be expedient or necessary to the safety, the welfare or the protection of the people. (Bertholf v. O'Reilly, supra.) In undertaking to do so by the enactment of a general law, which shall control the whole traffic in each and every part of the State, it may recognize local differences and needs, and make special provision therefor If diversity arises therefrom in the application to particular localities of any of the incidents of the law, the Legislature is not incompetent to authorize that diversity. It is part of the general scheme. It arises from the necessity of treating local conditions and situations as they are found, and from the recognition of patent facts, such as that there are striking differences between the retail traffic in liquor in a great metropolis and in a remote rural neighborhood, or even in separate parts of the same municipality, and that disproportion must of necessity be allowed in the impost exacted for the privilege of engaging in such traffic in each of such places. All such provisions come within the one general act as parts of one general excise system and the regula tion thereof.

That the purpose of the act is not primarily to raise revenue from taxation is apparent from other considerations. Leaving out of the discussion altogether the pertinent question whether such taxes as those imposed by the act under consideration are in reality anything more than license fees, and confining ourselves to what is deducible from the structure and provisions of the act itself, we find that a third and conspicuous and all-important

matter is provided for, and that is the local option feature, which plays so prominent a part in the legislation that it is made one of the cardinal elements proclaimed in the title of the act. The system created and established by this act is by the express terms thereof made to supersede and take the place of all prior existing excise laws or systems throughout the whole State. It establishes an entirely new system, bringing under State control that which was theretofore under local, municipal or community jurisdictions and administrations. The right to traffic in liquor is not limited to individuals, except so far as certain disqualifications are designated in the act; but no one is permitted to sell at retail or deal in liquor in less than certain quantities without State permission first obtained, to be evidenced by the possession of a certificate which takes the place of a license, and for which dues called taxes are to be paid. Taxation is but an incident, but one and that not the chief, although a necessary element of the legislation. Regulation of the traffic is the fundamental purpose of the law. The taxes are not levied upon persons nor upon property, for a license is not property except in a qualified sense, and as it is made so by the terms or operation of a statute, and the taxes are, and are declared to be, "excise taxes upon the business of trafficking in liquors," and hence a mere incident to the regulation of that business. It is all within the police power of the State, exercised for the supposed general welfare, and the power to regulate must of necessity include the power to license or tax. Nor does the want of uniformity of punishment for the violation of the penal provisions of the act render it unconstitu tional. The same offense, punishable under a general law, may be so punished with more severity in one part of the State than in another. (Williams v. The People, 24 N. Y. 405; Matter of Bayard. 25 Hun, 546), and that may constitute a penal offense in one part of the State that is not punishable in another. (People v. Havnor, 1 App. Div. 459; affd., 149 N. Y. 196.)

Regarding, as we do, this act as one constituting inherently and essentially an exercise of the police power of the State, we are brought to the consideration of the particular objections taken to it as violating the provisions of the Constitution of the State of New York.

First. The position is taken by the relator that the law is unconstitutional, because it violates section 20 of article 3 of the Constitution of the State, which provides that the assent of two

thirds of the members elected to both branches of the Legislature shall be requisite to every bill appropriating the public moneys o property for local or private purposes. The act of 1896 was passed by a three-fifths vote only.

In section 13 of the act it is provided that all taxes, fines and penalties (except those imposed upon or gathered from the traffic in liquors on railroad cars, steamboats, etc.), under the act "in counties containing a city of the first class shall be collected by and paid to the special deputy com missioner for such county, and in all other counties to the county treasurer of the county in which the traffic is carried on," and "one-third of the revenue resulting from taxes, fines and penalties under the provisions of this act, less the amount allowed for collecting the same, shall be paid by the county treasurer, and by the seceral special deputy commissioners, within ten days from the receipt thereof, to the treasurer of the State of New York, to the credit of the general fund, as a part of the general tax revenue of the State, and shall be appropriated to the payment of the current general expenses of the State, and the remaining two-thirds thereof, less the amount allowed for collecting the same, shall belong to the town or city in which the traffic was carried on from which the revenues were received, and shall be paid by the county treasurer of such county and by the special deputy commissioners to the supervisor of such town, or to the treasurer or fiscal officer of such city, and such revenues shall be appropriated and expended by such town or city in such manner as is now, or may hereafter be, provided by law." The real question in connection with this contention of the relator is, whether the two-thirds of the product mentioned above is public money within the meaning of the Constitution. We think clearly it is not. The public moneys and property therein mentioned and referred to are those belonging to the State. Prohibited appropriation is of such moneys only. In The Board of Supervisors v. Allen (99 N. Y. 532) it was claimed that chapter 213 of the Laws of 1879, relating to certain county treasurers and their compensation, was unconstitutional, because it appropriated public moneys for local purposes; but it was held that the act did not apply, because the appropriation was not of State moneys. The accuracy of the definition of "public money," as that belonging to the State, can scarcely be doubted. It seems to us indisputable that the two-thirds of the

net proceeds of the taxes, fines and penalties referred to in the 13th section of the act under consideration cannot be regarded in any sense as State moneys. They are not so designated in the act. On the contrary, they are expressly and specifically declared to "belong to the town or city in which the traffic was carried on." The anterior rights of localities as theretofore existing were done away with. The act, with regard to the two-thirds of the revenue, simply recognizes that there were such rights, and professes to provide anew for them with some measure of justice. It thus declares that some part, at least, of that which the localities had been accustomed to receive directly, shall come to them and be theirs. That is not an appropriation of the moneys of the State, but a devotion to the component parts of the State of what was esteemed to be their just shares of the product of a particular revenue. At no period of time do the two-thirds be long to the State. From the beginning they are separated, and the State share and the share of the town or city are kept apart in ownership. There seemed to have been scrupulous care taken in constituting and maintaining that separate ownership. The two-thirds part does not become money of the State simply be cause the State's agent collects it through, and by means of, the State machinery. The mere method of the collection or realization of the amounts of the taxes, fines and penalties cannot govern the matter, and, hence, we conclude that the two-thirds referred to, not being State money, the constitutional provision does not apply.

Second. It is further objected by the relator that the act under consideration classifies cities in a different way than the Constitution does, and that for that reason it violates section 2 of article 12 of the Constitution. This objection proceeds, we think, upon a misapprehension of the object of that section. The circumstances which led up to the adoption of it are weil known. It had not been unusual for laws to be passed seriously affecting the local interests and property of cities without notice to the authorities of such cities, and without any opportunity for them or the inhabitants to be heard upon the subject. That had grown to be a great crying evil, and the provision of the Con stitution was intended to remedy it. But it must be noticed that the classification has reference only to laws relating to the property, affairs or government of cities, and it is only with reference to that kind of laws that the classification is effectual