(flnrnpll IGaiu ^rljnnl ICibrary Cornell University Library KFN5635.A3 1896 The liquor tax law of 1896 :The excise a 3 1924 022 789 485 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022789485 THE LIQUOR TAX LAW OF 1 896. THE EXCISE AND HOTEL LAWS OP THE STATE OF NEW YORK, AS AMENDED TO THE LEGISLATIVE SESSION OF 1897, CONTAINING THE LIQUOR TAX LAW OFISB^ ; THE PUBLIC OFFICERS LAW; PROVISIONS OF THE PENAL CODE AND CODE OF CRIMINAL PROCEDURE AP- PLICABLE TO VIOLA TIONS OF THE LIQ UORTAX LA W; UNITED STATES STATUTES AND REGULATIONS RELATING TO THE PAYME ST OF TAXES BY Liquor DEALERS; AND STATUTES RELATING TO RIGHTS, LIABILITIES AND DUTIES OF HOTEL-KEEPERS. WITH COMPLETE NOTES, AMOTATIONS AND FORMS BY ROBERT C. GUMMING AND FRANK B. GILBERT, Attobmeys op the Albany Bar and Assistants to the Comhissioners OF Statutory Revision. MATTHEW BENDER, Law Bookskllee and Pubusheb, 511-513 Broadway, Albany, N. Y. 1896. f^r.R^O^ Entered according to act of Coagreas, in the year eighteen hundred and ninety-six, Bt MATTHEW BENDER, In the ofiBce of the Librarian of Congress at WaahlDgton, D. C. PREFACE The Legislature and the courts of this State, as ia every other State, have always taken notice of the fact that the excessive use of certain liquors produces intoxication, and that under intoxication men are addicted to immorality, mischief and crime. Hence as a part of its police system, the State has imposed restraint and limitation upon the business of the liquor seller. ; Laws enacted for such purposes are not for determining what the people shall drink, but rather to so regulate and restrain the sale of an article, which, under certain circum- stances, produces evil results, as to minimize the evil and place upon the seller such liabilities as the nature of his business will warrant. The traffic in liquors since the foundation of our State government has been regulated and restricted. Previous to the enactment of the present so-called Liquor Tax Law, the theory of excise statutes was to localize the regulation of the traffic and place upon the municipality the sole responsibility of a proper enforcement of such statutes. The amount to be charged for the privilege of engaging in the liquor traffic was, in a measure, determined by the local authorities; the amount collected was expended for the benefit of the locality, and the violations of the excise regulations were prosecuted by such authorities. The Liquor Tax Law of 1896 is an innovation. The former license fee is now called a tax. Any person, not disquali- fied by the act, can engage in the traffic in liquors upon payment of such tax. The theory of former laws as to the application of excise moneys and local supervision of the traffic is, to some extent, recognized and adopted by providing that two-thirds of the tax collected should be paid to the municipality in which the traffic is conducted, and that county treasurers should iv PfiBrACE. issue the tax certificates and local officers enforce the pro- visions of the law. But over all, is now existing a State supervision and control; in the hands of the State Department of Excise is now placed the primary responsibility of the enforcement of statutes regulating this traflac. This is an experiment which may or may not prove successful. Time alone will inform as to the expediency of this new departure. This new law repeals all previous laws regulating the selling of intoxicants. All of its provisions relating to the administration of excise matters are new. Several of the provisions contained therein, relating directly to the regula- tion of the traffic, were contained in the old laws. The restraints upon the sale of liquors included in the previous laws are retained. Illegal sales under the old law are illegal now. Of course, many of the cases reported under the old laws are not now applicable; but a great number can still be applied, and particularly those determining what sales were or were not legal. We have carefully examined those cases and placed them as annotations to the pr >per sections. In our notes at the ends of the sections, we have attempted to refer to the sections of former laws containing like pro- visions. These will be found of use in applying the decisions of the courts under the old law. We have collated a number of the decisions of the courts of other States, in reference to provisions of the law, which are new in this State, but have existed in the statutes of such other States. We have retained the part of the first edition of this work relating to the rights, duties and liabilities of hotel- keepers, adding a few recent decisions upon questions of interest. In view of the many important changes made by the enactment of this measure, we think we are justified in submitting a new edition of a work so recently published. Ajpril 1, 1896. R. C. C. F. B. G. TABLE OF CONTENTS. CHAPTEK I. p^g^. The Statutory Construction Law 1 CHAPTER II. The Liquor Tax Law 13 Governor's memorandum 13 Section 1. Short title 21 2. Definitions , 24 3. Abolition of boards of excise, and their powers and duties 27 4. The continuance of licenses 28 5. The duties of existing boards of excise 30 6. State commissioner of excise 31 7. Office of state commissioner 32 8. Deputy commissioner; secretary, clerks 32 9. Special deputy commissioner in certain counties. . 33 10. Special agents; attorneys 33 11. Excise taxes upon the business of trafficking in liquors 36 12. Tax, when due and payable : 46 13. Officers to whom the tax is to be paid and how distributed . ; 46 14. Compensation of county treasurers 48 15. Books and blanks to be furnished by state com- missioner of excise 48 16. Local option to determine whether liquor shall be sold under the provisions of this act 50 17. Statements to be made upon application for liquor tax certificate 55 18. Bonds to be given 57 19. The payment of the tax and issuing of the tax certificate 59 20. Form of liquor tax certificate 61 21. Posting liquor tax certificate 64 22. Restrictions on the traffic in liquors in connection with other business , 64 vi Table of Contents. PASE. Section 23. Persons who shall not traffic in liquors and persons to whom a liquor tax certificate shall not be granted 65 24. Places in which traffic in liquor shall not be per- mitted 65 25. Surrender and cancellation of liquor tax certifi- cates 69 26. Changing place of traffic 70 27. Voluntary sale of liquor tax certificate 71 28. Certiorari upon refusal to issue or transfer liquor tax certificates; revocation and cancellation of liquor tax certificates 72 29. Injunction for selling without liquor tax certi- ficate 7S 30. Persons to whom liquor shall not be sold or given, 79 31 . Other illegal sales and selling 83 32. Sales and pledges; when void 98 33. Persons liable for violation of this act 99 34. Penalties for violations of this act 100 35. Jurisdiction of courts 103 36. Collection of fines and penalties and forfeiture of bonds 104 37. Duties of public officers, in relation to complaints and prosecutions under this act lOS 38. Penalties for neglect of public officers to PiCrform their duty under this act 107 39. Eecovery of damages in a civil action 107 40. Intoxication in a public plafce 112 41. Employment of persons addicted to intoxication by common carriers 113 42. Violations of this act generally 113 43. Distribution of copies of this act by the secretary of state 114 44. Laws repealed; saving clause 114 45. When to take effect 115 CHAPTER III. Miscellaneous Laws Regulating the Traffic and Use of Intoxicants. Section 1. Adulterations of wines, liquors, ales and beer 116 2. Receptacles for liquors, wines and beer 123 3. Pawns or pledges for liquor sold to Indians 129 4. The study of effect of alcoholic drinks in public schools 130 Tablk of Contents. vii CHAPTER IV. p^og The Public Officers Law 132 CHAPTER V. Code Provisions. Section 1. Penal Code provisions relative to (1) Intoxication; (2) Children in saloons; (3) Disorderly places; (4) Miscellaneous offenses 149 2. Code of Criminal Procedure, provisions relative to Jurisdiction of the courts as to violations of the Excise Laws and practice therein 154 CHAPTER VI. TTnited States Statutes and Regulations Relating to Wholesale and Retail Liquor Dealers. Section 1. Provisions applicable to special taxes upon whole- sale and retail liquor dealers 178 2. Instructions to special taxpayers 184 5. Regulations concerning the tax on distilled spirits applicable to wholesale and retail liquor dealers, 186 CHAPTER VII. Rights, Duties and Liabilities of Innkeepers. Section 1. Common-law duties and liabilities 191 2. Statutory limitations of liabilities 198 3. Liens of innkeepers and boarding-house keepers. . . . 201 4. Fire-escapes in hotels 203 5.^ Discrimination on account of race, creed or color.. 205 6. Report to public administrator of deaths occurring in New York city hotels and boarding-houses 206 7. Provisions of Penal Code relating to innkeepers... 207 CHAPTER VIII. Forms 209 THE Excise and Hotel Laws OP THE State of New York. CHAPTER I. THE STATUTORY CONSTRUCTION LAW, AS AMENDED TO THE COMMENCEMENT OF THE LEGISLATIVE- SESSION OF 1896. [Note.— We here insert the Statutory Construction Law upon the theory that the aid which the legislature has provided in the construing and interpreting of statutes is properly a part of a work which has for its foundation legislative enactments. Our' excise laws are purely statutory; all matters pertaining thereto are regulated by stat- ute, and, therefore, assistance in the construction of such statutes must be of value.] Laws 1892, chap. 677 — An act relating to the construc- tion of statutes, constituting chapter one of the gen- eral laws. [Became a law May 18, 1893, taking effect immediately.] CHAPTEE I OF THE GENERAL LAWS. The Statutokt Consteuction Law. Section 1. Short title; extent of application. 3. Property. 3. Real property. 4. Personal property. 5. Person. 6. Judge. 7. Lunacy; idiocy. 8. Gender; number; tense. 9. Heretofore; hereafter; now. Excise and Hotel Laws The Statutory Construction Law. §§ 1-3 Section 10. Last; preceding; next; following. 11. Folio. 13. Writing; signature. 13. Seal. 14. Oath; affidavit; swear. 15. Acknowledge; acknowledgment. 16. Bond; undertaking. 17. Choose; elect; appoint. 18. Board composed of one person. 19. Meeting; quorum; powers of majority. 20. Service of notice upon board or body. 31. County clerk; register. 33. Village. 23. State. 24. Public holiday; half-holiday. 25. Year. 36. Month. 27. Day; mode of computing days; night-time. 28. Standard time. 29. Civil and criminal codes. 30. Laws of England and of the colony of New York. 31. Limiting the effect of repealing statutes. 32. Effect of repeal and re-enactment. 33. Effect of revision upon laws passed at same session or before revision takes effect. 34. Alterations of titles and headnotes. 35. Laws repealed. 86. Time of taking effect. tThus am. by Laws 1894, chap. 448. See § 84 hereof.] Section 1. Short title ; extent of application. — This chapter shall be known as the Statutory Construction Law, and is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter. [See note to § 31 hereof, and note in 39 Abb. N. C. 146.] § 2. Property. — The term property includes real and per- sonal property. § 3. Real property.— The term real property includes real estate, lands, tenements and hereditaments, corporeal and incorporeal. OF THE State of New York. §§ 4-9 The Statutory Construction Law. § 4. Personal property. — The term personal property includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, trans- ferred, discharged or defeated, wholly or in part, and every- thing, except real property, which may be the subject of ownership. The term chattels includes goods and chattels. § 0. Person. — The term person includes a corporation and a joint-stock association. When used to designate a party whose property may be the subject of any oflEense, the term person also includes the state, or any other state, government or country which may lawfully own property in the state. § 6. Judge. — The term judge includes every judicial officer authorized, alone or with others, to hold or preside over a court of record. § 7. Lunacy ; idiocy. — The terms lunatic and luna,cy include every kind of unsoundness of mind except idiocy. [B'or definition of insanity as a defense to crime, see Penal Code, §§ 20- 23.] § 8. Gender ; number ; tense. — "Words of the masculine y Lams 1894, chap. 448, taking effect May 3, 1894.] [As to the continuous character of revision with repeal and re-enact- ment, see Matter of Prime, 136 N. Y. 347; People ex rel. Ulrich v. Bell, 24 N. T. St. Repr. 114.] § 33. Effect of revision upon laws passed at same session or before f evision takes effect. — No provision of any chapter of the revision of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect ; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect, shall not be deemed repealed, unless specifically designated in the repealing schedule of such chapter. § 34. Alterations of titles and headnotes. — If the title of any article or other division of a statute, or the headnote of a section shall be amended or repealed in the body of the statute, or if a new article or other division having a title, or a new section having a new headnote be added to a statute, the corresponding title or headnote, if any, in an abstract of contents at the beginning of the article or other division of the statute shall be deemed to be correspondingly amended or repealed, although there be no express reference thereto. § 35. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed. § 36. Time of taking effect. — This chapter shall take effect immediately. Sections repealed. Kevised Statutes, part I, chapter 8, title 8 . . 16. Kevised Statutes, part I, chapter 19, title 1 . . 1, 2, 3, 4, 5. Kevised Statutes, part II, chapter 4, title 2. . 3. Kevised Statutes, part II, chapter 4, title 3 . . 9. Kevised Statutes, part III, chapter 8, title 17. .27. Kevised Statutes, part III, chapter 10, title 4.. 4. 12 Excise and Hotel Laws. The Statutory Construction Law. § 36 Sections repealed. Revised Statutes, part IV, chapter 2, title 8 . .16. Laws 1828, second meeting, 51st session, chap- ter 20 9, 10, 11. Laws 1828, second meeting, 51st session, chap- ter 21 3 and 4. Laws 185Y, chapter 536 3. Laws 1874, chapter 321 All. Laws 1877, chapter 466 27. Laws 1884, chapter 14. . .• All. Laws 1886, chapter 21 20. Code of Civil Procedure 29, 788, 960 and sub- divisions 6, 7, 8, 15, 17, 21, 22, 23 and 24 of sec t i o n 3343. Code of Criminal Procedure 955, 956, 957. Penal Code 261, 500 and sub- divisions 9, 10, 11, 12, 13, 14 and 15 of sec- tion 718. OHAPTEE IL THE LIQUOR TAX LAW. [In connection with the text of this law, which follows, It ha& seemed proper to here insert the memoirandum of Governor Mor- ton, filed with the law in the office of the secretary of state. It contains many suggestions which will prove valuable, especially in regard to the question which will probably arise, as to the- jurisdiction of the governor to act upon the bill, since it was not submitted to the various cities for their acceptance.] Governor's Memorandum. In considering this bill, tlie first question that demands attention is one of jurisdiction. Objection is made that the bill is not now properly under executive consideration for the reason that it "has not been submitted to various cities for their acceptance. It is urged that the bill is a " special city bill " within the meaning of section 2 of article 12 of the Constitution,, and that executive jurisdiction can only be acquired after its transmission to the cities affected and their action thereon. It seems quite apparent that the bill is general in the sense that it applies to all parts of the State-. Every town, village, city and county is affected by it, and it is intended to be a general and complete schemc>- upon the subject of the regulation of the liquor traffic. It is also, I think, general within the meaning of the- Constitution, because it relates to all the cities of each class. The Constitution expressly says that " special city laws are those which relate to a single city, or to less than all the cities of a class." The amount of tax imposed upon the liquor traffic varies in different cities, and the amount of revenues which cities may derive from the liquor traffic also varies, but the ratio of distribution of the liquor tax is uniform. The tax, however, is assessed upon the individual, and the city has no interest in it until it is paid to the county treasurer or other proper officer. The lack of uniformity in the provisions of a bill intended to be general does not make it a special city bilB 14 Excise and Hotel Laws Governor's Memcrandum. within the meaning of the Constitution, unless it contains provisions relating specifically to a particular city. In fixing the rates of taxation, the Legislature might have adopted the classification of cities prescribed by the Con- stitution, but it chose to create an artificial classification, which has had the effect of making a different rate of taxation in cities belonging to the same constitutional class. Such artificial classification is not objectionable, and does not alone render the bill subject to action by the cities. It should also be observed that this bill is not to be construed as if it named all the cities of the State and prescribed the tax to be imposed upon the liquor traflic carried on in each of them. The bill evidently contem- plates a continuous, elastic and changeable scheme of taxation, varying from time to time according to popu- lation, so that after an enumeration of inhabitants as prescribed by the Constitution, a new classification of <3ities and villages for the purposes of this tax will be made, and cities and villages in which, under present conditions, a given rate is imposed, will be placed in another class, and the rate of taxation will be higher or lower, according as the population is shown to have in- creased or diminished. Other cities and villages will also probably be incorporated and must be classified according to their -population. It will hardly be claimed that, after each enumeration and consequent new classification, the cities would have the right to again express their approval or disapproval of the amount of tax to be imposed therein. A bill evidently intended to be general and to apply to all the people of the State, and possessing the qualities of perpetuity and elasticity above mentioned is not, I think, a special city bill, although its effect may not be uniform in all cities. I think that this bill is now properly under executive consideration, and that my jurisdiction to act upon it is complete and undeniable. In my annual message to the Legislature, at the opening ■of the present session, it was suggested that the question OF THE State of New York. 15 Governor's Memoiandum. of regulating tlie sale of intoxicants would be under con- sideration, and I took occasion to recommend " such legis- lation as will measurably reduce the number of places in which intoxicating beverages shall be sold throughout the State." Attention was called to statistics showing that there is a larger number of saloons in this State, in propor- tion to population, than in any other whose statistics are available, New York having a retail licensed drinking place for every 150 inhabitants, while the number of saloons in the United States, including the prohibition States, is one to each 278 of the population; and a recommendation was made that the " Legislature endeavor to formulate a law which shall, so far as practicable, embody the best features of the liquor laws now in successful operation in various States, with a consistent aim toward the reduction of the number of saloons in this State." The bill now under consideration is a result of the delib- erations of the Legislature upon this subject and the sug- gestions of many persons interested in it, and while it is not free from objection in some of its details, I have no hesitation in commending the measure as a whole. It marks the beginning of a new era in legislation in this State regulating the liquor traffic. It is a radical departure from the traditional policy of the State, which has heretofore considered the regulation and sale of intoxicating liquors matters of purely local jurisdiction. The subject has been imder the general supervision and control of local officers chosen by the municipalities, except that for a few years during the early history of the State, the commissioner of excise for the city of ISTew York was appointed by the Governor. This bill changes the entire scheme; abolishes all local boards having jurisdiction to issue licenses for the sale of liquor, and places the whole subject under State supervision. Whether this is wise or not, experience only can demonstrate, but it is an experiment worth trying, and I believe that if the design of this bill is fairly worked out by competent and faithful officers, it will produce a result so beneficial that our people will not be likely to wish to resume the system of local supervision with which 16 Excise and Hotel Laws Governor's Memorandum. we are so familiar, and wMch, in many respects, is so un- satisfactory. From Magna Charta until now, English-speaking people have had almost constant occasion for legislation regulating the sale and use of intoxicating liquors. Various experi- ments have been tried with more or less success, and our own State is no exception to the halting and fluctuating efforts that have been made to suppress intemperance. The evils resulting from the trafiic are universally admitted, and the power of the State to regulate or even prohibit it is not denied. The wisest statesmen and philanthropists have given the subject the most careful attention, but the problem is not yet solved. Absolute prohibition is prob- ably not attainable, and we can only hope for legislation embodying such reasonable regulations as may tend to re- press, so far as practicable, the inherent evils connected with the liquor traffic. This bill is an attempt to accom- plish this result, and, for the first time, the State assumes control of the subject. In doing this, the State is amply justified by the consideration that the effects of the use of intoxicating liquors are not local, but are widespread and far-reaching, and that the State itself is subjected to large expense in the creation and maintenance of institutions for the care of unfortunates who suffer directly or indirectly from the effects of the use of intoxicating liquors. Probably the most sanguine advocates of the present measure do not hope that all the evils of intemperance will be removed by it, but I think that it may reasonably be expected that the number of places where intoxicants may be purchased will be considerably reduced, especially iii the larger cities. In opposition to this measure, it is urged that it is not equal in its application, and will not be equal in its results throughout the State, but equality and exact appHcation in legislation of this character is hardly to be expected. A measure of this importance, which concerns, directly or in- du-ectly, more than 6,000,000 of people, differing widely m their tastes, education and experience, and in their social and mdustrial relations, can hardly be expected to exactly OF THE State of New Yoek. 17 Governor's Memorandum. fit every community and every interest, individual or ag- gregate, which may be affected by it. Only general lines of action can be indicated in such a law, and there must be an adjustment, so far as possible, to these general coii- ditions. It should be noted that, except in New York and Brook- lyn, where the tax is respectively $800 and $650, and in a few large villages, the tax imposed by this bill is no higher than the maximum license fees now allowed by law. The license fee in cities may now be fixed at not less than $30, nor more than $500; and in other places at not less than $30, nor more than $150. By this bill, the tax in Biiffalo and in all the cities of the second class, namely, Albany, Eochester, Syracuse and Troy, will be $500. In the other cities, except Hudson, the tax will be $350, as against a possible $500 under existing law. In Hudson, the tax will be $300. There are also a few large villages where the tax will be $350, several where it will be $300, and others where it will be $200. In the rural com- munities generally, the tax will be $100, as against a pos- sible $150, under the present law. The bill does not pro- vide for " high license," as that term is ordinarily under- stood, but fixes the tax at an average and moderate rate, although probably somewhat higher than the license fee now generally charged. The principle of local option in towns is retained, with the additional provision that if a town determines either for or against the sale of liquor by popular vote, that result can not be changed within two years. It may be desirable to extend the local option features of the law to cities, either as a whole or by wards. If the people of any city should desire an opportunity to vote upon this question, the Legislature will, doubtless, accord it that right, and public opinion may soon warrant a general amendment to the bill, providing for local option in all cities. On prin- ciple, there seems to be no reason why local option should not be applied to cities as well as to rural communities. The bill imposes severe penalties for the sale of liquor without the payment of a tax, and for a violation of the 3 18 Excise and Hotel Laws Governor's Memorandum. tax certificate, and it also contains stringent provisions con- cerning the persons by whom, and the places in which, liquor may be sold. It also contains a provision, new in our legislation, authorizing an injunction to restrain the sale of liquor without a certificate, and making the viola- tion of an order of the court a contempt. Two-thirds of the amount of each tax are to be paid to the municipality where the business is carried on. Objec- tion is made to the bill that all of the tax should be paid into the municipal treasury for local purposes, and that it is purely a matter of local legislation, but as already sug- gested, the State has an interest in the enforcement of the law, and has a right to some portion or even all of the tax to be imposed upon a business authorized by it. If the number of certificates issued under this law should equal the number of licenses now in force, the revenues of the municipalities, in most cases, would be very largely in- creased, because the tax is higher than the rate now gen- erally charged for a license. If allowance be made for a material reduction in the number of certificates, in conse- quence of the increase in the rate, this increase is so con- siderable in most cities that the revenue of the city would probably still be as large as, or even larger than under the existing conditions. The bill seeks to accomplish a complete revision of all the excise laws of the State, repealing existing statutes, but retaining most of their provisions, except as necessarily modified by the change of scheme for the granting of cer- tificates or licenses. Provisions of law upon this subject more than a century old which have proven salutary as well as necessary restraints upon the liquor traffic are con- tinued in force. It will not be practical here to enter into consideration of the details of the bill. It is plain, concise and compre- hensive, and vsdll, I think, easily establish its right to stand as a statute calculated to simplify, if not at once to settle, the vexed question of the regulation of the liquor traffic. It is entitled to a fair trial, and I am firmly convinced that many of the evils incident to the liquor traffic will be les- OF THE State of New York. 19 Governor's Mpmorandum. sened, tlioiigli perhaps not entirely eliminated, by this new measure. It has been suggested that the bill, in some of its features, especially in some of its administrative details, should be amended. Experience will probably suggest other amend- ments. This subject has received the thoughtful attention of reformers and legislators for centuries, and even with the aid of their experience and study, it is hardly to be expected that an ideal statute can be formulated at one stroke, involving such a marked change of policy as well as numerous changes in detail. By the passage of this act the Legislature has, I think, made a sincere effort to comply with the suggestion made in my last annual message, and has produced a measure which I confidently believe will be gratefully appreciated by all who think that further restraints should be imposed upon the liquor traffic. (Signed.) LEVI P. MOETON. Laws 1896, chap. 112. — An act in relation to the traffic in Hquors, and for the taxation and regulation of the same, and to provide for local option, constituting chapter twenty-nine of the general laws. [Became a law March 23, 11:30 a. m., 1896.] CHAPTER XXIX OF THE GENERAL LAWS. Thk Liquoe Tax Law. Section 1. Short title. ' 2. Definitions. . 3. Abolition of boards of excise, and their powers and duties. 4. The continuance of licenses. 5. The duties of existing boards of excise. 6. State commissioner of excise. 7. Office of state commissioner. 8. Deputy commissioner; secretaj^. clerks. 9. Special deputy commissioner in certain counties. 10. Special agents; attorneys. 11. Excise taxes upon the business of trafficking in liquors. 20 Excise aijd Hotel Laws The Liauor Tax Law. § 1 Section 12. Tax, when due and payable. 13. Officers to whom the tax is to be paid and how dis- tributed. 14. Compensation of county treasurers. 15. Books and blanks to be furnished by state commis- sioner of excise. 16. Local option to determine whether liquor shall be sold under the provisions of this act. 17. Statements to be made upon application for liquor tax certificate. 18. Bonds to be given. 19. The payment of the tax and Issuing of the tax cer- tificate. 20. Form of liquor tax certificate. 21. Posting liquor tax certificate. 22. Restrictions on the traffic In liquors In conneotion with other business. 23. Persons who shall not traffic in liquors and persons to whom a liquor tax certificate shall not be granted. 24. Places In which traffic in liquor shall not be per- mitted. 25. Surrender and cancellation of liquor taix certificates. 26. Changing place of traffia 27. Voluntary sale of liquor tax certificate. 28. Certiorari upon refusal to issue or transfer liquor tax certificates; revocation and cancellation of liquor tax certificates. 29. Injunction for selling withouit liquor tax certificate. 30. Persons to whom liquor shall not be sold or given. 31. Other illegal sales and selling. 32. Sales and pledges; when void. 33. Persons liable for violation of this act. 34. Penalties for violations of this act. 35. Jurisdiction of courts. 36. Collection of fines and pienaltles and forfeiture of bonds. 37. Duties of public officers, in relation to coonplalnts and prosecutions under this act. 38. Penalties for neglect of public officers to perform their duty under this aot 39. Recovery of damages in a civil action. 40. Intoxication in a public place. OF THE State of New Yoek. 21 I 1 The Liquor Tax Law. Section 41. Employment of persons addicted to intoxication by common carriers. 42. Violations of this act generally. 43. Distribution of copies of this act by the secretary of state. 44. Laws repealed; saving clause. 45. "When to take efCecL Section 1. Short title. — This chapter shall be known as the liquor tax law. [By this section this act is termed a " liquor tax law." It im- poses a tax on the business of " trafficking in liquors," and pro- hibits such trafficking without the payment of the tax. The payment of such tax authorizes the person paying It, upon receipt of a tax certificate therefor, to engage in the business of selling liquors. The engaging in such business without the receipt of Buoh tax certificate is a crime. By section 23 (post, p. ), there are specified persons who shall not in any case be entitl«d to receive a tax certificate. Not a tax law.— It is unimportant as affecting directly the validity of this law, to determine whether it is a tax law. In Ohio, the constitution prohibits the granting of Ucenses to traffic In intoxicating liquors, but recognizes the right to tax the business. In that state, a law which required any person engag- ing In the traffic in intoxicating liquors, to pay a specified sum of money, annually, and to execute a bond, with the further pro- vision that any person who should engage In such traffic with- out executing such bond, or after his bond was adjudged forfeited, should be deemed guilty of a misdemeanor, was held unconsti- tutional, as being in effect a license and not a tax. (State v. Hipp, 88 Ohio St. 199.) The Dow Law of Ohio, passed in 1886, is a tax law. A uniform tax of two hundred and fifty dollars is imposed upon the business of trafficking in spirituous liquors in all parfa of the staite, for each' place where such business is carried on by any person, corporation or copartnership. The law contains no provision restricting the right to engage in the business^ of traf- ficking in liquors upon the payment of the tax. Such payment is the only requisite. If the business is under no legal condemna- tion, if it is open to all, and the business itself is taxed, It can not then be regarded as providing a license, but levies a tax. A license is defined as a permission to do some act or engage In some occupation, which, without such permission, would be unlawful. 22 Excise and Hotel Laws The Liquor Tax Law. § 1 A license law assumes the illegality of a business and Imposes penalties upon a person engaging therein without obtaining the license provided by the law; it prescribes who shall and who sliall not engage in such business and fixes a certain moral or other standard of fitness. A tax law assumes that the business is a legal one, but imposes a burden for the public benefit upon those desiring to follow it. Any law, demanding the payment of a tax from those engaged in a business, that falls to recognize the legality of that business; that compels a person wishing to engage therein to pay a certain amount before so doing; that places upon the person, willing to pay the amount demanded, certain conditions before authority will be given him to engage in such business, and which punishes any person engaging in such business without such authority, Is primarily and necessarily a license law. To call this law a " liquor tax law " is a mis- nomer. The " liquor tax certificate " provided in this act is a license. A person holding such a certificate is licensed to sell liquors under the regulations prescribed In such law. This fact Is emphasized to show that the present law, like the law it repeals, is a license law, and that the court-made law under the old act relating to the rights of licensees, and their duties to the public, is still in force. This law differs from the old law, not in the regulation of the traffic In liquors, but In the manner of enforcing such regula- tions. By this act the power of administering excise affairs is diverted from the local authorities and oemtralized in a state commissioner, who Is assisted by deputy commissioners, special deputies in certain counties, special agents and attorneys to be appointed by him. Constitutionality.— It is a general principle of constitutional law that taxes shall be equal and uniform in their operation. If this law were a tax law it might be necessary in considering its provisions to apply this principle. But we have seen that it Is not to be regarded as a tax law but as a license law regulating' the traffic. The right of the state to regulate the traffic In Intoxicating liquors within its limits, has been exercised since the foundation of the government, and is not open to question. The state may prescribe the persons by whom amd the conditions under which the traffic may be carried on. It may impose upon those, who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic, and OF THE State of ISTew Yoek. 23 The Liquor Tax Law. individuals against injuries committed by intoxicated persons under the influence of or resulting from their intoxication. The licensee, by accepting a license and acquiring thereby a privilege from the state to engage in the traffic, a privilege confined to those who are licensees and withheld from all other citizens, takes it subject to such conditions as the legislature may attach to its exercise. He consents to be bound by the conditions when he acoep,ts the license, and the state is the sole judge of the reasonableness of the conditions imposed. Not only may the legis- lature regulate the traffic but it may also prohibit. (Metropolitan Board of Excise v. Barrie, 34 N. Y. 657.) Since the licensing of persons to sell liquor is not an exercise of the taxing power of the state to raise reveniue, but of the police power for the regulation and restriction of a dangerous business, it follows that the adjustment of the fees for licenses is not governed by the constitutional provisions requiring equality and uniformity of taxation. (Richland Co. v. Richland Centre, 59 Wi8. 591; S. C, 18 N. W. Rep. 497; Thomason v. State, 15 Ind. 449.) Laws regulating the sale of or trafficking in intoxicating liquors. If confined to such regulation, are not unconstitutional as depriv- ing individuals of their property without due process of law. Among the many cases which may be cited as establishing this principle are the following: Reynolds v. Geary, 26 Oonn. 179; Kettering v. Jacksonville, 50 111. 39; Thomason v. State, 15 Ind. 449; Bepley v. State, 4 Ind. 264; S. C, 58 Am. Dec. 628; Santo, v. State, 2 Iowa, 165; S. C, 63 Am. Dec. 487; State v. Gurney, 37 Me. 156; S. C, 58 Am. Dec. 782; State v. Strauss, 49 Md. 288; Com- monwealth V. Howe, 79 Mass. 26; Fisher v. McGirr, 67 Mass. 1; S. C, 61 Am. Dec. 381; People v. Gallagher, 4 Mich. 244; Miller v. State, 3 Ohio St. 485, 486; Lincoln v. Smith, 27 Vt. 328; License Cajses, 46 U. S. 504; Bartemeyer v. Iowa, 85 U. S. 129. Intoxicating liquor in its nature is dangerous to the morals, good order, health and safety of the people, and is not to be placed upon the same footing with the ordinary commodities of life. (State v. City Council, .20 S. E. 224; S. C, 42 So. Car. 222, citing Crowley v. Christensen, 137 U. S. 90, where the court says: " There is no inherent right in a citizen to sell intoxicating Uquora by retail. It is not a privilege of a citizen of a state, or of a citizen of the United States. As it is a business attended with danger to the comm-unity it may be entirely prohibited, or be permitted under such conditions as will limit, to the utmost, its evils. The manner and extent of regulation rest in the dlscre- 24 Excise and Hotel Laws The Liquor Tar Law. § 2 tion of the governing authorities. That authority may vest in such officers as it may deem proper, the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only.") In our own state the leading case as to the power of the legis- lature over the liquor traffic is Bertholf v. O'Reilly, 74 N. Y. 509, In which Judge Andrews writes an exhaustive opinion. As to whether or not the legislature has the right to prohibit absolutely the sale or disposal of intoxicating liquors already possessed, in view of the constitutional provision which forbids the state to deprive a pereon of life, liberty or property without due process of law, is an Interesting one, and while it may act be germane to a discussion of this law, it may be well to call attemtion to the expression used by Justice Field of the United States Supreme Court in the case of Bartemeyer v. Iowa, supra. He says: " I have no doubt of the power of the state to regulate the sale of intoxicating liquors, when such regulation does not amount to the destruction of the right of property in them. The right of property In an article involves the power to sell and dis- pose of such article as well as to use and enjoy it. Any act whlclf declares that the owner shall neither sell it, nor dispose of it, nor enjoy it, confiscates it, depriving him of his property without due process of law." An examination of these cases and of every ruling case In any appellate court in the United States, will confirm the conclusion that the right of the state to regulate the traffic in intoxicating liquors rests upon the assumption that the busine^ss is a dangerous one, which, unregulated and unrestricted, must injure the welfare of the people. Since the business is so recognized there is no vested right in any person to engage therein. The power to allow and regulate is in the discretion of the legislature. It is to determine in the first instance what measures are needful for the protection of the public morals, the public health or the public safety, subject to the power of the courts to decide whether any particular law is an invasion of the rights secured by the constitution. (Mugler v. Kansas, 123 U. S. 623; Kldd v. Pearson, 128 U. S. 1.)] § 2. Definitions. — The term " liquors," as used in this act, shall include and mean all distilled or rectified spirits, wine, fermented and malt liquors. A sale of liquor of less than five wine gallons shall be " trafiicking in liquors," OF THE State of New York. 25 § 2 The Liauor Tax Law. within the provisions of this act. An association within the meaning of this act is any combination of two or more persons not incorporated nor constituting a copartnership. [The provision in this section defining the term " liquorsi " ia new. In previous laws the words " strong or spirituous liquors, wine, ale or beer," are used wherever necessary in order to regu- late the traffic. The definition is here included, so that in other parts of the law a short term may be used which will signify all the different kinds of intoxicating liquors, the traffic in which is sought to be regulated. The definition here used is wide in its scope. It will include liquors of every kind containing alcohol and which can produce intoxication. There is nothing in this definition limiting its appli- cation to beverages. It might be held to include essences, tinctures and cordials, such as p,aregorlc, bay rum, cologne, essence of lemon and other articles of the toilet, or for culinary purposes. But the evident intent of the law being to regulate the sale of intoxicating liquors as beverages, it will probably be held that all such articles are without the statute, even if they contain alcohol in sufficient quantities to produce intoxication. (StaAe v. Hay- mond, 43 Am. Rep. Y87; S. 0., 20 W. Va. 18; State v. Muncey, 28 W. Va. 494.) In Kansas the statute defines intoxicating liquors as " all liquors and mixtures, by whatever name called, that will produce Intoxication." It was held not to embrace medicine and toilet articles not ordinarily used as beverages. The court said: "If the compound be such thart; the distinctive character and effect of intoxicating liquor are gone, that its use as an intoxicating beverage is practically impossible by reason of the other ingre- dients, it is not within the statute. The mere presence of the alooliol does not bring the article within the prohibition. The influence of the alcohol may be counteracted by the other ele- ments, and the compound be strictly and fairly only a medicine. On the other hand, if the intoxicating liquor remain as a dis- tinctive force in the compound, and such compound is reasonably liable to be used as an intoxicating beverage, it Is within the statute, and this, though it contain many other ingredients, and ingredients of an independent and beneficial force in counter- acting disease or strengthejilng the system." (See, also, in this connection, the following cases: Intoxicating Liquor Oases, 25 Kan. 751; S. O., 37 Am. Rep. 284; Oomm. v. Ramsdell, 130 Mass. 68; U. S. v. Stubblefield, 40 Fed. Rep. 454; Russell v. Sloan, 33 4 26 Excise and Hotel Laws The Liauor Tax Law. § 2 Vt 656; State v. Coulter, 40 Kans. 87; Oomm. v. Hallett, 103 Mass. 452; State v. Laffer, 38 Iowa, 422.) Medical preparations, such as blttere and tonics, which are in good faith made and sold for medical purposes and which are not intended for use as beverages under the guise of medicine axe not within the definition. (King v. State, 58 Miss. 737; Oomm. V. Bathrick, 60 Mass. 247; Comm. v. Sloajn, 58 Mass. 52; State v. Wray, 72 N. Car. 253; State v. Gray, 28 Ati. Rep. 675.) But If the distinctive character and effect of intoxicating liquors are preserved in such preparations and they can be used as intoxi- cating liquors, notwithstanding the medicinal ingredients, their sale woiuld not be lawful. (See cases above cited, and Wall v. State, 78 Ala. 417; Foster v. State, 36 Ark. 258; Kinnebeen v. State, 5 S. E. Rep. [Ga.] 56.) The courts in other states differ upon the question as to whether alcohol, in its piure state, is a spirituous or intoxicating liquor, the sale of which is regulated by statute. The courts invariably take judicial notice of the fact that alcohol is an Intoxicant. But It Is rarely used as a beverage and is adapted to many medicinal and mechanical uses. To determine whether it comes within the law, the characters of seller and purchaser should be consulted. (Snider v. State, 81 Ga. 753; State v. Martin, 34 Ark.. 340; Bennett V. People, 30 111. 889; State v. Witt, 39 Ark. 216; Winn v. State, 43 Ark. 151.) But section 11, subdivision 3 of this law provides that nothing in such subdivision relating to the business of traf- ficking In liquors by a licensed pharmacist, shall be construed as prohibiting the sale, without prescription, of alcohol to be used for medicinal, mechanical or chemical purposes. The word " spirits," when used alone and in the sense of the definition in this section. Includes all spirituous liquors — all liquors containing a percentage of alcohol. Distilled spirits would mean such liquors as are obtained by the process of distillation, such as whisky, brandy, rum, gin, etc. Rectified spirits are spirits in which have been placed ingre- dients of any description, to change the flavor or otherwise render them fit to be used as beverages. Fermented liquors are liquors which have undergone the process of fermentation and have thus become infused with a degree of alcohol or spirits. Hard cider is a fermented liquor and would be within the definition used in this section, but sweet cider would not be so Included. In the statutes of Michigan, where the definition of the term " Intoxicat- ing " mentions " fermented " liquor, it was held to include hard OF THE State of New Yoek. 27 § 3 The Liduor Tax Law. cidear, and tlie court took judicial notice of tlie fact that wlien the term " hard cider " was used by a witness that it meant fer- mented cider. (People v. Foster, 64 Mich. 715; 31 N. W. Eep. 596.) Malt liquors embrace porter, ale, beer and the like, which are the result or product of a process by which grain, usually barley, is steeped in water to the point of germination, the starch of the grain being thus converted into saccharine, which Is klln-dryed, then mixed with hops, and by a further process of brewing made into a beverage. (Allred v. State, 89 Ala. 112; 8 South. Rep. 56.) The Maine statute provides that " ale and all other malt liquors shall be construed intoxicatisng liquors within the meaning of this chapter." The court in the case of State v. Starr, 67 Me. 242, said that the term malt liquors is a general term " embracing several kinds of liquors; what liquors are embraced in it as well as the mode of their manufacture and the ingredients of which they are compiosed, is a question of fact for the jury and not of law for the court. In every case in which the question is involved it is competent for both parties to show by their evidence what a malt liquor is, how it is manufactured, and of what it is com- posed, and also to show whether the particular liquor in contro- versy is or is not a malt liquor, and the Jury must determine the Issue upon the evidence."] § 3. The abolition of boards of excise and their powers and duties. — From and after the tliirtietli day of April, eighteen hundred and ninety-six, all boards of excise in the state of New York are abolished, and the rights, duties and powers of all boards of excise and of all commissioners of e.xeise, iind of the clerks and all other employes, shall ceaso and terminate from that date. No license to sell liquor shall be granted after the passage of this act by any such board of excise, to extend beyond the thirtieth day of April, eighteen hundred and ninety-six. The fee for such license to so expire shall be in proportion to the fee for one year. [This Is a temporary provision relating to the excise boards in office at the time of the passage of the present law. The only powers to be exercised by such boaa-ds after such time, are the granting oi licenses to expire April 30th. As to the validity of licenses granted before such time, see the next section, with the note appended.] 28 Excise and Hotel Laws The Liquor Tax Law. I 4 § 4. The continuance of licenses. — Every license here- tofore lawfully granted by a board of excise, wbich is valid when this act takes effect, shall be, and remain, valid for the term for which it was granted, except as herein provided, imless sooner cancelled under the provisions of the law un- der which it was granted, and the rights and liabilities of the holder thereof duiing 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 thirtieth of June, eighteen hundred and ninety-six; and the tax herein provided to be assessed shall not be levied or collected upon the business of any corpora- tion, association, copartnership or person holding an unex- pired license, until the time lawfully fixed for the expiration of such license, or its termination as herein provided unless such license shall be sooner cancelled. When a license is terminated on the thirtieth day of June, eighteen hundred and ninety-six, as above provided, the holder of such license shall be entitled to receive and recover from the town or city in which such license was granted, such proportion of the whole license fee paid therefor, as the remainder of the time for which such license would otherwise have run, shall bear to the whole period for which it was granted, and the same shall be paid by such town or city on demand. [As to all licenses granted under chap. 401 of L. 1892, and the conduct of the business thereunder, the provisions of such act are applicable, until such licenses are terminated, as provided by this section, and the restrictioois placed upon the trafficking In liquor by this law are not in force, unless otherwise ex- pressly provided in this act. The intent of this section is evidently to terminate all licenses, issued under the act of 1892j and which, at the time of the passage of this act, were valid, ooi the 30th day of June, 1896. On and after that date all trafficking In liquor must be under the authority of a. liquor tax certificate issued pursuant to this law. Any action on the part of an excise board to extend the term of a license beyond that date, will be invalid as against the legislative Intent expressed in this section. The section preceding abolishes all boards of excise from and after the 30th day of April, 1896, and provides that no license OF THE State of New Yoek. 29 § 4 The Liquor Tax Law. to sell liquors shall be Issued by such boards after the passage of this act, March 23, 1896, to extend beyond the 30th of April. Validity of licenses to begin after June 30, 1896. — A question may arfse as to the validity of licenses granted by an excise board prior to March 23d, to begin after June 30, 1896, and to extend for a certain time therefrom. Licenses granted under the authority of a board and expiring at some time subse- quent to June 80, 1896, could be renewed by such board, prior to the taking effect of the new law, undeT section 19, sub. 7 of eh. 401 of the Laws of 1892, before the expiration of such license, to continue for one year from the date of its expiration. But this section (section 4, above) says that " every license here- tofore lawfully granted * * ♦ , which is valid when this act takes effect, shall be and remain valid for the term for which it was granted." A license granted as a renewal of a license not yet expired, and which is not operative when this act takes effect, can not be deemed a valid license. It can not, therefore, be expressly saved by this section. Without this section, saving, for a time, existing licenses, every license granted prior to the enactment of this law, and by virtue of a statute repealed by it, would be revoked and nullified. A statute regulating the traffic in Intoxicating liquors and pro- viding for a license therefor. Is a legislative grant of a right to engage in a business, which, without such grant, is illegal. There la no vested right in a licensee to sell liquor. He enters into no contract with the state. (Metropolitan Bd. of Excise v. Barrie, 34 N. Y. 657.) The legislature may then, at will, repeal an act which authorizes a person to engage in a dangerous business under certain restrictions. By such repeal, every grant which Is madp under and by virtue of the act reipealed is revoked. It Is evident, then, that every license granted by a board of excise under the act o! 1S'.)2, and which is not expressly saved by this section, must be revoked. This will include all renewals of licenses made to take effect after June 30, 1896. As to the effect of the repeal of a law upon existing licenses, see Black on Intoxicating Liquors, § 129; Pleuler v. State, 11 Nebr. 547; S. C, 10 N. W. Betp. 481; Adams v. Hackett, 27 N. H. 289; S. C, 59 Am. Dec. 376; State v. Holmes, 38 N. H. 225; State V. Andrews, 28 Mo. 14; Menken v. Atlanta, 78 Ga. 668; S. 0., 3 So. East. Rep. 414; Griffin v. Atlanta, 78 Ga. 679; S. G., 4 So, Bast. Kep. 154. Licenses are not contracts and may be revoked.— The leading case in this state and which is generally referred to in all other 30 Excise and Hotel Laws The Liquor Tax Law. § 5 states as determining tlie rights of licensees under excise laws, is Metropolitan Board of Excise v. Barrie, 34 N. Y. 657, The court in that case said: " These licenses to sell liquor are not contracts between the state and the persons licensed, giving the latter vested rights, protected on general principles and by the United States constitution against subsequent legislation, nor are they property In any legaJ or constitutional sense. They have neither the qualities of a contract or of property, but are merely temporary permits to do what otherwise would be an offense against a general law. They form a portion of the inter- nal police system of the state, are Issued In the exercise of Its police powers, and are subject to the direction of the state gov- ernment, which may modify, revoke, or continue them, as it may deem fit. If the act of 1857 had declared that licenses under it should be irrevocable (which It did not, but by its very terms they are revocable), the legislature of subsequent years would not have been bound by the declaration. The necessary powers of the legislature over all subjects of Internal police, being a part of the general grant of legislative power given by the constitu- tion, can not be sold, given away, or relinquished."] § 5. The duties of existing boards of excise. — On the fifteenth day of April, eighteen hundred and ninety-six, the several boards of excise in the several towns and cities of the state shall report in detail to the county treasurer of the county in which such board may be, except in counties containing a city of the first class, and in those counties to the special deputy commissioner for such county, the names of all corporations, associations, copartnerships, or persons who at that date hold a license from such board, the kind of license held, the date when the same was granted, the date of the termination thereof, the amount paid there- for, the name and residence of each surety on the bond of each licensee, and the place where business is carried on by such corporation, association, copartnership or person, and the names of all persons against whom proceedings are pending for a violation of the excise law, and shall on the thirtieth day of April, eighteen hundred and ninety-six, make a supplementary report to such county treasurer or special deputy commissioner in like form, covering all busi- ness transacted by them after the fifteenth day of April, OF THE State of New Yobk. 31 § 6 The Liquor Tax Law. They shall within thirty days after said thirtieth day of April deposit with the coimty treasurer of the county, or in the counties containing a city of the first class, with the special deputy commissioner for such county, all books of record and accounts, maps and scrap books that have been kept by such board. Failure to make the report required by this section, or to deposit the books of record and accounts, maps and scrap books as required shall subject the offending members of such board of excise to a penalty of five hun- dred dollars, to be collected by due process of law by the county treasurer of the county elsewhere than in the counties containing a city of the first class, and there, by the special deputy commissioner for such county. [This section is new and temporary. The excise boards; under section 12 of chapter 401 of the Laws of 1892, were required to keep a book of minutes, containing a complete record of all their proceedings, and also a record-book, showing the names of licensees, locality of licensed premises, the kind of license, date of grant- ing the same, amount of fee, etc., from which the report required by this section may be made.] § 6. State commissioner of excise. — Within ten days after the passage of this act,- the governor by and with the advice and consent of the senate, shall appoint a state com- missioner of excise who shall hold his office for the term of five years, and until his successor is appointed and has quali- fied. A commissioner shall in like manner be appointed upon the expiration of the term. If a vacancy occurs in the office of a commissioner it shall be filled in like manner for the residue of the term. The commissioner shall exe- cute and file with the comptroller of the state a bond to the people of the state in the sum of twenty thousand dollars, with sureties to be approved by the comptroller, conditioned for the faithful performance of his duties, and for the due accounting for all moneys received by him as such com- missioner. The commissioner shall receive an annual salary of five thousand dollars, payable monthly and he shall also be paid his necessary expenses when absent from the city of Albany in the discharge of his duties not exceeding 32 Excise and Hotel Laws The Liquor Tax Law. §§ 7-8 annually the sum of twelve hundred dollars, which expenses shall be audited by the comptroller. [See Public Officers Law, § 10, (post, p. 136), for requirements In regard to oatli of office. As to force and effect of bond, see Public Officers Law, §§ 11, 12 (post, p. 136).] !; 7. Office of State commissioner. — The trustees or other officers having, by law, the custody of public buildings at the state capitol, shall assign to the commissioner rooms thorGii), for conducting the business of his department. The commissioner shall from time to time furnish the neces- sary furniture, stationery, and other proper conveniences for the transaction of such business, the expenses of which shall be paid by the treasurer on the certificate of the commia- sioner and the warrant of the comptroller. § 8. Deputy commissioner; secretary; clerks. — The state commissioner of excise shall appoint a deputy commissioner who shall receive an annual salary of four thousand dollars payable monthly, and his necessary traveling and other ex- penses when absent from the city of Albany in the discharge of his official duties, not exceeding annually the sum of twelve hundred dollars to be audited by the comptroller. During the absence or inability to act of the state commis- sioner, the deputy shall have and exercise all the powers conferred by this chapter upon the state commissioner. The tlcputy commissioner shall, if required by the state coni- missioaer, give a bond to the people of the state in such sum and with such sureties as shall be approved by the com- missionei. The commissioner shall appoint a secretary, who shall receive an annual salary of two thousand dollars, payable monthly and a financial clerk, who shall receive an annual salary of eighteen hundred dollars payable monthly. Such clerk, under the direction of the commissioner, shall have charge of the disbursement of the moneys appropri- ated for the expenses of the office, and shall, if required by the commissioner, give a bond to the people of the state, in such sum and with such sureties as shall be approved by the commissioner. Each of the officers provided for by OF THE State of New Yoek. 33 II 9-10 The Liquor Tax Law. this section, shall take and subscribe the constitutional oath of office before entering upon the performance of his duties. Each of such officers may be removed by the commissioner, who may in like manner appoint their successors. The commissioner may also appoint such clerical force in his office as may be necessary. [See notes to section 6, ante, and section 10, post.] § 9. Special deputy commissioner in certain counties. — Tho state commissioner of excise shall appoint a special deputy in each of the counties containing a city of the first class, who shall hold office during his pleasure. The special deputy for the coiinty of l^ew York shall receive a salary of four thousand dollars; for the county of Kings, three thousand dollars, and for the county of Erie, two thousand dollars. Such salaries shall be payable monthly. Each of such special deputies shall take and subscribe the constitu- tional oath of office^ and if required by the commissioner, execute and file in the office of the comptroller, a bond to the people of th« state, in such sum and with such sureties as shall be approved by the commissioner. The commis- sioner shall appoint in the office of each of such deputies such clerical force as may be necessary, or as may be pro- vided by law. Each of such deputies shall be furnished with an office, and furniture, fixtures and appliances there- for, as may be necessary. They shall perform such duties as may be required by the commissioner, or as may be provided by law. Each of such special deputies shall per- form, in the county for which he is appointed, all the duties heretofore . conferred upon boards of excise or excise com- missioners in such county under any law repealed by this act, during the continuance of any license heretofore granted as to the transfer, surrender or revocation thereof, or as to prosecuting offenses for violations of law under any law existing immediately' prior to the passage of this act. [See notes to section 6, ante, and to the next section.] § 10. Special agents; attorneys. — The state commissioner of excise shall appoint not more than sixty special agents, 5 34 Excise and Hotel Laws The Liquor Tax Law. I 10 each of wliom shall receive an annual salary of twelve hun- dred dollars, payable monthly, together with the necessary expenses incurred in the performance of the duties of his office. Each of such special agents shall, if required by the commissioner, execute and file in the office of the comp- troller, a bond to the people of the state in such sum and with such sureties as the commissioner shall require, con- ditioned for the faithful performance of the duties of his office. Such special agents shall be deemed the confidential agents of the state commissioner, and shall, under the direc- tion of the commissioner and as required by him, investigate all matters relating to the collection of liquor taxes and penalties under this act and in relation to the compliance with law by persons engaged in the traffic in liquors. Any such special agent may enter any place where liquors are sold at any time when the same is open, and may examine any liquor tax certificate granted or purported to have been granted in pursuance of law. He may investigate any other matters in connection with the sale of liquor and shall make complaints of violations of this act as provided for other officers in section thirty-seven hereof. He shall be liable for penalties as provided in section thirty-eight of this act, for neglect by public officers. The state commissioner of excise may designate for any county in which there is not a special deputy commissioner, one of such special agents to perform the duties conferred upon special deputies in rela- tion to the transfer, surrender or revocation of a license existing at the time this act takes effect and as to prosecuting violations of laws repealed by this act. The state commis- sioner may designate in any county of the state an attorney or attorneys, to act with the special deputy of such county or a special agent, designated by the commissioner as pro- vided by this section, in the prosecution of all actions or proceedings under any law repealed by this chapter and pending when this chapter shall take effect, who shall have such authority as was conferred by law upon attorneys for boards of excise under the laws in force immediately prior to the passage of this chapter. The state commissioner may likewise designate and appoint an attorney in any county OF THE State of New Yoek. 35 } 10 The Liquor Tax Law. of the state to act with the special deputy, special agent or county treasurer, in the prosecution or defense of any action or proceeding brought under the provisions of this act. They shall be paid by the state treasurer on the warrant of the comptroller, such compensation as shall be agreed upon by the state commissioner. [Under this section and the two preceding sections, 8 and 9/ the oflEicers appointed by the commissioner may be required to. give bonds in such sum and with such sureties as the commis- sioner may prescribe. In this section it is prescribed that the' special agents shall be deemed the confidential agents of the commissioner. The evident intent of these provisions is to place such officers in the non-competitive class of civil service appoint-., ments, and under existing rules, adopted by the state civil' service commission, such officers would only be required to take; a non-competitive examination. Such rules, upon the recom- mendation of the governor, are subject to change by the civil service commission. In connection with this subject we quote a part of an opinion of Attorney-General Hancock, addressed to Governor Morton, March 26, 1896: "The civil service law of this state establishes a general pilan of appointment in the various departments of the state civil service, and has been the subject of review by the courts of the state, both before and since the adoption of the revised constitution. i "Section 9 of article 5 of the constitution of 1894 makes' specific provisions for appointments and promotions in the civil service of the state, and declares that 'laws shall be made to provide for the enforcement of this section.' " In view of this constitutional provision, it has been a matter of serious contention whether the civil service section of the constitution is self-executing, or whether it did not, in fact, con- template new and additional legislation. "This question appears to have been settled, in part at least,- by two recent decisions made by the court of appeals, declaring. In effect, that the constitutional provision in question executes itself. " In the case of The People ex rel. McClellan v. Roberts, 148 N. T. 360, the court says: ' It is quite clear, therefore, that the civil service statutes constitute a general system of statute law, applicable to appointments and promotions in every department of the civil service of the state, with such exceptions only as are" 36 Excise akd Hotel Laws The Liquor Tax Law. { 11 specified In the statute Itself.' And further: ' If the legislature should repeal all statutes and regulations on the subject of ap- pointments In the civil service, the mandate of the constitution would still remain, and would so far execute itself as to require the courts, In a piroper case, to pronounce appointments made without compliance with its requirements illegal.' " In The Matter of Keymer, 148 N. Y. 219, the court says that: ' This section of the constitution Is clear and concise, and It seems that there ought to be little difficulty in understanding its meaning. Appointments and promotions in the civil service are to be made according to merit and fitness, to be ascertained, as far as practicable, by examination, which, so far as practicable, shall be competitive.' And further: ' It is quite possible there are, or will be, offices and positions, by reason of peculiar duties. Which experience will demonstrate can not be filled by com- petition; and when such a case arises, it will be competent for the legislature to provide for it by an appropriate act, designating the circumstances which justify its intervention.' "The court has, in effect, held that former decisions, holding that certain state officers and departments are not subject to the provisions of the civil service laws, are superseded by force of the constitutional amendment, and that the broad, comprehensive terms therein contained place every department of the govern- ment within the provisions of those laws. " The recent enactment in relation to the traffic in liquors con- stitutes a new state department, which, under the decisions here- inbefore mentioned, is very clearly brought within the pro- visions of the civil service laws of the state, and subordinates thereunder should be classified. " It was evidently the intent of the legislature, in designating spiecial confidential agents, as well as in providing for a deputy commissioner, and special deputies for cities of the first class, to bring the deputies, employes and agents contemplated by the law within the terms of rule 5 of the civil service rules of the state." § 11. Excise taxes upon the business of trafficking in liquors.— Excise taxes upon the business of trafficking in liquors shall be of four grades and assessed as follows: Subdivision 1. Upon the business of trafficking in liquors to be drunk upon the premises where sold, or which are so drunk, whether in a hotel, restaurant, saloon, store, shop, booth or other place, or in any outbuilding, yard or garden OF THE State of New Yoek. 37 § 11 The LiQuor Ta;£ Law. appertaining thereto or connected therewith, there is as- sessed an excise tax to be paid by every corporation, asso- ciation, copartnership or person engaged in such traffic, and for each such place where such traffic is carried on by such corporation, association, copartnership or person, if the same be in a city having by the last state census a population of fifteen hundred thousand or more, the sum of eight hundred dollars; if in a city having by said census a popu- lation of less than fifteen hundred thousand, but more than five hundred thousand, the sum of six hundred and fifty dollars; if in a city having by said census a population of less than five hundred thousand, but more than fifty thou- sand, the sum of five hundred dollars ; if in a city or village having by said census a population of less than fifty thou- sand, but more than ten thousand, the sum of three hundred and fifty dollars; if in a city or village having by said census a population of less than ten thousand but more than five thousand, the sum of three hundred dollars; if in a village having by said census a population of less than five thou- sand, butjjorsjhan twelve hundred, the sum of two hun- dred^dAUars; if in any other place, the sum of one hundred/ dollars. The holder of a liquor tax certificate under this sub- division is entitled also to traffic in liquors as though he held a liquor tax certificate under subdivision two of this section, subject to the provisions of section sixteen of this act. Subdivision 2. Upon the business of trafficking in liquors in quantities less than five wine gallons, no part of which shall be drunk on the premises where sold, or in any out- building, yard, booth or garden appertaining thereto, or connected therewith, there is assessed an excise tax to be paid by every corporation, association, copartnership or per- son engaged in such traffic, and for each such place where such traffic is carried on by such corporation, association, copartnership or person, if the same be in a city having by the last state census a population of fifteen hundred thousand or more, the sum of five hundred dollars; if in a city having by the said census a population of less than fifteen hundred thousand, but more than five hundred thousand, the sum of four hundred dollars; if in a city having by said census a population of less than five hundred thousand, but more 38 Excise akd Hotel Laws The Liquor Tax Law. § 11 than fifty thousand, the sum of -three hundred dollars; if in a city or village having by said census a population of , less than fifty thousand, but more than ten thousand, the ' 1 sum of two hundred dollars; if in a village having by said census a population of less than ten thousand, but more than five thousand, the sum of one hundred dollars; if in a vil- ,.,lage having by said census a population of less than five thousand, but more than twelve hundred, the sum of sev- enty-five dollars; if in any other place, the sum of fifty dollars. The holder of a liquor tax certificate under this subdivision, who is a duly licensed pharmacist, and the cor- poration, association or copartnership of which he is a member is subject to the provisions of exception one of section thirty- one of this act, and to the provisions of section sixteen of this act. Subdivision 3. Upon the business of trafficking in liquors by a duly licensed pharmacist, which liquors can only be sold upon the written prescription of a regularly licensed physician, signed by such physician, which prescription shall state the date of the prescription, the name of the person for whom prescribed, and shall be preserved by the vendor, pasted in a book kept for that purpose, and be but once filled, and which liquors shall not be drunk on the premises where sold, or in any outbuilding, yard, booth or garden appertaining thereto, or connected therewith, there is as- sessed an excise tax to be paid by such duly licensed pharma- cist or the corporation, association or copartnership of which he is a member, engaged in such traffic, and for each such place where such traffic is carried on by such pharmacist, or by such corporation, association or copartnership of which he is a member, if the same be in a city having by the last state census a population of fifteen hundred thousand or more, the sum of one hundred dollars; if in a city having by the said census a population of less than fifteen hundred thousand, but more than five hundred thousand, the sum of seventy-five dollars; if in a city having by said census a population of less than five hundred thousand, but more than fifty thousand, the sum of fifty dollars; if in a city or village having by said census a population of less than fifty thousand, but more than ten thousand, the sum of thirty OF THE State of New Yoek. 39 5 11 The Liauor Tax Law. dollars; if in a city or village having by said census a popu- lation of less than ten thousand, but more than five thou- sand, the sum of twenty dollars; if in a village having by said census a population of less than five thousand, but more than twelve hundred, the sum of fifteen dollars; if in any other place, the s\un of ten dollars. Nothing however in this subdivision shall be construed ■ as prohibiting the sale without prescription of alcohol to be used for medicinal, mechanical or chemical purposes. Subdivision 4. Upon the business of trafficking in liquors upon any car, steamboat or vessel within this state, to be drunk on such car or on any car connected therewith, or on such steamboat or vessel, or upon any boat or barge at- tached thereto, or connected therewith, there is assessed an excise tax, to be paid by every corporation, association, co- partnership or person engaged in such traffic and for each car, steamboat or vessel upon which traffic is carried on, the sum of two hundred dollars. When the population of a city or village is not shown by the last state census, it shall be determined for the purposes of this act by the last United States census, and if not so shown by reason of the incorporation of a new city or vil- l.ige, the state commissioner of excise is authorized and directed to cause an enumeration of the uihabitants to be taken in such city or village. If, since the latest state enumeration was taken, the boundaries of a city have been changed by the addition of territory not in the same judicial district, such annexed territory shall not be deemed to be a part of such city for the purposes of this act; but such annexed territory shall be deemed to be a town, and all the provisions of this act shall be applicable to such annexed territory the same as if it had not been so annexed, except that all the money which would otherwise be payable to the town under this act, shall be paid to the city to which such territory was annexed. [By this section there are provided four classes of liquor tax certificates: 1. For the sale of liquors to De drunk upon the premises, whether in a hotel, restaurant, saloon, or in any other place. 40 Excise axd Hotel Laws The Liquor Tax Law. { 11 The holder of such a certificate may also sell in quantities lesa than five gallons to be drunk off the premises, without paying an additional tax. 2. For the sale of liquors in quantities less than five gallons, no part of which shall be drunk on the premises. 3. For the sale of liquors by druggists or pharmacists, to be sold on prescription only. 4. For the sale of liquors by common carriers. Tax, how regulated. — All certificates, of the first, second and third class, are issued upon the payment of a tax, the amount of which is regulated by the population of the municipality, where the business is to be conducted, as shown by the last state census, ,or if the population of a city or village is not shown by the last state census, then it shall be determined by the last United States census. If a new city or village has been incor- porated since either census, the commissioner is authorized to take an enumeration of the inhabitants thereof. The following table is inserted to show the amount of tax for the several classes of certificates to be paid by the cities and villages of the state: Tax: Class 1, $800 ; Class 2, $500 ; Class 3, $100. City or village. Population 1698. New York 1,R01.739 Tax : Class 1, $650 ; Class 2, $400 ; Class 3, $75. Brooklyn 957,163 Tax: Class 1, $500; Class 2, $300; Class 3, $50. ■A^Ibany 97,120 Buffalo 278,796 Rochester I44 §34 Syracuse 91,994 Troy 64,986 Tax : Class 1, $350 ; Class 2, $200 ; Class 3, $30. Amsterdam Ig 542 Auburn . . . ; 24 737 Binghamton 34 5^4 Colioes 23!234 Corning 10 025 Dunkirk 10,040 Elmira 29,911 OF THE State of New York. 41 5 11 The Liquor Tax Law. atyorTillasre. Population 1898. Gloversville ^ j4 Q94 Hornellsvllle 11.898 Ithaca 13,400 Jamestown Ig g27 Johnstown* 10 goo Kingston 21,495 Little Falls* 11,000 Lockport 16,088 Long Island City 35,745 Mlddletown 11,612 Mt. Vernon* 15,513 Newburgh 24,536 Niagara Falls* 11,000 Ogdensburg 11,959 Oswego 21,966 Poughkeepsie 23,196 Rome 13,638 Schenectady 22,858 Utlea 46,608 Watertown 16,982 Yonkers . . . ; 31,419 Population 1890. Edgewater 14,265 Lansingburgh 10,550 New Brighton 16,423 Saratoga Springs 11,975 West Troy 12,967 Tax : Class 1. $300 ; Class 2, $100 ; Class 3, $20. Hudson (1892) 9,633 Batavia 7,221 Canandalgua 5,868 College Point 6,127 Cortland 8,590 Flushing 8,463 Geneva 7,557 Glens Falls 9,509 Greenbush 7,301 Haverstraw 5,170 Hoosick Falls 7,014 * EBtimated; not incorporated in 1892 6 42 Excise and Hotel Laws The Liquor Tax Law. § 11 YUlaKes, Population 18S0. ■Jamaica 5,361 New Rochelle 8,217 Norwich 5,212 Olean (1892) 8,131 Oneida 6,083 Oneonta 6,272 Peekskill 9,076 Plattsburgh 7,010 Port Chester 5,274 Port Jervis 9,327 Port Richmond . . 3,'j30 Seneca Falls 0.116 Sing Sing 9,352 Tonawanda 7,145 Tax: Class, 1 $200 ; Class 2, $75 ; Class 8, $15. Adams 1,360 Addison 2,166 Akron 1,492 Albion 4,586 Athens 2,024 Attica 1,994 Avon 1,653 Baldswinville 3,040 Eallston Spa 3,527 Bath 3,261 Bath-on-Hudson 2,399 Boonville 1,613 Brockport 3,742 Cambridge 1,593 Camden 1,902 Canajoharie 2,0S9 Canastota 2,774 Canlsteo 2,071 Canton 2,580 Cape Vincent 1,324 Carthage 2,278 CatskiU 4,920 Cazenovla 1,987 Champlain 1,275 Chatham 1 912 OF THE State of New Yoek. 43 § 11 The Liquor Tax Law. Vlllsges. Population 1890. Clayton 1,748 Clifton Springs 1,297 Clinton 1,269 Clyde 2,638 Cobleskill 1,822 Cooperstown 2,657 Corinth 1,222 Coxsackie 1,611 Cuba 1,386 DansviUe 3,758 Delhi 1,564 Deposit 1,530 Dobbs Ferry 2,083 Dolgeville 2,000 Dundee 1,200 East Aurora 1,582 East Syracuse 2,281 EUenville 2,881 Fairport 2,552 •Far Rockaway 2,288 Fayetteville 1,410 Fishkill-on-Hudson 3,617 Fort Plain ., 2,864 Frankfort 2,291 Fredonia 3,399 Fulton 4,214 Geneseo 2,286 Goshen 2,907 Gouverneur 3,458 Green Ipland 4,463 Greenwich 1,663 Groton 1,280 Hamburgh 1,331 Hamilton 1>744 Hancock 1.279 Hastings-on-Hudson 1,466 Hempstead 4,831 Herkimer 4,200 Holley 1,381 Homer 2,526 Horseheads 1,716 Ilion • • 4,057 44 Excise and Hotel Laws The Liquor Tax Law. i 11 City or viDage. Population 1890. Irrlngton 2,299 Jorflan 1,271 Keesevllle 2,103 Lancaster 1,692 Le Roy 2,743 Liverpool 1,284 Lowville 2,511 Lyons 4,475 Malone 4,986 Matteawan 4,278 Mechanicvllle 2,679 Medina 4,492 Mexico 1,315 Middleport 1,217 Mohawk 1,806 Montour Falls 1,751 Moravia 1,480 Mt. Morris 2,286 Newark 2,824 North Tarrytown 3,179 North Tonawanda 4,793 Norwood 1,463 Nyack 4,111 Oswego Falls 1,821 Oxford 1,477 Palmyra 2,131 Penn Yan 4,254 Perry 1,528 Phelps 1,336 Philmont 2,300 Phoenix 1,466 Piermont 1,219 Port Henry 2,436 Potsdam .■ 3,961 Pulaski 1,517 Randolph 1,201 Rhinebeck 1,649 Richfield Springs 1,623 Rouses Point 1,856 St. Johnsville 1,263 St. Regis Falls 1,210 Salamanca 3,692 Sandy Hill 2,895 OF THE State of New Yobk. 45 § 11 The Liquor Tax Law. city or village. Population lf90. Saugertles 4,237 Schaghtlcoke 1,258 SchuylervUle 1,387 Sidney 1,358 Silver Creek 1,678 Skaneateles 1,559 South Nyack 1,496 Sprlngville 1,883 Tarrytown 3,562 Tlconderoga 2,267 Tlvoll 1.350 ■ Trumansburg » 1,211 Valatle 1.437 Walden 2,132 Walton 2,299 Wapplnger's Falls 3,718 Warsaw 3,120 Warwick ■ l.f>37 Waterloo ' 4.530 WatervUle 2,024 Waverly . . , • 4,123 Weedsport • 1,580 Wellsville 3,435 Westfleld 1<983 Whitehall 4,434 White Plains 4,04l' Whitesboro 1-663 Whitestone 2,808 Willlamsbridge 1.6S3 In all other portions of the state, except those mentioned in the above table, the tax assessed is one hundred dollars for certifi- cates of the first class, fifty dollars for certificates of the second class, and ten dollars for certificates of the third class. A different rate of tax for cities of the same constitutional class (see Constitution, art. xii, § 2), is prescribed by this section; as to the question whether the governor had jurisdiction to act upon tha bill, without its submission to the cities, see the gov- ernor's memorandum at the beginning of this chapter. This question will be one of the Hist relating to this act, which will be settled In the courts. 46 Excise and Hotel Laws The Liquor Tax Law. i§ 12-13 § 12. Tax, when due and payable. — The several amounts to be paid as taxes under this act are assessed yearly, commencing on the first day of May, eighteen hun- dred and ninety-six, and shall be paid yearly on the first day of May of each year, and said assessments together with any penalty that may become due by reason of the violation of any of the provisions of this act, shall attach to and operate as a lien on the property on and in said premises where such traffic in liquors is carried on or elsewhere be- longing to the •corporation; association, copartnership or person from whom such tax is due; provided, however, that when such traffic shall be commenced after" thei said first day of May in any year, said assessment shall, for the balance of the year, be in proportion as the remainder of the year shall be to the whole year, except that it shall in no case be for less than one-twelfth of a year — - any part of a month being computed as one month — and the said amount shall attach and operate as a lien as aforesaid, at the date of such commencement. This section is subject to the pro- visions of aection f our of this -act relating to licenses in force at the date of the passage of this act. § 13. Officers to whom the tax is to be paid and how distributed. — The taxes assessed and all fines and pen- alties incurred under this act in' counties containing a city of the first class shall be collected by and paid to the special deputy commissioner for such county, and in all othei counties to the county treasurer of the county in which the traffic is carried on, except that the taxes assessed under subdivision four of section eleven of this act, and all fines and penalties in connection therewith, shall be collected by and paid to the state commissioner of excise and by him to the state treasurer. One-third of the revenues 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 several 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 OF THE State of ITew Yoek. 47 § 13 The Liquor Tax Law. revenue of the state, and shall be appropriated to the pay- ment 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 for the appropriation and expenditure of sums received for excise licenses, or in such other manner as may hereafter be provided by law. [The money collected from the persons engaged in the tratnc in liquors is to be disbursed according to the provisions of this section. One-third of such revenue less the amount allowed for collecting such portion is to be paid to the treasurer of the state, to the credit of the general fund, to be appropriated for the payment of the current expenses of the state. The remaining two-thirds thereof is paid by the county treasurer or the special deputy commissioner, to the supervisor of the town or the fiscaJ officer of the city where the tax is collected. tinder all previous statutes existing in this state, the revenues derived from th^ licensing of the liquor business have been col- lected by the local authorities and become a part of the funds of the locality. The question might arise, as to whether the state can take from the locality any part of the money derived from this business. But the fact that the legislature has always pro- vided by statute that excise moneys should belong to the locality and be expended by the authorities thereof, can have no effect upon the right of the legislature to provide for a different dis- position of such funds. In Wisconsin, it was held that the fee which is paid for a license Is not imposed for the purpose of revenue only. It is one of the incidents of a system adopted for the regulation of the liquor traffic. The system itself is inaugurated by the state to apply generally; there is, therefore, no right vested in the municipality of the state, to the use of the fees resulting from the system. Such fees naturally belong to the funds of the state and may be disposed of by the legislature in its discretion. (Rock County v. City of Edgerton, 90 Wis. 288; S. C, 63 N. W. Rep. 291. See Richland Co. v. Richland, 18 N. W. Rep. 497.)] 48 Excise and Hotel Laws The Liquor Tax Law. §§ 14-15 § 14. Compensation of county treasurers. — As full compensation and in full payment of all charges and ex- penses for collecting the taxes herein provided for, and keeping the necessary books, and making the necessary re- ports, and issuing the liquor tax certificates, the officer charged therewith, shall be allowed in counties containing a city of the second class, ,one per centum on the amount of taxes, penalties and fines collected; in counties containing a city of the third class, two per centum; and in all other counties, except in counties containing a city of the first class, three per centum, which amount shall be deducted and retained by him from the moneys so collected, and charged one-third to the state and two-thirds to the locality to which the tax belongs. § 15. Books and blanks to be furnished by the state commissioner of excise. — Immediately upon the passage of this act the state commissioner of excise shall cause to be prepared the necessary books for his office, and shall also cause to be prepared and furnish to each special deputy commissioner and to each county treasurer in counties not containing a city of the first class, the necessary and proper books of record, and books in which accounts shall be kept of all taxes, or other moneys accruing and collected under the provisions of this act, and the necessary blanks for re- ports, and the blanks necessary for the application for liquor tax certificates, and the blank bonds and liquor tax cer- tificates, provided for in this act, which books, blanks and certificates shall be uniform throughout the state. Such books of record and account and all reports, applications, and bonds when filed, shall be public records. The necessary expenses of preparing such books and blanks and certificates shall be paid out of the treasury of the state from any funds not otherwise appropriated. He shall furnish to each county treasurer in counties not containing a city of the first class, and to each special deputy commissioner, who shall keep the same, a record book showing in separate columns: 1. The name of each corporation, association, copartner- ship or person upon which or whom a tax is assessed under the provisions of this act. OF THE State of New Yoek. 49 § 15 The Liquor Tax Law. 2. TBe name of each corporation, association, copartner- sliip or person paying a tax under the provisions of this act. 3. The name of each corporation, association, copartner- ship or person to which, or to whom, a certificate of the ])ayment of such tax is issued. 4. Under which of the first three subdivisions of section eleven of this act such certificate of the payment of such tax is issued. 5. The date Avhen such tax is assessed and the date of the commencement of the term for which issued. 6. The term for which, such certificate is issued and the date of the ending thereof. 7. The amount of the tax assessed. 8. The amoimt of tax paid. 9. The date when paid. 10. The location of the premises where the traffic is carried on. 11. The name and residence of each surety or corpora- tion on the bond of the corporation, association, copartner- ship or person to whom the tax certificate is issued. 12. The amount of each fine or penalty and the costs if any. 13. The amount collected. 14. The amount of the expense of such collection. 15. The date of the surrender or cancellation of any tax certificate and the cause therefor. 16. The amount of tax refunded, if any, upon such sur- render or cancellation. Such officer shall also keep such books of account and in such form as the state commissioner of excise shall provide and direct, and shall render to such commissioner such re- ports as he may from time to time require. [This section provides that all blanks to be used upon the appilication for a tax certificate shall be furnished by the state commissioner of excise to county treasurers and deputy commis- sioners. Such blanks are to be furnished applicants on demand. The theory seems to be that no other blanks can be used.] 7 60 Excise and Hotel Laws The Liquor Tax Law. § 16 § 16. Local option, to determine whether liquors shall be sold under the provisions of this act. — In order to ascertain the will of tlie qualified electors of each town, it shall be the duty of each officer of a town charged by the election law, or by any special act relating to elections in any town, with the duty of preparing official ballots, to have prepared at the time fixed by law for preparing the ballots for a town election occurring next after the passage of this act, the ballots required by the election law for voting upon any constitutional amendment, proposition or question, in the form and of the number required by the election law. Upon the face of the ballot to be voted at such election, by all persons who may legally vote thereat, shall be printed the following questions submitted: 1. Selling liquor to be drunk on the premises where sold. — Shall any corporation, association, copartnership or person be authorized to traffic in liquors under the pro- visions of subdivision one of section eleven of the liquor tax law in (here insert the name of the town). 2. Selling liquor not to be drunk on the premises where sold. — Shall any corporation, association, copartner- ship or person be authorized to traffic in liquors under the provisions of subdivision two of section eleven of the liquor tax law in (here insert the name of the town). 3. Selling liquor as a pharmacist on physicians' pre- scription. — Shall any corporation, association, copartner- ship or person be authorized to traffic in liquor under the provision of subdivision three of section eleven of the liquor tax law in (here insert the name of the town). 4. Selling liquor by hotel keepers.— Shall any corpora- tion, association, copartnership or person be authorized to traffic in liquors under subdivision one of section eleven of the liquor tax law, as the keeper of a hotel in (here insert the name of town). At such town meeting, the several questions may be voted upon by the electors who may legally vote thereat. OF THE State of New Yoek. 51 16 The Liquor Tax Law. A return of the votes so cast and counted shall be made as provided by law, and if the majority of the votes shall be in the negative on either of such questions, no corpora- tion, association, copartnership or person shall thereafter so traffic in liquors or apply for or receive a liquor tax cer- tificate under the subdivision or subdivisions of such section eleven, upon which the majority of votes have been cast in the negative, that is against so authorizing the traffic in liquors within such town, but if the majority of the votes cast on the fourth question submitted are in the affirmative, a liquor tax certificate may be granted under subdivision one of section eleven to the keepers of hotels. Such action shall not, however, shorten the term for which any liquor tax certificate may have been given under the provisions of this act, nor affect the rights of any person thereunder. The same questions shall be again stibmitted in the same way at the annual town election held in every second year thereafter, provided the electors of the town to the number of ten per centum of votes cast at the next preceding gen- eral election shall, by a written petition, signed and ac- knowledged by such electors before a notary public or other person authorized to take acknowledgments or admin- ister oaths and duly filed with the officer charged with the duty of furnishing ballots for the election, request such submission. A copy of the statement of the result of the vote, upon each of such questions submitted, shall, imme- diately after such submission thereof be filed by the tOAvn clerk or other officer with whom returns of town elections are required to be filed by the election law, with the county treasurer of the county, and with the special deputy com- missioner for counties containing a city of the first class, which also contains a town, and no liquor tax certificate shall thereafter be issued by such officers to any corporation, association, copartnership or person under such subdivision of section eleven of this act upon which a majority of the votes may have been cast in the negative, but if the majority of the votes cast on the fourth question submitted are in the affirmative, a liquor tax certificate may be granted un- der subdivision one of section eleven to the keepers of hotels. 52 Excise and Hotel Laws The Liquor Tar Law. § 16 It is further provided that in any town in whicli at the time this act shall become a law there is no license, it shall not be lawful for the county treasurer, or special deputy commissioner to issue any Hquor tax certificate provided for by this act, until such town shall have voted upon the ques- tions provided to be submitted by this section, and then to issue such liquor tax certificate only, as may be in accord- ance vsdth the vote of a majority of the electors on the question submitted. [See Forms. The provision in this section for the voting upon the questions as to whether certain licenses shall be granted in a town, is the first law that has ever been placed upon the statute books in this state directly authorizing the people of a town to vote on such questions. Under section 41 of chapter 401 of the Laws of 1892, repealed by this act, there was a general reference made to a vote by a town for local prohibition, but such section contained no procedure. The system of local option developed under the old law, depended upon the character and opinions of the men who were elected to serve as excise commissioners in such town. If a majority of the board were elected as being opposed to the granting of licenses, no licenses were granted in such town and it was deemed an expression of the will of the people that no licenses should be granted therein. Under this section the four questions therein stated are to be voted upon at the town election occurring next after the passage of this act. Thereafter the same questions shall be again sub- mitted, not oftener than once in two years upon a written petition signed and acknowledged by 10 per cent, of the electors of such town, as determined by the number of votes cast at the next preceding general election. If, at such elections, a majority of the votes cast is against the granting of the kinds of liquor tax certificates specified in the four propositions submitted at such election, no such tax certificates shall be granted for a period of two years. Constitutionality. — The chief constitutional ground of objec- tion against so-called local option laws, is because it amounts to a delegation of legislative power to the people, and for that reason ia contrary to the constitutional provision which vests all legislative powers in the legislature. But if a statute is a com- plete enactment in itself, requiring nothing further to give it validity, and depending upon the popular vote of a limited com- OF THE State of New York. 53 § 16 The Liquor Ta;s Law. munity for nothing but a determination of the territorial limits of its operation, it is not open to this constitutional objection. Many of the states have laws similar to this, and in all those states the preponderance of authority is to the effect that such statutes are constitutional and valid. Among the many cases that might be cited, we refer to the following: Weil v. Cal- houn, 25 Fed. Kep. 865; State v. Parker, 26 Vt. 357; Commonwealth V. Bennett, 108 Mass. 27; Commonwealth v. Dean, 110 Mass. 357; State V. Wilcox, 42 Conn. 364; State v. Common Pleas of Morris Co., 36 N. J. Law, 72; S. C, 13 Am. Rep. 422; State v. Circuit Courts, 50 N. J. Law, 585; S. C, 15 Atl. Rep. 272; Hammond v. Haines, 25 Md. 541; S. C, 90 Am. Dec. 77; Tell v. State, 42 Md. 71; S. C, 20 Am. Rep. 83; Savage v. Commonwealth, 84 Va. 619; S. C, 5 S. B. Rep. 565; Caldwell v. Barrett, 73 Ga. 604; State v. Pond, 93 Mo. 606; S. C, 6 S. W. Rep. 469; Teek v. Bloomingdale, 82 Mich. 393; S. C, 47 N. W. Rep. 37. This section does not leave it to be determined by the electors of a town whether it shall be lawful to sell liquors without a license. The law itself determines that, but the only question which is left to the popular vote is whether or not it shall be lawful to sell either with or without the licenses. The determi- nation made by a majority vote in any town does not affect the validity of the law nor its application to that town. By its vote, a town decides for itself whether or not liquor tax certificates shall be issued in tliat town. The vote prescribed is to ascertain the will of the people, not as to tlie passage of the law, but whether intoxicating liquor should be sold in their midst. If a majority voted against the sale, the law and not the vote de- clared that it should not be sold. The vote springs from the law and not the law from the vote. By their vote the electors declare no consequences, prescribe no penalties, and exercise no legis- lative function. The law declared the consequences of violations of the act, and they are exclusively the result of the legislative will. (State v. Pond, 93 Mo. 606.) In considering a law similar to this, the supreme court of Penn- sylvania declared: " Then what did the vote decide? Clearly not that the act should be a law or should not be, for the law already existed. Indeed, it was not delegated to the people to decide any- thing. They simply declared their views or wishes, and when they did so it was the flat of the law. not their vote, which com- manded licenses to be issued or not to be issued. The true dis- tinction I conceive is this: The legislature can not delegate its power to make a law, but it can make a law to delegate a power 54 Excise and Hotel Laws The Liquor Tax Law. § 16 to determiiie some fact or state of things upon which the law makes or intends to make its own action depend. (Locke's Appeal, 72 Pa. St. 491; S. C, 13 Am. Rep. 716.) Submission, of questions. — For the duties of the town clei'k and other officers relating to the submission of these questions, see Election Law, §§ 83, 84; Town Law, §§ 34, 41. Petition. — These same questions can be resubmitted at an an- nual town meeting every second year upon the filing with the town clerk of a petition signed and acknowledged by 10 per cent, of the electors of the town. The filing of the petition is a jurisdictional prerequisite and without such a petition sufficient in form and number of signatures no valid election can be held. (Aiken v. State, 14 Tex. App. 142.) It is not necessary to justify the holding of a local option elec- tion under the law in Texas similar to this section that the names of all the petitioners shall be signed to one petition. It is suffi- cient if two or more of a number of petitions contain the names of the requisite number of qualified voters, and that they are all filed at the proper time and acted upon and treated as one petition. (Irish v. State, 25 S. W. Rep. [Tex.] 633; State v. Weekes, 38 Mo. App. 566.) There is nothing in this section relating to the contents of the petition. It would seem, therefore, that any form showing upon Its face that the signers are desirous of a submission of the questions to a vote of the people and duly acknowledged by them, would be sufficient. It is not essential that the petition should refer to this section of the law. In Texas where a petition for an election under a local option law similar to this, unneces- sarily referred to such law and incorrectly described it, the er- roneous reference was treated as surplusage and did not invalidate the petition. (Steele v. State, 19 Tex. App. 425.) The petition should, however, state the fact that the signers are legally qualified to vote at the annual town meeting at which it is desired to submit the questions. Determination of result. — The section provides that if a ma- jority of the votes shall be in the negative on either of such questions, no local tax certificate shall be issued within such town. It would seem, therefore, that a majority of the votes must be cast against the issuing of such certificates, and in case of a tie the question would be undetermined and certificates could still be issued in such town. (Temmick v. Owings, 70 Md. 246; S. C, 16 Atl. Rep. 719.)] OF THE State of New York. 55 § 17 The Liquor Tax Law. § 17. statements to be made upon application for liquor tax certificates. — Every corporation, association, copartnersliip or person liable for a tax under subdivisions one, two or three of section eleven of this act, shall, on or before the first day of May of each year, or if now holding a license legally granted by any board of excise, then on or before the termination of such license, prepare and make upon the blank which shall be furnished by the county treasurer of the county and in counties containing a city of the first class by the special deputy commissioner for such county upon application therefor, a statement which shall be given to such county treasurer or special deputy, signed and sworn to by such applicant or applicants, or by the person making such application in behalf of a corpora- tion, or association, stating: 1. The name of each applicant, and if there be more than one and they be partners, also their partnership name, and the age and residence of the several persons so applying. 2. The name ■ of every person interested or to become interested in the trafiic in liquors for which the statement is made, unless such applicant be a corporation or associa- tion, in which case the person making the application in behalf of the corporation or association, shall set forth in- stead, the name of the corporation, or association, and the nature of his authority to act for such corporation or asso- ciation. 3. The premises where such business is to be carried on, stating the street and number, if the premises have a street and number, and otherwise such apt description as will reasonably indicate the locality thereof. 4. Under which of the first three subdivisions of section eleven of this act the traffic in liquors is to be carried on and what, if any, other business is to be carried on in con- nection therewith, or on the same premises. 5. And a statement that such applicant or applicants may lawfully carry on such traffic in liquors upon such premises, under such subdivision, and are not within any of the pro- hibitions of this act. 6. There shall also be so filed simultaneously with said statement, a consent in writing th^t such traffic in liquors 56 Excise axd Hotel Laws The Liquor Tax Law. S 17 be so carried on in such premises, executed by tbe owner of the premises, or by his duly authorized agent, and ac- knowledged as are deeds entitled to be recorded; except in cases where such traffic in liquors was actually lawfully carried on in said premises so described in said statement at the time of the passage of this act, in which case such consent shall not be required. Y. If the premises where such traffic is to be carried on are situated in any public park, such applicant or applicants shall at the same time file with such county treasurer, or special deputy, the written consent of the authorities having the custody and control of said park for the traffic in liquors therein. 8. When the nearest entrance to the premises described in said statement as those in which traffic in liquor is to be carried on is ^^dthin two hundred feet of the nearest entrance to a building or buildings occupied exclusively for a dwelling, there shall also be so filed simultaneously with said statement a consent in writing that such traffic in liquors be so carried on in said premises during a term therein stated, executed by at least two-thirds of the owners of such buildings within two hundred feet so occupied as dwellings, and acknowledged as are deeds entitled to be recorded, except that such consent shall not be required in cases where such traffic in liquor is actually lawfully car- ried on in said premises so described in said statement when this act takes effect. 9. Every corporation, association, copartnership or person liable for a tax under subdivision four of section eleven of this act shall, on or before the first day of May of each year, or if now holding a license from the comptroller of the state, then on or before the termination of such license, prepare and make upon a blank, which shall be furnished by the state commissioner of excise, such statements in re- gard to cariying on such traffic as the commissioner may require, including the statements required under clauses one, two and five of this section. rSee Forms. Many of the statements required in this section to be made by an applicant for a liquor tax certificate, were not required of OF THE State of New Yoek. 57 § 18 The Liquor Tax Law. applicants for licenses under the law of 1892. In addition to those required in that act, it is here required to state what other business is to be carried on in connection with such liquor busi- ness or on the same premises. The applicant is also required to file with such statement a consent in writing, executed by the owner of the premises. If the premises to be occupied are within two hundred feet of a dwelling, it is also required to secure the consent of two-thirds of the owners of all the dwellings within two hundred feet of such premises. Such consents, however, are not required in the case of places which were licensed under the old law.] § 18. Bonds to be given. — Each corporation, associa- tion, copartnership or person taxed under this act, shall at the time of making the application provided for in section seventeen of this act, file in the office of the county treas- urer, of the county in which such traffic is to be carried on, cr if in a county containing a city of the first class with the special deputy commissioner for such county, or if the application be under subdivision four of section eleven of this act, with the state commissioner of excise, a bond to the people of the state of JSTew York, in the penal sum of twice the amount of the tax for one year upon the kind of traffic in liquor to be carried on by such applicant, where carried on, but in no case for less than five hundred dollars, conditioned that if the tax certificate applied for is given, the applicant or applicants will not, while the business for which such tax certificate is given shall be carried on, suffer or permit any gambling to be done in the place designated by the tax certificate in which the traffic in liquors is to be carried on, or in any yard, booth or garden appertaining thereto or connected therewith, or suffer or permit such premises to become disorderly, and vsdll not violate any of the provisions of the liquor tax law. Such bond shall be executed by each such applicant, and if given by a corporation or association, by some person or persons duly authorized so to do as principal, and by at least two sureties residents of the town or city in which the premises are where such traffic is to be carried on, one of whom shall be a freeholder, or instead of such sureties, by a corporation 8 58 Excise and Hotel Laws The Liquor Tax Law. { 18 duly authorized to issue surety bonds by the laws of this state. The bond, if given by two sureties, shall have an- nexed thereto or indorsed thereon the affidavit of each surety that he is worth double the penal sum named in such bond over and above his property exempt by law from levy and sale upon an execution and over and above his just debts and liabilities. [The forms of bonds are prescribed by the state commissioner of excise, and are furnished applicants by the county treasurers or deputy commissioners. The only bond required under the old law (chap. -101 of Jj. 1892), was in the penal sum of two hundred and fifty dollars, condition that while the business licensed shall be carried on, that the licensee would not suffer the licensed premises to become disorderly, or suffer any gambling therein, or in any outhouse, yard or garden belonging thereto, and would not violate any provisions of the excise laws. By this section the amount of the bond is regulated by the tax paid in the locality where the business is conducted. But in no case is it less than five hundred dollars. The conditions of the bond, specified in this section, are the same as those prescribed in the previous law. By section 36 of this act, it is provided that the county treas- urer or special deputy commissioner may joroceed to collect the amount of any judgment, secured against a person holding a liquor tax certificate on account of any violations of this statute, from the sureties on the bond, and it is not necessary before an action is brought upon the bond, that an execution be issued against the person holding the liquor tax certificate. This bond is to be executed by at least two sureties, residents of the town or city in which the premises are, where such traffic is to be carried on, or by a coi-poration duly authorized to Issue surety bonds by the laws of this state. The form of the bond prescribed by this section does not seem to materially differ from the bond required under the old law, except that while the old bond ran to the city or town in which the licensed premises were situated, this bond is to the people of the state. SuflS.ciency of bond. — The form of the bond given should con- form as near as may be with the terms of the statute. But when- ever a bond is required by law to be given by any person, tx3 enti- tle him to any right or privilege conferred by law, or to com- mence any proceeding, it shall not be necessary for such bond OF THE State of New York. 59 § 18 The Liquor Tax Law. to conform in all respects to the form prescribed by statute, but it will be deemed sufacdent if it conform thereto substantially and does not vary in any matter to the prejudice of the rights of the party to whom and for whose benefit such bond is given. (Siiper- visors V. Pindar, 3 Lans. 11; Farley v. McConnell, 7 id. 430; Foster v. Foster, 7 Paige, 49; Ring v. Gibbs, 26 Wend. 510; Village of Warren v. Phillips, 30 Barb. 651.) The conditions of the bond are violated by any sale of liQuor contrary to the provisions of sections 29, 30 and 31, or by any other violations of this act. In determining the construction or meaning to be given to the word " disorderly " it will not do to resort to the penal code and take the definition therein given as to what would constitute a disorderly house. (People ex rel. v. Eckman, 63 Hun, 209.) In this case it was said that the sale of liquor to a minor is a disorderly act and a breach of the condition of the bond. Under this law the sale to a minor v^ould be a violation of the law and on that account a breach of the bond. If a person duly author- ized by the receipt of a liquor tax certificate allows his place to become disorderly by suffering turbulent or disorderly assem- blages on the premises, it would be a breach of this condition. (State V. MuUikin, 8 Blackf. 260.) The principal might be liable for breach of this condition of his bond, although the disturbances occurred in the street, before his premises and he did not know of such disturbances, if it appear that the persons engaged in making such disturbances came from his premises and were prior to the time seen drinking upon such premises. (Cable v. State, 8 Blackf. 531.) But if only a single instance of disorder is proved against the principal, it will not be deemed a breach of the condition of the bond. (Overman v. State, 88 Ind. 6.) If a clerk authorized to make sales, generally, and to conduct the business for his employer makes an illegal sale in the line and scope of the business, the conditions of the employer's bond are violated and the principal and sureties are liable therefor. (Boos V. State, 39 N. E. Rep. [Ind.] 239.)] § 19. The payment of the tax and issuing-of the tax certificate. — When the provisions of sections seventeen and eighteen of this act have been complied with and the ap- plication provided for in section seventeen is found to be correct in form and the bond required by section eighteen CO Excise and Hotel Laws The Liquor Tax Law. § 10 is found to be correct as to its form and the sureties tliereon are approved as sufficient by the county treasurer, or if in a county containing a city of the first class by the special deputy commissioner for such county, then upon the pay- ment of the taxes levied under section eleven of this act the county treasurer of the county, and in a county contain- ing a city of the first class, the special deputy commissioner for such county, or if the application be made under sub- division four of section eleven of this act, the state com- missioner of excise shall at once prepare and issue to the corporation, association, copartnership or person making such api^lication and filing such bond and paying such tax, a liquor tax certificate in the form provided for in this act. [Upon complying with the provisions of section 17, relating to tlie statement to be made upon the application for a liquor tax certificate and the provisions of section 18 as to the furnishing of bonds, the special deputy commissioner or the county treasurer .shall proceed at once to issue the tax certificate, which will authorize the applicant to conduct the business of trafficking In liquors. Section 23 specifies the persons, corporations or associations who shall not traffic in liquors, and section 24 mentions the places where such traffic will not be permitted. In determining whether or not a person is entitled to a tax certificate it is not only neces- sary that the provisions of sections 17 and 18 should be com- plied with, and that the persons should not Vje one of those excepted by such section 23 or the premises be precluded by section 24. It devolves upon the special deputy commissioner or the county treasurer to determine, from the knowledge which he may possess, as to whether or not the applicant can legally receive the tax certificate, or the premises are such that the business may be legally conducted therein. Except as contained in these sections, the statute seems to make it mandatory upon the special deputy commissioner or the county treasurer to issue such tax certificate. These officers are only authorized to exercise a discretion in determining^ whether the statute has been complied with. They have no right to determine whether the public interests demand the issuance of the certificates applied for, or whether the applicant is, in the knowledge of such officers, a fit person to engage in the bnsiness of traflicking in liquor. There is nothing contained in this act limiting the granting of the privileges to a person of good OF THE State of New Yobk. 61 ! 20 The Liquor Tax Law. moral character. If tie is not one of the persons mentioned in section 23 his mental or moral qualifications can not restrict his right to receive a certificate. Approval of the bond. — This section provides that the spiCCial deputy commissioner or county treasurer shall approve the bond as to its form and the sureties thereon. In other states where the statutes require the liquor dealer's bond to be approved by the officer, board or court granting the license, it has been held that they are thus Invested with a measiire of discretion and judgment, and that unless it can be shown that this discretion was unreasonable or arbitrarily exercised, or that they were actuated by improper motives in rejecting the bond they can not be compelled to attach their approval to it. (MacHenry v. Chip- pewa, 65 Mich. 9; S. C, 31 N. W. Rep. 602; Post v. Township of Sparta, 64 Mich. 597; S. 0., 31 N. W. Rep. 535; Commonwealth V. Wilson, 18 Atl. Rep. [Pa.] 601.) If there is reason to believe that the property of one of the bondsmen is insufficient, or if there is conflicting testimony as to the value of the property of the persons offered as sureties, the officer whose duty it is to approve the bond can not be compelled by writ of mandamus or otherwise to attach his approval thereto. (Palmer v. President, etc., 73 Mich. 96; S. C, 40 N. W. Rep. 850; Wolfson V. Rubecon, 63 Mich. 49; S. C, 29 N. W. Rep. 486.)] § 20. Form of liquor tax certificate.— The liquor tax certificates shall be furnislied by the state commissioner of excise to the several cotmty treasurers, and to the special deputy commissioners and shall be lithographed or engraved in a suitable manner, and on durable paper, and of the following form: $ No Series of ... (A suitable device inserted.) Series of . . . STATE OF NEW YORK. Liquor Tax Certificate. Eeceired from the sum of liollars for excise tax on the business of trafficking in liquor under subdivision of section eleven of the Liquor Tax Law. 62 Excise and Hotel Laws The Liquor Tax Law. S 20 The business to be carried on at , in the of , for the period represented by the coupon or coupons hereto attached. Dated at , 18 . . Special Deputy Commissioner for the county of or County Treasurer of County. Severe penalties are imposed for neglect or refusal to place and keep this certificate conspicuously in your place of business. Attachiid thereto on the loft as a part thereof shall bo twelve coupons, one for each month of the tax year. On the one on the extreme left shall be printed: " Coupon for liquor tax certificate number for ]M.ny, . . . .," and each coupon shall be similarly printed except as to the month. A tax certificate similar in form shall be issued by the state commissioner of excise, to those applying under subdivision four of section eleven of this act. OF THE State of New Yoke. 63 { 20 The Liquor Tax Law. O EP See ■te^ i4 O > O w < H W u X < O ° c s o <^ f^ o 00 o I ft? 13 S s s O .5- 1* § 1^ "& S !. a ?! s W ^ lO «) ^ g '!? s S 8 g i 6 i 5 S 5> I i -a s ^ a so o S Hi Coupon for MQUOR TAX CBRTJFIOATB No. for April 1897. Coupon for MQUOB TAX CERTIPICATB No. for March 1897. Coupon for MQUOB TAX CERTIFICATE No. for Feb. 1897. Coupon for tlQUOB TAX CERTIFICATE No. 1897. Coupon for I.IQUOR TAX CERTIFICATE No. for Dec. 1896. Coupon for MQUOB TAX CERTIFICATE No. for Nov. 1896. Coupon for MQUOB TAX CERTIFICATE No. for Oct. 1896. Coupon for I.IQUOR TAX CERTIFICATE No. for Sept. 1896. Coupon for I,IQUOR TAX CERTIFICATE No. for Aug. 1896. Coupon for LIQUOR TAX CERTIFICATE No. for July 1896. Coupon for MQUOB TAX CEBTIFICATE Wo. for June 1896. Coupon for I.IQUOB TAX CERTIFICATE No. for IMCay 1896, 64 Excise and Hotel Laws The Liquor Tax Law. §§ 21-2-> § 21. Posting liquor tax certificate. — Before commenc- ing or doing any business for the time for wMcli the liquor tax is paid and the certificate is given, the said liquor tax certificate shall be posted up and at all times displayed in a conspicuous place where the traffic in liquors for which the tax was paid is carried on, so that all persons visiting- such place may readily see the same, and if there be in sucli place on the same floor as the principal door of entrance, a window facing the street upon which such principal place of entrance is, such certificate shall be displayed in such ■window, so it may be readily seen from the street. It is provided, however, that when the holder of an unexpired license under the law in force prior to the passage of this act, or the holder of a liquor tax certificate under this act, shall have presented the application and bond as required by sections seventeen and eighteen of this act, and paid the tax assessed by this act, not less than fifteen days before the time fixed for the expiration of such license or tax certificate, such holder of such license or tax certificate may continue to trafiic in liquors pending the issue of the tax certificate, until notified in writing, by the ofiicer charged with the duty of issuing such tax certificate, that such tax certificate so applied for will not be issued. § 22. Restrictions on the traffic in liquors in connection with other business. — ISTo corporation, association, co- partnership or person engaged in carrying on the business of selling dry goods or groceries, or provisions, or drugs as a pharmacist, shall be assessed under subdivision one of section eleven of this act, or receive a liquor tax certificate under such subdivision, unless it be to carry on the traffic in liquors under such subdivision one at some other place entirely distinct and separate from, and not communicating with the place where, and in which, such business of selling dry goods, groceries, provisions or as a pharmacist is car- ried on. OF THE State of New Toek. 65 §§ 23-24 The Liquor Tax Law. § 23. Persons who shall not traffic in liquors, and per- sons to whom a liquor tax certificate shall not be granted — 1. iSTo person who shall have been, or shall be convicted of felony; 2. 'No person under the age of twenty-one years; 3. No person not a citizen of the United States and a resident of the state of New York; 4. No corporation or association incorporated or organ- ized under the laws of another state or country; provided however that if such corporation or association be acting as a common carrier in this state it may be granted a liquor tax certificate under subdivision four of section eleven of this act; 5. No copartnership, unless one or more of the members of such copartnership, owning at least one-half interest in the business thereof, shall be a resident of this state and a citizen of the United States; 6. No person who has had a license revoked under the laws in force immediately prior to the passage of this act by reason of a violation of such laws; 7. No person who shall be convicted for a violation of this act, until five years from the date of such conviction; 8. No corporation, association, copartnership, or person who as owner or agent carries on or permits to be carried on, or is interested in any traffic, biisiness or occupation, the carrying on of which is a violation of law, shall traffic in liquors or be granted a liquor tax certificate or be in- terested therein. § 24. Place in which traffic in liquor shall not be per- mitted. — Traffic in Uquor shall not be permitted, 1. In any building owned by the public, or upon any premises established as a penal institution, protectory, in- dustrial school, asylum, state hospital or poor-house, and if such premises be situated in a town and outside the limits of an incorporated village or city, not within one-half mile of the premises so occupied, provided there be such distance 06 Excise akb Hotel Laws The Liquor Tax Law. § 2i of one-haK mile between such, premises and the nearest boundary line of such village or city; nor 2. Under the provisions of subdivision one of section eleven of this act, in any building, j'ard, booth or other place which shall be oh the same street or avenue and within two hundred feet of a building occupied exclusively as a clu.rch or a school-house; the measurements to be taken from the center of the nearest entrance of the build- ing used for such church or school to the center of the nearest entrance of the place in which such liquor traffic is desired to be carried on; provided, however, that this prohibition shall not apply to a place which is occupied for a hotel, nor to a place in which such traffic in liquors is actually lawfully carried on when this act takes effect, nor to a place which at such date is occupied, or in process of construction, by a corporation or association which traffics in liquors solely with the members thereof, nor to a place within such limit to which a corporation or association trafficking in liquors solely with the members thereof when this act takes effect may remove; provided, however, sucla place to which such corporation or association may so re- move, shall be located within two hundred feet of the place in which such corporation or association so traffics in liquors when this act takes effect. [Subdivision 1 is a re-enactment of section 34 of chapter 401 of the Laws of 1892, providing that no liquors should he bought, sold or given away upon the premises used and established as a jail, penitentiary, house of refuge, protectory, juvenile reformatory or poorhouse, to or for the use of an Inmate or person confined therein. Subdivision 2 is a substitute for section 43 of the old law and is the same in substance, except that In that section, the pro- hibition did not apply to a person licensed prior to the passage of that act to sell liquors. See People ex rel Cairns v. Murray, quoted below, as to the judicial construction of such language. Jleasurements, how made. — Under the old law it was held that the measurement of two hundred feet is to be taken from the principal entrance of the church to the main entrance of the saloon, and not to the entrance of the building in which such saloon is situated. (St. Thomas' Church v. Board of Excise, 49 N. Y. St. Rep. 367.) OF THE State of New Yoek. 67 § 24 The Liquor Tax Law. In Massachusetts the statute provides that " no license shall be granted for the sale of intoxicating liquors In any building or place on the same street, within four hundred feet of any building occupied in whole or in part by a public school." In Commonwealth v. Jones, 142 Mass. 573, it was held that the dis- tance Is to be determined by measuring the nearest point of each house to the other, without any other measurement, and that where one or both buildings are set back from the line of the street, with walks leading to them, the true measurement is not by the line of the street and walks, but in a direct line from one house to the other. What constitutes a church. — A building occupied by the " Florence Mission," an association directed to the reformation of fallen women, and not organized in connection with any other church, and no clergyman or pastor associated therewith, is not a building " occupied exclusively as a church," within the mean- ing of the statute. (People ex rel v. Dalton, 9 Misc. Rep. 249; S. C, 60 N. y. St. Rep. 648; 30 N. Y. Supp. 407.) EfEect of exception as to places formerly licensed.— The ques- tion arose under section 43 of the act of 1892, chapter 401, as to whether a licensee having the right to continue his business within the prohibited limit could transfer that right to another. In the case of People ex rel. Cairns v. Murray, 148 N. Y. 171, the court said in regard to the provisions contained in the old law; " When the act went into effect there doubtless were cases where parties were engaged in the saloon business in cities at places within two hundred feet of a school. It was thought to be harsh and unjust to break up their business and drive them away when their annual license expired, and hence the purpose was to except them from the sweeping terms of the prohibition. We may safely assume that there were places, within the prohibited limit, when the act was passed, that had been leased and fitted up at considerable cost for the purpose of conducting the saloon business. In such cases the power to renew the license, from time to time, was left with the board; but when the licensee, who was thus established when the law took effect, abandoned the business, the prohibition became absolute as to all new applicants. The language is not entirely clear, but the thought Intended to be expressed evidently was that, after the law took effect, no person should be licensed to keep a saloon within two hundred feet of a church or school, except a person who had been Ucensed for that purpose and at that place previous to its 68 Excise xkd Hotel Laws The Liquor Tax Law. i 24 passage, and whose license was in force when the law was enacted." The court in this case also said: "A building erected and used for the purpose of a school is not given any other character than that of a schoolhouse, by the mere fact that the teachers, or some of them, reside in It." In construing the provision in the old law. Judge Pryor said, in the case of People ex rel. Gentilesco v. Board of Excise, 27 N. Y. Supp. 983: "It is the du.ty of the judges to make such a con- struction as should suppress the mischief and advance the remedy. (1 Kent's Comm. 465.) The obvious purpose of the enactment is to seclude the church and the school-room from the baneful proximity of the saloon, a beneficent policy to which, by a liberal construction of the law, the courts should be auxiliary." The theory of these decisions seems to be that the exceptions contained in that act did not protect the pjace licensed, but the person holding the license. As long as the person holding the license saw fit to occupy the place within the two hundred feet limit, and continue the traffic in liquors therein, he could do so. But no other person, by transfer of such license or otherwise, under such decision, will be allowed to conduct such a busiuoss in such place. As to the effect this decision will have upon the present hnv this may be said: this section relates to the places in which the traffic in liquor shall not be permitted, and the prohibition therein contained does not apply to a " place which is occupied as a hotel, nor to a place in which such traffic in liquors is actually lawfully carried on wheu this act takes effect." It may be then that a liquor tax certificate may be issued to the ])er.-ion occupying such place so excepted, notwithstanding the opinion of the court of appeals expressed in interpreting the old law. The legislature with a knowledge of that decision, in this new enactment, changed the wording of the provision, but retained the principle; the effect is to show an Intent different from that expressed in the old law, as interpreted by the court of appeals. By expressed terms the new provision Is made to apply to places excepted from the prohibition. The courts prior to its enactment had decided that the old statute excepted the persons only; the legislature, by this new enactment, have expressed an intent that it should apply to the place. This intent can not be disregarded, and, therefore, the decision of the court of appeals in People ex rel. Cairns v. Murray, supra, can not be deemed applicable to this exception.] OF THE State of New York. 69 I 25 The Liquor Tax Law. § 25. Surrender and cancellation of liquor tax cer- tificates — If a corporatioii, association, copartnership or person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act shall voluntarily, and before arrest or indictment for a violation of this act, ceasr to traffic in liquors during the term for which such tax is paid, such corporation, association, copartnership or person may surrender such tax certificate to the ofiicer who issued the same or to his successor in office, who shall there- upon cancel the same and refimd the pro rata amount of _ the tax paid for the unexpired term of such tax certificate, provided that such tax certificate shall have at least one month to run at the time of such surrender; and provided further, that such refunding shall be for full months com- mencing with the first day of the month succeeding the one in which such certificate is surrendered, unless such surrender be on the first day of the month; or if a cor- poration, association or copartnership holding a liquor tax certificate shall be dissolved, or a receiver or assignee be appointed therefor, or a receiver or assignee of the property of a person holding a liquor tax certificate be appointed during the time for which such certificate was granted, or a person holding a liquor tax certificate shall die during the term for which such tax certificate was given, such cor- poration, association, copartnership or receiver or assignee, or the administrator or executor of the estate of such per- son, or the person or persons who may succeed to such business, may in like manner surrender such liquor tax cer- tificate; or they may continue to carry on such business, upon such premises, for the balance of the term for which such tax was paid and certificate given, with the same right and subject to the same restrictions and liabilities as if such persons had been the original applicants for and the original owners of such liquor tax certificate, and not otherwise; but the liquor tax certificate under which such business is car- ried on shall have written or stamped across the facB of the same, over the signature of the officer who issued the same or his successor in office the words " (here insert the name of the person) is permitted to traffic in liquor as (here insert the representative capacity whether as assignee, VO Excise and Hotel Laws The Liquor Tax Law. § 26 receiver, executor, administrator or otherwise) of the orig- inal owner of this certificate for the unexpired tenu thereof." [This is a new section; although under the old law (L. 1892, chap. 401, § 25), the license was transferred upon the death of the licensee to his personal representatives, and they were author- ized to carry on the business licensed for the balance of the term of such license. This section provides for the surrender and cancellation of the liquor tax certificate and a refunding of the pro rata amount of the tax paid for the unexpired term of such certificate. If the corporation, association or copartnership is dis- solved and a receiver or assignee appointed therefor, or a receiver or assignee of the property of a person holding a liquor tax cer- tificate be appointed, such receiver or assignee may surrender the certificate or carry on the business for the balance of the term, upon payment of an additional tax of ten dollars as provided in section 27, and receiving the indorsement of the officer granting the original certificate. There was no provision made under the old law for the continuance of the business by a receiver or assignee appointed under such circumstances, except by a transfer of the license made by the permission of the board of excise.] § 26. Changing the place of traffic. — If a corporation, association, copartnership or person, having paid a tax and holding a liquor tax certificate, shall desire to transfer to and carry on such business for which the liquor tax cer- tificate was issued in other premises than those designated in the original application, and in the tax certificate, but in the same city or town, and in premises where such trafiic is not prohibited by this act, upon the making and filing of a new application and bond in the form and as provided for in sections seventeen and eighteen of this act and the presentation of the tax certificate, the officer who issued the same or his successor in office, shall write or stamp over his signature across the face of the certificate the words, " The traffic in liquors permitted to be carried on under this certificate is hereby transferred from (here insert the description of the original locality) to (here insert the de- scription of the new locality)." [Section 26 of chapter 401 of the Laws of 1892 provided for a transfer of a license by permission of a board of excise from one place to another upon the payment of an additional license fee OF THE State of New York. T1 § 2T The Liquor Tax Law. of not less than ten or more than thirty dollars. Under this section such change can be made hy filing a new application and hond upon the payment of an additional tax of ten dollars as prescribed by section 27.] § 27. Voluntary sale of a liquor tax certificate. — The corporation, association, copartnership or person to whom, any liquor tax certificate is issued, may sell, assign and transfer such liquor tax certificate during the time for which it was granted to any corporation, association, co- partnership or person not forbidden to traffic in liquors under this act, nor under the subdivision of section eleven under which such certificate was issued, who may thereupon carry on the business for which such liquor tax certificate was issued upon the premises described therein, if such traffic is not prohibited therein by this act, during the bal- ance of the term of such tax certificate, with the same rights, and subject to the same liabilities as if such cor- poration, association, copartnership or person were an original applicant for such certificate and the original owner thereof, upon the making and filing of a new application and bond by such purchaser in the form and as provided for by sections seventeen and eighteen of this act, and the presentation of the tax certificate to the officer who issued the same or to his successor in office, who shall write or stamp across the face of the certificate over his signature the words " consent is hereby given for the transfer of this liquor tax certificate to (and here insert the name of the corporation, association, copartnership or person to whom the same is ' transferred)." For each indorsement under sections twenty-five, twenty-six and twenty-seven of this act, the officer making the same shall charge and receive the sum of ten dollars to be paid by the applicant, which sum shall be apportioned and accounted for as are taxes, as pro- vided in sections thirteen and fourteen of this act. [Section 26, subdivision 2 of chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1803, provided for the sale, assignment or transfer of a license during the term for which it was granted, upon the payment of an additional fee of not less than ten nor more than thirty dollars. The above section is not 72 Excise and Hotel Laws The Liquor Tax Law. $ 28 materially changed, except as is made necessary by the new method of licensing. A contract to sell, assign or transfer a tax certificate would be legal and would only need the sanction of the officer granting the original certificate to render it effectual. It was held under the old law, in the general term of the court of common pleas of the city of New York, that the existing excise laws of the state distinctly grant and recognize a licensee's right to sell and transfer his license to another, subject to the approval of the board of excise; and, upon the completion of the transfer, the sum agreed to be paid therefor might be collected and the contract enforced. (Rubenstein v. Kahn, 5 Misc. 408.) Upon the compliance ^^ith the provisions of this section. It Is mandatory upon the proper officer to attach his consent to the certificate. There is no discretionary power vested in him. This was different under the old law.] § 28. Certiorari upon refusal to issue or transfer liquor tax certificates, and of the revocation and can- cellation of a liquor tax certificate. — Whenever any of- ficer charged with the duty of issuing or consenting to a transfer of a liquor tax certificate under the provisions of this act shall refuse to issue or transfer the same, such oflBcer shall indorse upon the application therefor, or attach thereto a statement of his reasons for such determination, and shall, if requested, furnish to the applicant a copy of such statement. Such applicant shall have the right to a writ of certiorari to review the action of such officer. The writ may he issued by, returnaljle to, and heard by a county judge of the county, or a justice of the supreme court of the judicial district in wliich the premises are situated in which the applicant desires to carry on the business of trafficking in liquors. If the writ be granted, the officer to whom it is directed shall in his return thereto, include copies of all the papers on which his action was based, and a statement of his reasons for refusing to grant such application. If such judge or justice shall upon the hearing determine that such application for a liquor tax certificate or for a transfer has been denied by such officer without good and valid reasons therefor, and that under the provisions of this act such liquor tax certificate should be issued, such judge or OF THE State of jN'ew YoitK. 73 § 28 The JLiquor Tax Law. justice may make an order commanding such otficer to grant sucJi application and to issue a liquor tax certiticate to such applicant upon the payment of the tax therefor. At any time after a liquor tax certificate has been granted to any corporation, association, copartnership or person in pursu- ance of this act, under subdivisions one, two or three of section eleven, any citizen of the state may present a verified petition to a justice of the supreme court or a special term of the supreme court, of the judicial district in which such traffic in liquors is authorized to be carried on, or in which the holder of such certificate resides, or if such holder of a liquor tax certificate is authorized to traffic in liquor under subdivision four of section eleven of this act, to a justice of the supreme court of the judicial district in which the principal office within this state of the corporation, copart- nership or association is located, for an order revoking and cancelling such certificate, upon the ground that material statements in the application of the holder of such cer- tificate were false, or that he is not entitled to hold such certificate. Such petition shall state the facts upon which such allegations are based. Upon the presentation of the petition, the justice or court shall grant an order requiring the holder of such certificate, and the officer who granted the same, or his successors in office, to appear before him, or before a special term of the supreme court of the judicial district, on a day specified therein, not more than ten days after the granting thereof. A copy of such petition and order shall be served upon the holder of such certificate, and the officer granting the same, or his successors in office, in the manner directed by such order, not less than five days before the return day thereof. On the day specified in such order, the justice or court before whom the same is returnable shall hear the proofs of the parties, and may, if deemed necessary or proper, take testimony in relation to the allegations of the petition, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice or court. If the justice or court is satisfied that material statements in the application of the holder of such certificate were false, or that the holder of such cer- 10 74 Excise and Hotel Laws The Liquor Tax Law. § 28 tificate is not entitled to hold such certificate, an order shall be granted revoking and cancelling such certificate. The decision of such justice or court shall be final and conclu- sive, and no appeal therefrom shall be had or taken. Upon the entry of such order in the county clerk's office of the county in which the traffic in liquors is authorized to be carried on under the certificate so revoked, and filing a copy thereof with the officer who issued such certificate, or his successor in office, and the service of a certified copy thereof upon the holder of said liquor tax certificate, or such sub- stituted service as the court or justice may direct, all the rights of the holder of said liquor tax certificate under such certificate, to traffic in liquors or to any rebate thereon under this act, shall cease. Costs upon such proceedings may be awarded in favor of and against any party thereto, in such sums as in the discretion of the justice or court before which the petition is heard, may seem proper. [See Forms. The remedy by a writ of certiorari was first applied to refusals to grant licenses, by chapters 480 and 481 of the Laws of 1893, amending section 24 of the old excise law. Under the old excise law, the powers of the boards of excise in the different localities was discretionary, and thereunder no person had an absolute legal right to demand a license to sell intoxicating liquors. In the case of People ex rel. v. Waters, 4 Misc, 1; S. C, 53 N. Y. St. Rep. 718; 23 N. Y. Supp. 689, the court said: "The legislature can not assign to the supreme court, or the justices thereof, the performance of duties devolved upon boards of excise for the reason that it would require such court or its justices to perform other than judicial duties, nor will it be presumed that the legislature intended to transcend its powers. The proceeding in this statute (L. 1893, chap. 480) is called a writ of certiorari. It Is, however, in the nature of a mandamus. A writ of certiorari never issues except in the case of an absolute right. If there is no such right to a license it follows that the court can not gi'ant the mandatory order compelling the gi-anting of the license." This case would not be deemed applicable to the provisions in this law relating to such writ. The theory of the law is, that upon making the statement required and giving the bond provided for, it is mandatory upon the county treasurer or deputy commissioner to issue the liquor tax certificate. Under such provisions, there- OF THE State of New York. 15 § 28 The Liquor Tax Law. fore, it seems that a writ of certiorari is the proper writ, since It issues for the purpose of reviewing the acts of the officer whose duty it is to issue the liquor tax certificate. Having no discre- tionary powers, the only errors which such ofiicers can make are errors of law, which are properly reviewable by the court. Under the old law it was held that where it appears that the action of the board vyas based on a misapprehension of the law, amounting to a legal error, since the board did not consider an application upon its merits, as it was their duty to do, the matter must be sent back to them for their consideration and determina- tion. (Martin v. Symonds, 4 Misc. 6; S. C, 53 N. Y. St. Eep. 724; 23 N. Y. Supp. 695.) The provisions of tlie old law did not require the court to exer- cise secondarily the same powers as boards of excise and go into the facts and reasons upon which they took action, but merely to pass upon assigned errors of law. (People ex rel. v. Bennett, 4 Misc. 10; S. C, 53 N. Y. St. Rep. 724; 23 N. Y. Supp. 695.) In that case, it Avas held that a return which stated that the board considered the application on the merits and refused to grant it for the reason, among others, " that a license is not needed in that hotel, and that the sale of intoxicating liquors thereat would result injuriously to the community," shows a legal exercise of discretion and determination, which will not be interfered with, since it might be that a sufficient number of places in the town had already been licensed. This is not applicable to the present law, since the officers whose duty it is to issue tax certificates, can not exercise such discretion. But where the reasons given by such officers for their refusal to issue or transfer the liquor tax certificate are not in accord- ance with the provisions of this law, their action may be reviewed and if the court finds that such reasons are not sufficient, and that such officers commit legal error in refusing to issue such certifi- cate, an order may be granted compelling such officer to grant the application, and to issue the liquor tax certificate upon the appli- cant's paying the amount of the tax. Eevocation and cancellation of a liquor tax certificate.— Under the old law (L. 1892, chap. 401, § 42), the boards of excise were empowered to hear complaints of any resident of a city or town, alleging violations of the excise laws, and if satisfied that such law had been violated, under section 28 of that act, they could revoke any license granted by them in certain specified cases. By this section of the present law, any citizen of the state may, Excise and Hotel Laavs The Liquor Tax Law. § 29 t>y petition to a justice of ttie supreme court, secure an order revoking and cancelling a liquor tax certificate upon the ground that material statements in the application of the holder of such certificate were false or that he is not entitled to hold such certificate. The statements to be made upon the application for a liquor tax certificate are contained in section 17 (ante, p. 5.5). The per- sona not entitled to a liquor tax certificate are specified in section 2.3 (ante, p. 6.")). Among the persons not entitled to receive a liquor tax certificate are those convicted for a violation of this act, and " any corporation, association, copartnership or person who carries on a business in violation of law." By section 27 of the old excise law it was provided that the conviction of a licensee of a felony or for selling adulterated liquors, etc., should in itself effect the immediate revocation of the license of the person so convicted. By section 34 of the present law (post, p. 100), the holder of a liquor tax certificate forfeits such certificate upon conviction of certain offenses against this law. This section contemplates the revocation of a license by the court where misstatements are made by the applicant, or where he is not a proper person, under section 23, to receive such certificate. If a person is convicted of illegal selling under section 31 of this law, by section 34 his punishment is provided for, but such conviction does not act ipso facto as a forfeiture of the liquor tax certificate. Upon such con- viction ho becomes a person not entitled to hold a liquor tax certificate under section 23, and for sucli conviction his certificate may be canceled by an order of the court, as provided in this section. It was held under tlie old law that in proceedings to revoke a license the licensee was not entitled to a trial by jury (People ex rel. v. Wright, 3 Hun, 306), and that a cancellation without a trial by jury is not in contravention of the constitution preserving such right. (People v. Commissioners, etc., 59 N. Y. 92.)] ? 20. Injunction for trafficking in liquor without liquor tax certificate. — If any ccTporation, association, copartner- ship or pPT?on shall unlawfully tratiic in liquor without ohtaining- a liquor tax certificate, as proAided by this act, the state commissioner of excise, tlio deputy commissiouer, special deputy commissioners, special agents or, except in ooimtius containing a city of the first class, the county treas- OF THE State of !N"ew Yoek. 17 § 29 The Liquor Tax Law. urer of tlie county in which the principal office of such corporation, association or copartnership is located, or in ■whioli such person resides or traffics in liquor, may present a verititd petition to a justice of the ?upreme court or .i s])ecial term of the supreme court of the judicial district in which such county is situated, for an order enjoining such corporation, association, copartnersbip or person from traf- ficking in liquor thereafter. Such petition shall state the facts upon which such allegations arc based. Upon the ju-esentation of the petition, the justice or court shall grant an orde]' rcpiiring such corporation, association, copartnei'- ship or person to appear before him, or before a special term of the supreme court of the judicial district, on the d:xy specified therein, not more than ten days after the granting thereof, to show cause why such corporation, asso- (.'iatiou, copartnership or person should not be permanently enjoined from trafficking in liquor, until a liquor tax cer- tificate has been obtained, in pursuance of law. A copy of such petition and order shall be served upon the corpora- tion, association, copartnership or person, in the manner directed by such order, not less than five days before the return day thereof. On the day specified in such order, the justice or court, before whom the same is returnable, shall hear the proofs of the parties, and may, if deemed necessary or proper, take testimony m. relation to the alle- gations of the petition, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice or court. If the justice or court is satisfied that such cor- poration, association, copartnership or person is unlawfully trafficking in liquor without having obtained a liquor tax certificate as provided by this act, an order shall be granted enjoining such corporation, association, copartnership or per- son from thereafter trafficking in liquor, without obtaining a liquor tax certificate. If, after the entry of such order in the county clerk's office of the county, in which the principal place of business of the corporation, association, or copartnership is located, or in which the person so en- joined resides or traffics, and the service of the copy thereof upon such corporation, association, copartnership or person. Excise and Hotel Laws The Liquor Tax Law. § 29 or such substituted servic^e as tlie court may direct, sucii corporation, association, copartnership or person shall in violation oL' such order traftic in liquor, such traffic shall be deerued a contempt of court and punishable in the man- ner provided by the code of civil procedure. Costs upon tlie apjdicatton for such injunction may be awarded in favor of, and against the parties thereto, in the discretion of the justice or court, before which the petition is heard. If awarded against the people of the state of New York, such costs shall be payable by the county treasurer, special deputy or state commissioner, upon the certificate of such justice or court, out of any moneys which may be in his hands, or that may thereafter come into his hands, on ac- coimt of the tax provided for by this act; and the decision of the justice or court thereon shall be final and conclusive, and no appeal shall be had or taken. [See Forms. This section is new. There never has existed in the laws of this state a remedy by injunction restraining the sale of liquor without a license. It is a unique provision and can not be found In the statutes of any other state. The object of it Is to provide a means for preventing the sale of liquors without a liquor tax certificate in an expeditious manner. If the person continues the illegal sale without such a certificate, in disobedience to the order of the court restraining such sale, he is liable for a contempt of court. Without this provision the only way in which a person can be prevented from such illegal sale is by a summary arrest and conviction for a violation of this act. It was thought that the criminal courts might be burdened with proceedings for the con- viction of such offenses and that by means of this proceeding, a person continuing the illegal traffic in liquors could be quickly restrained. The person against whom the order issues has no right to appeal therefrom, and the decision of the justice or court thereon is final. There is nothing In this section which expressly cuts off the right of a party in contempt of court who has been convicted for such contempt, under the code of civil procedure, from appealing from the action of the court imposing such fine. As to whether such a person would be entitled to the right of appeal in such a case is questionable, and in any event an appeal therefrom would profit him little.] OF THE State of New Yoek. ' Y9 § 30 The Liquor Tax Law. § 30. Persons to whom liquor shall not be sold or given. — - ]^o corporation, associatioa, copartnership or per- son, whether taxed under this act or not, shall sell or give away any liquors to: 1. Any minor under the age of eighteen years; 2. To any intoxicated person; — - — ^3. To any habitvial drunkard ;-" 4. To ;;ny Indian; 5. To any person to whom such corporation, association, copartnership or person may be forbidden to sell by notice in writing from the parent, guardian, husband, wife or child of such person over sixteen years of age, or by a magistrate or overseer of the poor of the town; provided, however, that such notice in writing by a magistrate or overseer of the poor of the town shall apply only in the case of a person who is wholly or partly a charge upon the town, which fact shall be stated in such notice. 6. To any person confined in or committed to a state prison, jail, penitentiary, house of refuge, reformatory, pro- tectory, industrial school, asylum or state hospital, or any inmate of a poor-house, except upon a written prescription Jrom a physician to such institution, specifying the cause lor which such prescription is given, the quantity and kind of liquor which is to be furnished, the name of the person for whom and the time or times at which the same shall be furnished. Such prescription shall not be made unless the physician is satisfied that the liquor furnished is neces- sary for the health of the person for whose use it is pre- scribed, and that fact must be stated in the prescription. [See Forms. Subdivisions 1 and 5, inclusive, of this section, are contained in subdivisions 5 and 6 of section 32 of Laws of 1892, chapter 401. Subdivision 6 was included in part in section 34 of such law. The decisions of the courts under the old law relating to sales to certain persons may be here applied. Sales to minors.— Under the old law. It was illegal to sell liquor to any child actually or apparently under the age of slxteei) years. By this section the limit is extended to eighteen years, and there is no qualification as to the appearance of the minor. As to whether under such change the burden of showing that a 80 Excise and Hotel Laws The Liquor Tax Law. § 30 defendant knew, or had reason to believe, that the person to whom the sale was made was under the age of eighteen years, is upon the plaintiff, is a question to be determined. Under the old law, it was held that such burden was upon the plaintiff. (Perr.Y v. Edwards, 44 N. Y. 223.) Under this subdivision, since the statute does not expressly make the knowledge of the purchaser's minority an element of the offense of selling liquor to him, it may be doubtful as to whether the ignorance of the minority of such purchaser would be a defense. The courts of other states, where a similar statute is in existence, have differed in their enunciation of the principle to be applied in such cases. If the sale is made in the reason- able and honest belief that the purchaser was over the age pre- scribed in the statute, although actually under such age, in most of the states it is held that he is not liable to criminal prosecu- tion. The doctrine upon which this principle rests is, that. there can be no criminal liability without a criminal intent. In the case of Faulks v. People, 39 Mich. 200; S. C, 33 .Am. Kep. 374, the court said: " It can not be assumed that the legislature would attempt such .a wrong as to punish us criminal an act which involves no criminal intent. There can be no crime where there is no criminal mind. This principle is as old as the criminal law and underlies the whole of it." In Bishop on Statutory Crimes, section 1022, it is said: "The result is that one whom the law permits to sell intoxicating liquor, and whose purpose and endeavor it is to conform to the law in all things and to do no wrong of any sort, is legally, the same as he is morally, justified in acting, like other people in respect to other things, on what, upon careful investigation and inquiry, appeared to be the facts; so that if, believing the appearances, he does what would be legally and morally right, were the real facts so, he is not punishable though he was deceived, and they were different. Thus, if one authorized to sell liquor to adults and forbidden to minors is, without his fault or carelessness, led to believe an applicant to be an adult, while truly he is a minor, he is not punishable, though he makes the sale — a proposition which some deny." In support of this principle may be cited the following cases: State V. Kalb, 14 Ind. 404; Farbach v. State, 24 Ind. 77; Goatz v. State, 41 Ind. 162; Thinger v. State, 53 Ind. 251; Robison v. State, 63 Ind. 235; Payne v. State, 74 Ind. 203; Hunter v. State, 101 Ind. 241; Kreamer v. State, 106 Ind. 192; S. C, 6 N. E. Rep. 341; Mul- reed v. State, 107 Ind. 62; S. C, 7 N. E. Kep. 884; Ross v. State, OF THE State of New York. 81 § 30 The Liquor Tax Law. 116 Ind. 495; S. C, 19 N. E. Rep. 451; Rich v. State, 63 Ga. 616; People V. Welsh, 71 Mich. 548; S. C, 39 N. W. Rep. 747. But in all such cases it seems to be incumbent upon the de- fendant to show that he exercised due care to ascertain the age of the minor and chat he honestly believed, on creditable informa- tion, that the purchaser was beyond the age prescribed in the statute. (Mulreed v. State, 107 Ind. 62.1 The contrary doctrine is held in a number of cases in several of the states. (State v. Kinkead, 57 Conn. 173; S. C, 17 Atl. Rep. 855; Oomm. v. Uhrig, IBS Mass. 492; Comm. v. Barnes, id., 511; In re Carlson, 127 Pa. St. 330; S. C, 18 Atl. Rep. 8; Redman v. State, 36 Ark. 58; S. C, 38 Am. Rep. 24; State v. Kane, 9 W. Va.. 559; McKutcheon v. People, 69 111. 601; Farmer v. People, 77 111. 322; State v. Thompson, 74 Iowa, 119; S. C, 37 N. W. Rep, 104; State v. Bruder, 35 Mo. App. 475; State v. Hartfiel, 24 Wis. 60.) In Massachusetts recently a decision was made that a sale of intoxicating liquor to a minor in good faith, and in the belief that the minor is an adult, because he appeared of full age, is no defense where the statute forbids the sale to a minor or any other person. (Oomm. v. Gould, 158 Mass. 499.) In answer to the argument that if the accused did not know that the person was a minor, he could not have intended a crime, the supreme court of Connecticut, in the case of State v. Kinkead, 57 Conn. 173; S. C, 17 Atl. Rep. 855, said: "This argument is specious, but it is hardly sound. We have no occasion to impute to the legislature an intention to make an ax;t a crime, irrespective of the intent; for it is competent for the legislature to supply the Intent by making circumstances equivalent thereto. It has virtually said that if a licensed person allows one, who may or may not be a minor, to loiter on his premises without using means to ascertain the fact, he shall be guilty of the offense, if the person proves to be a minor." In Arkansas, it has been held: "That a proprietor's belief, honestly entertained, that a minor to whom he sells liquor with- out the consent of his parent or guardian is of full age, will not justify or excuse him, but will mitigate his punishment." (Cramp- ton V. State, 37 Ark. 108; Pounders v. State, 37 Ark. 39.) The fact that a sale to a minor was authorized by the parent or guardian of such minor is no defense to an indictment for selling intoxicated liquors to such minor. (State v. Lawrence, 97 N. O. 492; State v. Clotter, 33 Ind. 409; Grespel v. State, 32 Ohio St. 167; Boatright v. State, 77 Ga. 717; Adler v. State, 55 Ala. 16.) 11 82 Excise and Hotel Laws The Liquor Tax Law. § 30 Where the sale Is made to an adult, and liquor is furnished by such adult to a minor, according to some authorities, the seller can not be charged with giving away liquor to the minor. (Kerry v. State, 79 Ind. 488.) In Illinois, under a statute prohibiting the selling or giving of intoxicating liquor to a minor, it was held that the sale of three glasses of beer to an adult by a saloon-keeper, the adult paying therefor, and giving one of the glasses to a minor who drinks the same, did not make the seller liable, although the minor may have furnished the money with which to procure the beer, the seller having no knowledge to that effect, and there being nothing to lead him to suspect that such is the case. It is not material that the barkeeper saw the minor present and understood that he was to participate in drinking the beer. In such case he Is letting the minor have liquor and is not guilty of either selling or giving liquor to a minor. The court says that the word " sell " will not be construed to mean something different from its ordi- nary legal import, and we can, therefore, understand a pro- hibition against persons selling to minors, to extend to those who, in legal estimation, occupy the position, and are under all the obligations of contractors with minors. (Siegel v. People, 106 111. 84.) But the contrary doctrine is held in the courts of several of the states upon the theory that although the third person was primarily the donor, the liquor seller acted in concert with him, and participated In the transaction by furnishing the liquor at the third person's direction. All persona who participate in an act or transaction which is a misdemeanor are alike guilty. (Topper V. State, 118 Ind. 110; S. C, 20 N. E. Kep. 699; Paige v. State, 84 Ala. 446; S. C, 4 South. Rep. 697.) Sales to intoxicated persons. — A person is intoxicated in a legal sense when he is so far under the influence of intoxicat- ing liquor that his passions are visibly excited or his judgment im- paired. (State V. Pierce, 65 Iowa, 85; S. C, 21 N. W. Rep. 195; Comm. V. Trimball, 150 Mass. 89; S. C, 22 N. E. Rep. 439; Elkin v. Buschner, 16 Atl. Rep. 102.) It is held in many states that the question of the seller's knowledge of the condition of the purchaser is not material. It is no defense to say that he did not know that the purchaser was intoxicated. (Church v. Higgin, 44 Iowa, 482; Comm. v. Julius, 148 Mass. 132; S. C, 8 N. E. Rep. 898; Whitton v. State, 37 Miss. 379.) OF THE State of ITew Yoek. 83 § 31 The Liquor Tax Law. Sales to habitual drunkards. — ^An habitual drunliard is one who is in the habit of getting drunk, or that frequently is drunk; but not necessarily one who is constantly or universally drunk. (11 Am. & Eng. Enc. of Law, p. 705, citing among other cases: Mahone v. Mahone, 19 Cal. 626; Harrison v. Healy, 120 111. 83; Murphy v. People, 90 111. 60; Comm. v. Macnamee, 112 Mass. 286; Ludwick V. Comm., 18 Pa. St. 174.) A barkeeper who sells liquor to a third person with knowledge that a person of intemperate habits is to join in the drinking of it, and permits such intemperate person to drink the liquor tn his presence, is guilty of the offense. (Walton v. State, 62 Ala. 177.) To constitute the offense, it is not necessary that the seller should have a knowledge of the buyer's habits of intemperance, and ignorance or mistake of facts in that regard is no defense to an indictment. (Barnes v. State, 11 Conn. 398; State v. Ward, 75 Iowa, 637; S. C., 36 N. W. Rep. 765; State v. Heck, 23 Minn. 549.) In Pennsylvania, in the case of Comm. v. Zelt, 138 Pa. St. 615; S. C, 21 Atl. Rep. 7, it was said by the court: " That if the sale be contrary to law, the intent is immaterial. We are of opinion that selling liquor to persons of known intemperate habits comes within the same rule as selling to minors; that is, the intent is not material. It is urged that such a rule would work injustice. That in many instances a man's intemperate habits are known to but few persons, perhaps only to members of his own family, or other persons who have witnessed his convivial wanderings toward his home. The answer to this is, that a man who conceals his habits does not come within the class. It is only when his intemperance has become so con- spicuous as to form a habit, and that habit is known, not merely to his family, but to his friends ajad neighbors ajid the com- munity in which he lives, that the law forbids and punishes the sale of liquor to him."] § 31. Other illegal sales and selling. — It shall not be lawful for any corporation, association, copartnership or person which, or who, has not paid a tax as provided in section eleven 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 less than five wine gallons at a time; nor, without having paid such tax and complied with the provisions of this act, to sell, offer or 84 Excise abd Hotel Laws The Liquor Tax Law. i 31 expose for sale, or give away liquor ia any quantity what- ever, any part of which is to be drunk on the premises of such vendor or in any outbuilding, booth, yard or gardeli 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 before five o'clock a. m. on Monday; or b. On any other day between one o'clock and five o'clock in the morning; or c. On the day of a general or special election, or city election or town meeting, or village election, within one- quarter of a mile of any voting place, while the polls for such election or town meeting shall be open; or d. Within two hundred yards of the grounds or premises upon which any state, county, town or other agricultural or horticultural fair is being held, unless such grounds or premises are within the limits of a city containing one hun- dred and fifty thousand inhabitants or more; 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; or f. To permit any girl or woman not a member of his family, to sell or serve any liquor upon the premises; or g. To have open or unlocked any door or entrance from the street, alley, yard, hallway, room or adjoining premises to the room or rooms where any liquors are sold or kept for sale during the hours when the sale of liquors is for- bidden, except when necessary for the egress or ingress of the person or members of his family for purposes not for- bidden by this act; or h. To have during the hours when the sale of liquor is forbidden any curtain, screen or blinds, opaque or colored glass, that obstructs the view from the sidewalk, alley, or road in front of, or from the side, or end of the building, of the bar or place in such building where liquors are sold or kept for sale; or OF THE State of N'e-w Yoek. 85 8 31 The Liquor Tax Law. i. Tor the holder of a liquor tax certificate under sub- division four of section eleven to sell liquor except to pas- sengers in actual transit; but the provisions of clauses " a," " b," " c," and " d " of this section are subject to two ex- ceptions, as follows: 1. The holder of a liquor tax certificate under subdivisions two or three of section eleven of this act who is a regularly- licensed pharmacist, may sell liquor upon the prescription of a physician, which prescription shall be preserved by the vendor and pasted in a book and be but once filled, and that only on the day when dated and given, and such liquor so sold shall not be drunk on the premises where sold, or in any outbuilding, yard, booth or garden appertaining therete-«T connected therewith, and provided further that the physician gi^'ing such prescription, shall not be the pharmacist himself, nor a member of the corporation, asso- ciation or copartnership selling such liquor, nor in his or their employ; and 2. The holder of a liquor tax certificate under subdivision one of section eleven of this act who is the keeper of) a hotel, may sell liquor to the guests of such hotel, except to such persons as are described in clauses one, two, three, four and five of section thirty of this act, with their meals, or in their rooms or apartments therein, but not in the bar- room or other similar room of such hotel; (the term hotel as used in this act shall mean a building or place which is regularly kept open for the feeding and lodging of guests and in which there shall be at least ten furnished bedrooms for their occupancy if situate in any city, incorporated vil- lage, or within two miles of the corporate limits of either; and at least six bedrooms is situate in any other place). [See Forms. Sales without a tax certificate.— The first part of this section is the same in substance as section 31 of chapter 401 of the Laws of 1892, except that It is herein provided that without such liquor tax certificate, no person shall offer or expose for sale or give away liquors in any quantity less than five gallons at a time. The old law only made it a misdemeanor to sell such liquors. A violation of this part of this section is made a misdemeanor by 86 Excise and Hotel Laws The Liquor Tax Law. § 31 subdivision 2 of section 34 (post, p. 100). The evident intent of this provision is to prohibit the sale or giving away of liquor by any pierson engaged in the business of traflScking in such liquors. The wording of the section, strictly construed, would seem to prohibit the giving away of liquors by any person, and might be held to include a giving of liquor by a host to his guest, or even to a minister of the gospel who gives wine to the communicant at the altar. It is not probable that such a construction would ever be given to this provision. The language used must be taken in a general sense and not literally. The provisions of this law, as of all other liquor laws, are aimed at a proper and judicious regulation of the traffic in intoxicants, and should be applied to the business of trafficking in liquors, and not to the use of liquors by persons in their social and other relations with each other. In the state of Iowa, where the liquor laws are as stringent, if not more so than in any other state, it is held to be no offense to give liquor to an adult person, who is not intoxicated or in the habit of becoming so, when such gift is without consideration received or expected in return, and without subterfuge or attempt to evade the provisions of the statute. (State v. Hutchings, 74 Iowa, 20; S. C, 36 N. W. Eep. 775.) Under the old statute, prohibiting the sale of liquor without a license, each sale constituted a separate offense, and the ac- quittal of the defendant on the charge of selling on or after a certain date is no bar to an indictment and conviction for a sale made prior thereto. (People v. Sinell, 131 N. Y. 571.) What constitutes an illegal sale. — A sale of liquor by a de- fendants' clerk, with their knowledge, renders them liable to prosecution. (Hall v. McKechnie, 22 Barb. 244.) One who re- tails liquors at an unlicensed house can not evade the penalty by showing that the tavern was owned by his wife, and that he sold as her agent. (Commissioners v. Dougherty, 55 Barb. 332; Commissioners v. Keller, 20 How. Pr. 280. And see Hasbrouck V. Weaver, 10 Johns. 247.) In a civil action for a penalty imposed by the old statute, for selling liquors without a license, it was held that a sale by an agent in the shop of his principal, or by a servant In the shop of his master, was prima facie a sale by the principal or master. (Overseers of Poor v. Kail, 20 Wkly. Dig. 33.) This rule is probably good in a criminal action to punish the offender under this section. In a civil action to recover a penalty for Illegal OF THE State of New Yoek. 87 § 31 The Liquor Tax Law. sales without a license, evidence that sales were made by the ' / husband of the defendant as her agent is enough to charge the ( defendant. (Amerman v. Kail, 34 Hun, 126.) ' But the mere sale of liquor in a building owned by the defend- ant will not sustain a conviction for selling without a license, where the store in which the sale was made was carried on by defendant's son, who sold the liquor, and it does not appear that the defendant had any interest in the store, or that the son acted as his agent. (Ripley v. Little, 19 Wkly. Dig. 165.) Evidence that a person was furnished with a half-pint bottle and twenty-five cents, and requested to get some whisky; that he went to the defendant's drug store where the bottle was filled and taken away by him, bat what occurred in the store did not appear, defendant being a practicing physician and keeping whisky in his store for the purpose of preparing and compound- ing medicines, was not sufficient evidence of a sale to sustain a recovery for selling without a license. (Horton v. Parsons, 40 Hun, 224.) ^ Where the defendant was the proprietor of a hotel and it was shown that her bartender sold liquors without a license and without her consent, and the receipts were passed over to the defendant, it has been held that under such circumstances the defendant would be liable, even if the sale was made against her express direction. (Austin v. Carswell, 67 Hun, 579, citing Smith V. Reynolds, 8 id. 128; Keedy v. Howe et al., 72 111. 133; George v. Gobey, 128 Mass. 289; Amerman v. Kail, 34 Hun, 127.) A license from the United States government for the sale of intoxicating liquors is not a protection for sales made without a license, contrary to a state statute. (State v. Downs, 21 S. E. [N. Car.] Rep. 689.) A single sale of intoxicating liquor by one who has no license is a violation of the statute. (Lewis v. Comm., 90 Va. 843; S. 0., 20 South. Rep. 777.) ' A druggist having no license to sell intoxicating liquors can not sell them for use as a beverage, even though they are com- pounded with other ingredients into medicines, which he knovrs are purchased for use as a beverage or for the sake of their intoxicating properties and not because of their medicinal virtues. (Davis v. State, 18 S. E. Rep. [Ga.] 998.) One who permits another to keep liquors in his house with the knowledge that they are to be sold contrary to law, may be convicted for maintaining a place for the illegal sale of liqUor, 88 Excise and Hotel Laws The Liquor Tax Law. § 31 although he, himself, did not intend to sell them. (Oomm. v. Lynch, 160 Mass. 198.) Proof of license.— In an action for the price of liquors sold by retail, a license need not be proved; it will be presumed. (Smith V. Joyce, 12 Barb. 21.) In an action for a penalty for selling without a license, the burden of showing a license is on the defendant. (Potter v. Deyo, 19 Wend. 36; New York v. Mason, 4 E. D. Smith, 142; S. C, 1 Abb. Pr. 344.) An indictment for selling liquors without a license need not allege specifically the want of license, but an allegation that he sold without a license is sufiScIent; so It is not necessary for the prosecution to prove non-license; the burden of proving the existence of a license is on the defendant. (Jefferson v. People, 101 N. Y. 19.) Liquors sold without a license. — One who sells liquor without a license can not recover against the purchaser. (Griffith v. Wells, 3 Den. 226.) Nor are profits arising from an unlicensed liquor trade recoverable. (Lynch v. Dowling, 1 Rob. C. C. 163.) It Is a good defense to an action on a promissory note that It was given for the price of spirituous liquors sold by the payee without license. (Turck v. Richmond, 13 Barb. 533.) A seller can not avoid liability by showing that he acted as agent for another person who had no license to sell at the place in question. (Board of Excise v. Dougherty, 55 Barb. 332.) The taking of an order for a case of beer in a place where no licenses are granted, and filling such order in another place, where the vendor was authorized to sell. Is a violation of the statute. (People v. Capen, 26 Hun, 377.) Furnishing liquor by social clubs. — Under this section, the question arises, as to whether or not a social club, organized In good faith for the purposes of entertainment and for social inter- course, can lawfully furnish liquor to the members of such club, as a part of the entertainment which It provides for them. This same question arose under the provisions of the old law and there Is nothing contained in this act which changes in any way the application of the established rules. The court of appeals In this state has never directly passed upon the question. In the case of People v. Andrews,- 115 N. Y. 427, the court held, that where a person, acting as agent or steward of an Incorporated association formed for social pur- poses, upon the request of a member thereof, delivers to a person not a member, liquors belonging to the association, and receives pay therefor, although from the member, the transac- OF THE State of New Yokk. 89 § 31 The Liquor Tax Law. tlon constitutes a sale without a license, and is in violation of the excise laws. The facts in this case seem clearly to show that the organization of the so-called social club was an attempt to evade the statute. In that case the defendant had oocupied certain iiremises as a saloon, and had been refused a license by a board of excise. His front room was used for a fruit, con- fectionery and tobacco store; back of that was a room partitioned off and contained a bar, table and chairs. He claimed to use the front room for his own private business and leased the back room to the so-called " "Valley Social Club." He was steward of the club, purchased the liquors in the name of the club, and had entire charge of the business; and he and his employes sold the liquors by the drink and otherwise and received payments there- for. It is doubtful whether the decision of the court in this case would be applied to a bona fide social club, organized for the sole purposes of entertainment and with no Intent of securing profit or gain from the selling or furnishing of Intoxicating liquors. Tie courts in other states are by no means unanimous In their decisions upon this question. In the leading English case, where it appears that the manager of an Institution, conducted In good faith as a club, under rules by which Its members pay an en- trance fee and subscriptions; and that trustees were appointed, In whom all the club property was vested, and there was a com- mittee of management for whom the manager acted; and the manager, in the course of his employment as manager, supjplled intoxicating liquors to members at fixed prices, including a certain advance upon the cost, the money produced thereby going to the general funds of the club, it was held that he did not sell liquor by retail within the meaning of the licensing act and was not liable to conviction. (Graff v. Evans, L. R., 8 Q. B. Div, ;J73.) This same rule is applied in Massachusetts on a similar state- ment of facts. (Comm. v. Pomphret, 137 Mass. 564; S. C, 50 Am. Rep. 340; Comm. v. Ewlg, 145 Mass. 119; S. C, 13 N. E. Rep. 365; Comm. v. Geary, 146 Mass. 139; S. C, 15 N. E. Rep. 363.) In the case of Commonwealth v. Pomphret, just above cited, the club was organized with a select limited number of members, duly elected officers, the purpose being to furnish refreshments to those who belonged to It. A salaried steward was employed; one dollar was charged for admission and checks were sold for five cents apiece. It was held that buying the liquor and dis- tributing It among the members was no violation of the statute, 12 90 Excise and Hotel Laws The Liquor Tax Law. 8 HI The court said: " One inquiry always is, whether the organiza- tion is bona fide a club with limited membership, into which admission can not be obtained by any person at his pleasure, and in which the property is actually owned In common with other members." In Missouri, under a statute similar to this section, the supreme court in the case of State v. St. Louis Club, 28 S. W. Rep. 604, it was held, where a social club is a bona fide organization, with a limited membership and admission into which can not be ob- tained by any person at pleasure, and its property is actually owned in common by its members, that the distribution of wine or other liquors belonging to such club among its members, is not a sale of liquor at retail within the meaning of the statute, although technically the act does amount to a sale. In Maryland, in the case of Seim v. State, 55 Md. 566; S. C, 39 Am. Rep. 419, the court said: "The society is not an ordinary corporation, but a voluntary association or club united for social purposes. Bach member must be elected, and each is joint owner of the property and assets, and entitled to the privi- leges of the society so long as he remains a member. Among those privileges is that of partaking of the provisions and re- freshment provided for the use of the members. These are not sold to him by the corporation, but furnished to him by the steward, upon his paying into the common fund what Is equiva- lent to the cost of the article furnished, and what is so paid is expended in keeping up the supply for the use of the members. Such a transaction is not a barter or sale in the way of trade, and, therefore, not within the meaning or purview of the act." In Tennessee, a club, organized for social purposes, and dls- Piosing of liquors to its members, was held not to be subject 1o taxation as a retail liquor dealer. The court in the case of Tennessee Club v. Dwyer, 47 Am. Rep. 298, said: " It can not be controverted that the organization would have a right to purchase and keep liquor at its club-room for the use of its members and distribute it among them, in any method it might deem proper, and to raise funds for the purpose of replenishing, by assessment, upon the members, and the mode adopted of the form of the sale to its members alone of such a quantity for so much money, can be nothing more than a mode adopted of assessing each member in proportion to the amount he consumes, and can not be distinguished in principle from that adopted of issuing checks to each member, which entitles him to so much liquor, according to the amount of money he contributes." OF THE State of !N"ew Yoek. 91 5 31 The Liquor Tax Law. Most of the cases decided In the courts of the several states, contrary to the opinions held In the cases above cited, are not applicable to societies or clubs, organized in good faith, and with- out Intent to evade the law. Thus, in Iowa, in the case of State V. Mercer, 32 Iowa, 405, which apparently rules against the right of a club to furnish liquor to its members, it will be found, upon closer scrutiny, that the sole object of the club was to supply its members with intoxicating liquors to be used as a beverage, and that the defendant had in his possession the liquors used, and sold tickets to persons, who thus became members of the club, which were exchanged for, or given in payment of, intoxi- cating liquor, drank in the defendant's house, by the members of the so-called club presenting the tickets. The court character- ized this scheme as a " rather clumsy device by which the de- fendant and members of the social club hoped to defeat the law, and establish a place of resort where they could be supplied with Intoxicating liquors for unlawful use." The fundamental principle involved in all these cases seems to be that the furnishing of liquor by social dubs to their mem- bers, the number of which is limited, is not the conducting of a business In the traflOlc in liquors, for the regulation of which excise laws are enacted. In the case of Commonwealth v. Pomphret, 137 Mass. 564; S. C, 50 Am. Rep. 340, the supreme court lays down the rule as fol- lows: " It Is well known that clubs exist which limit the num- ber of the members and select them with great care, which own considerable property in common, and in which the furnishing of food and drink to the members for money is but one of many conveniences which the members enjoy. If a club were really formed solely or mainly for the purpose of furnishing intoxi- cating liquors to its members, and any person could become a member by purchasing a ticket which would entitle the holder to receive such intoxicating liquors as he called for, upon a valua- tion determined by the club, the organization Itself might show that It was the intention to sell intoxicating liquors to any person who offered to buy, and the sale of what might be called a temporary membership In the club with a sale of liquors, would not substantially change the character of the transaction. One inquiry always Is, whether the organization is bona fide a club, with limited membership., into which admission can not be ob- tained by any person at his pleasure, and In which the property Is actually owned In common, with mutual rights and obliga- tions which belong to such common ownership, under the consti- 92 Excise a^td Hotel Laws The Liiquor Tax Law. $ 31 tutlon and rules of the club, or whether either the form of a club has been adopted for other purposes, with the intention and understanding that the mutual rights and obligations of the mem- bers shall not be such as the organization purports to create, but a mere name has been assumed without any real organization behind it." In opposition to the principle here stated we will cite the case of Commonwealth v. Tierney, 178 Pa. St. 552, where it was held that the furnishing of liquor by the steward of an unlicensed club to a member who pays for a drink a price exceeding its cost, is a sale, and the steward may be convicted of selling liquor with- out a license, although the liquor is bought by the club and the receipts from its sale are paid into the club treasury. And also the case of United States v. Giller, 54 Fed. Rep. 656. In this case, the officers and agents of an incorporated benevolent society, at a picnic held by it, took beer upon the grounds and distributed It only to such members as first bought a ticket from the asso- ciation. It was held that the association was guilty of retailing malt liquors without a license within the federal statute pro- hibiting it. But the court remarks that if the beer had been bought previous to the picnic, by the association at large, and the assessment based upon the proportion taken or consumed by each member of the organization, the case would be different, and It would not amount to a sale in violation of the statute. In this connection there may also be cited the case of People V. Bradley, 33 N. Y. St. Rep. 562, and People v. Luhrs, 7 Misc. 503, which held that the steward of an incorporated club or association serving liquors to members or others, who pay for them, is liable to criminal prosecution where neither he nor the club have a license. But in both these cases, the incorporated olubs were not organized with the sole purpose of furnishing entertainment to their members and guests, but the facts showed that they were transacting a business in the traffic in liquors, and were organized mainly for that purpose. Sale on Sunday. — The sale of intoxicating liquors on Sunday was prohibited by section 32, subdivision 1 of chapter 401 of the Laws of 1892. The cases decided under that act and under section 21 of chapter 628 of the Laws of 1857, which was repealed by the latter law, are applicable to this section. Under the old law (§ 21 of Laws 1857, chap. 628) it was held that a sale of liquors on Sunday by an unlicensed dealer was not punishable; it could only be punished as a selling without a license. (People v. Page, 3 Park. 600.) The contrary was, how- OF THE State of New York. 93 § 31 The Liquor Tax Law. ever, held in the case of People v. Murphy, 5 Park. Cr. Rep. 130. Selling on Sunday either with or without a license is a crime ias formerly. If sold on Sunday without a license, the seller can be prosecuted for either offense. f,To convict a licensed tavern keeper of the offense of selling liquors at his bar on Sunday there must be proof of an intent on his part to violate the statute; it is hot enough to rebut the presumption that the sale was made on the premises by his barkeeper, if he was not present or shown to have assented to it; whether he assented or not is for the jury. People V. Utter, U Barb. 170. , Hotelkeepers and innkeepers have a right to sell spirituous liquors to their guests on Sunday to be used with their meals. Matter of Breslin, 45 Hun, 310. The prohibition is aimed at the indiscriminate sale of liquors at the bar or saloon connected with the hotel, and not to furnishing wines and liquors to guests in entertaining them. Idem. An indictment which contains a count for selling liquors on one Sun- day is demurrable if it contains another count for selling liquors on another Sunday. People v. Harmon, 49 Hun, 558; afld. in 113 N. Y. 666. Upon a trial of an indictment for selling liquor on Sunday, where a witness for the prosecution testified that he bought liquor in defend- ant's saloon on Sunday, and that two other gentlemen were there, it was improper to exclude, on cross-examination, the question as to whom the witness saw there. People v. Fitzgerald, 37 N. Y. St. Repr. 595. Under an ordinance imposing a penalty for selling liquor and exposing liquor for sale on Sunday, but one penalty could be imposed for the same offense, not one for exposing for sale and another for selling. BrooTclyny^. Toyribee, 31 Barb. 383. According to the laws of Pennsylvania it is unlawful for any p,erson with or without licenses to furnish by sale, gift or otherwise, to any person any spirituous, etc., liquors on Sunday. It was held that this did not prohibit the use of liquors by a private citizen, on his own table on Sunday or make it a misde- meanor to furnish them to his family or his guests in his own house. The " furnishing " that is made punishable is an evasion of the laws forbidding sales. (Comm. v. Gary, 150 Pa. St. 368.) Sales after lawful hours.— A similar provision was contained in section 32, subdivision 2 of chapter 401 of the Laws of 1892, except that in that law a special license might allow him to sell between 1 and 5 o'clock. A requirement of this kind is per- emptory and the courts are not at liberty to admit exceptions to its terms, nor will they listen to excuses for its violation. (Black on Intoxicating Liquors, § 432.) Under the act of 1857, chapter 628, it was provided that a license "shall not authorize any person to expose for. sale spirituous liquors on any day between the hours of 1 and 5 94 Excise and Hotel Laws The Liquor Tax Law. § 31 o'clock in tlie morning. It was tield under tliat law, that the licensee could not keep open between those hours, selling liquor in connection with meals furnished to the participants In a bail, although it has long been the custom so to do. (In re Whitney, 3 N. Y. Supp. 38.) Sale on election day. — ^A provision similar to this was contained in section 32, subdlvialon 3 of chapter 401 of the Laws of 1892. The only change is in prohibiting the sale on days of city or Tillage elections. In discussing a statute similar to this, the supreme court of Indiana says: " The object and purposes of the statute is to prevent elections from being influenced by the use of Intoxicating liquors, and to put it beyond the power of any person to secure an election to office by the use or influence of intoxicating liquors. (State v. Hirsch, 125 Ind. 207; S. C, 24 N. E. Rep. 1062.) Sales near fair grounds. — Subdivision 1 of this section was contained in section 32, subdivision 4 of chapter 401, Laws of 1892, and prevents the sale of liquors near agricultural fair grounds during the time that such grounds are being used for holding an agricultural fair. This subdivision in the old law was held to prohibit the sale of intoxicating liquors on the grounds of a state, county, town or other agricultural fair association, when a fair was being held thereon. (Atty-Gen. Rep., 1892, p. 170.) A place where the industrial products of the people in agri- culture, manufactures and the arts are received and placed on exhibition, and an award made for excellence, is an agricultural fair, within the meaning of the statute, although a profit is derived therefrom. (State v. Long, 28 N. E. Rep. [Ohio] 1038.) The prohibition applies to a permanent place within the limit, and a person who sells thereat, during the time that a fair is being held, is liable. (Heck v. State, 44 Ohio St. 536.) Adulterations; free lunches.— The provision contained in this section, relating to adulterations, was not contained in the old excise law. For further provisions relating to adulterations of beverages see Laws 1893, chap. 661, art. Ill, post, p. 116. Under the regulations established by the excise law of 1892 there was nothing to prevent the furnishing of food by licensees to their customers. In the conduct of the business of liquor selling, the supplying of free lunches has become almost universal. The legislature, in its wisdom, concluded that this was an evil, and adopted this provision to prevent it. There can, probably, be no doubt as to the legislature's right to impose this restriction. It is within their power of regulating the liquor traffic. OF THE State oe New Yobk. § 31 The Liquor Tax Law. Section 4 (ante, p. 28) provides that all existing licenses shall continue in force until their expiration or until June 30, 189(3, if they do not expire before that time, " and the rights and liabilities of the holders thereof during such term shall be gov- erned by the laws in force immediately prior to the taking efCect of this act, except as otherwise expressly provided in this act." As to whether persons transacting a liquor business under licenses saved by such section 4, can continue to serve free lunches, is a question which admits of no small degree of doubt. Corporation Counsel Scott, of New York city, has declared that this section, as a whole, applies to the holders of all licenses granted under the old law and continued by this act. Barmaids. — Subdivision f was in substance contained in chap- ter 360 of the Laws of 1892, which is repealed by this act. It is doubtless a reasonable and proper exercise of the legislative power to regulate the traffic in liquors, to prohibit the employ- ment of women in places where liquor is sold. (Bergman v. Cleveland, 39 Ohio St. 651.) But in California an act forbidding women to be in saloons after a certain hour at night was de- clared unconstitutional, under a provision in the constitution of that state which provides that no person shall be disqualified by sex from pursuing any lawful vocation. (In re Maguire. 57 Cal. 604; S. C, 40 Am. Hep. 125.) Doors to be closed and locked during certain hours. — Subdi- vision g is a new provision. Under it all doors entering the place where liquors are sold must be closed and locked during such hours as the statute prohibits the sale of liquor, except those used solely by the person taxed or members of his family. Screens. — Subdivision h is new. There can be no doubt of the legislature's right to Impose this restriction. A similar statute exists in many of the states, notably Massachusetts, Ohio and Michigan. In the latter state the court said: "Were the provisions of such a statute sought to be applied to one's dwelling, or to any place where any useful business, profession, trade or occupation Is carried on it would be unconstitutional; but the business of selling intoxicating liquors is one which the legislatures have an undoubted right to regulate or prohibit, and they have, therefore, the power to impose such conditions and restrictions upon the sale as In their judgment may seem wise, where such restrictions are applied to all alike or to the same class alike, (Robison v. Hang, 71 Mich. 38; S. C, 38 N. W. Eep. 668.) A similar statute in the state of Massachusetts was declared constitutional in the cases of Comm. v. Costello, 133 Mass. 192, and Comm. v. Casey, 134 Mass. 194. 96 Excise aud Hotel Laws The Liquor Tax Law. § 31 Black on Intoxicating Liquors says, In regard to a statute similar to this: " The power to thus subject a class of persons to police surveillance must be based upon a very strong ground of public necessity, but it can hardly be denied that the exigency is sufficient to justify the measure adopted." The offense consists in obstructing a view of the bar or place where liquors are sold or kept for sale from the sidewalk, alley or road in front or at the side or end of the building. It is im- material then what person may have influenced the party in putting up the screens or curtains complained of, if, in fact, they do obstruct the view. (Oomm. v. Moore, 145 Mass. 244; S.- 0., 13 N. E. Rep. 893.) This subdivision only provides that the bar or place in such building where liquors are sold shall be in view. The Massa- chusetts statute provides that there shall be no obstruction to a clear view of the interior of the premises. Under that statute it was held that the placing of a curtain which interferes with the view of any part of the interior, whether such part is used for the sale of liquor or not, is a violation of the statute. (Comm. V. Wooster, 141 Mass. 58.) This case will hardly be held appli- cable in this state. If blinds are so placed that a person can only look into the room and see the bar by stooping and peeping through the slats of the blinds, such blind would be held to obstruct the view of the bar and would be contrary to this statute. (Oomm. v. Costello, 133 Mass. 192.) It is no defense to a prosecution for a violation of this provision, that an illegal act was done In the defendant's absence by his servant. (Comm. v. Kelly, 140 Mass. 441.) The Massachusetts statute is broader In Its terms than this. It provides that " no screen, curtain or other obstruction shall be so placed as to prevent a clear view of the interior of the prem- ises." This subdivision specifies curtain, screen or blind, opaque or colored glass, and if strictly construed would not apply to the use of other obstructions. It is probable, however, that the use of any device, other than these mentioned, in order to defeat the object of the law, will be deemed a violation of the statute. But even under the Massachusetts act it was held that a partition between the front and rear room where a license is to sell both In the front room and rear room, although such wall obstructs the view into the rear room, is not a violation of the statute. (Comm. V. Barnes, 140 Mass. 447.) In Ohio, where a local ordinance prohibited saloon-keepers from permitting any blind, screen, painted or frosted glass, shade, curtain or other device to obstruct the view of the interior of OF THE State of New York. § 31 The Liquor Tax Law. their saloons the words " other device " were held not to include a board partition between different rooms of a building, such partition extending from floor to ceiling, fastened in the usual manner and intended by the owner, when he placed it in the building as a permanent accession to the realty. (Shultz v. Cambridge, 38 Ohio St. 659.) In view of all the decisions which have been made in other states, Avherc similar statutes are in existence, it seems that thi3> statute will not compel the owners of premises holding liquor tax certificates, to remove permanent partitions in existence at. the time the liquor tax certificate was issued, and the existence- of such partitions would not be sufficient to deprive an applicant of the right to receive such certificate. In addition to the cases already cited, which would seem to uphold this doctrine, we will cite: Comm. v. McGrath, 140 Mass. 296; Comm. v. Donahue, 140 Mass. 450; Comm. v. Kane, 143 Mass. 92.) Sales by druggists. — The provisions in this section relating to sales on Sunday or between 1 and 5 o'clock in the morning of any other day, or on the day of an election or within two hundred yards of the grounds of an agricultural association, do not apply to a pharmacist or druggist to whom has been granted a liquor tax certificate authorizing him to sell upon the prescription of a pihyslcian. This exception only allows licensed pharmacists to sell liquor for medical purposes. It prescribes that a prescrip- tion of a physician is necessary before a sale can be made at any time. But if this prescription is known by the druggist to have been given for the purpose of enabling the purchaser to secure intoxicating liquors to be used as a beverage, the spirit of the law would be violated, even if it did not amount to a violation of the letter of the law. It would be no defense to an. indictment for illegal selling, that the liquor was called for and. sold for medical uses unless there was a prescription as required by this act. (Barton v. State, 99 Ind. 89; State v. Hendricks, 98 Mo. 374; S. C, 11 S. W. Rep. 728.) A druggist who furnishes soda to a person who has procured- intoxicating liquors outside of his drug store, and who mixes and drinks such liquors with the soda, is not guilty of furnishing intoxicating liquors to such persons, although he knows that the whisky is being drunk; but he is guilty where he or his clerk furnishes soda under such circumstances to several persons, one- of whom has procured the whisky of him. (State v. Clark, 29- Atl. Rep. IVt.l 461.) 1:3 93 Excise and Hotel Laws The Liquor Tax Law. § 32 In Massachusetts it was held under a statute similar to this, that the mere probability that liquors sold by a druggist are to be used for the purpose which the law forbids, is not suffi- cient to justify his conviction for illegal selling. There must be negligent conduct and other circumstances attending the sale, from which the jury may infer a knowledge on his part that the liquor was to be used for an illegal purpose. (Comm. v. Joslin, 158 Mass. 482; S. C, 33 N. E. Rep. 334.) Sales by hotel-keepers. — Hotel-keepers may sell liquor to their guests on Sunday and election day or on any other day between the hours of 1 and 5 in the morning to be drunk with their meals or in their rooms or apartments, but the bar-room or other similar room in a hotel can not be open on such days. In this section the term " hotel " is defined. There was no similar defini- tion contained in the old excise law. § 32. Sales and pledges ; when void. — No recovery shall be had in any civil action, to recover the purchase price of any sale on credit of any liquor, to be drunk on the premises, where the same shall be sold. All securities given for such debts shall be void. Any person taking such security, with intent to evade this section, shall for- feit double the sum intended to be secured thereby, recover- able by the county treasurer or in a county containing a city of the first class by the special deputy commissioner for such county, in a civil action, and to be disposed of in the same manner as are liquor taxes collected under this act. Every assignment, sale or pledge of articles or prop- erty exempt, by law, from execution, and every levy or sale of such articles or property by virtue of an execution by consent of the defendant therein, shall be void, where the consideration, or any part thereof, for which such assign- ment, sale or pledge was made, or for the debt on which judgment was rendered in any court and on which such execution was issued, was for the sale of liquors. [The first part of this section is taken from the first part of •section 40 of chapter 401 of the Laws of 1892. The latter part, relating to the assignment and sale of certain kinds of property, etc., was formerly contained in Laws of 1842, chapter 157, section 3.] OF THE State of New York. 99 § 33 The Liquor Tax Law. § 33. Persons liable for violation of this act. — Any person engaged in tlie traffic in liquors, whether as officer of a corporation, or association, or as a member of a copart- nership, or an individual, shall upon conviction of a viola- tion of any of the provisions of this act be liable for and suffer the penalties imposed therein; and any clerk, agent, employe or servant shall be equally liable as principals for any violation of the provisions of this act, and each violation of any of the provisions of this act shall be construed to constitute a separate and complete offense, and for each violation on the same day, or on different days, the person or persons offending shall be liable to the penalties and forfeitures imposed by this act; and in the following section providing for penalties and forfeitures when corporations or associations are referred to, and penalties and forfeitures are imposed thereon, the same shall be understood to mean and apply to the officers of such corporation or association. [This is a new section. It is a legislative enunciation of the principle laid down in the case of People v. Sinell, 131 N. Y. 571, where it was held that each violation of an excise law constituted a separate offense, and an acquittal on a charge of illegal selling on and after a certain day was no bar to an indictment and conviction for a violation prior to that time. This section also prescribes that any clerk, agent, employe or servant violating the provisions of this act are guilty as principals. Black on Intoxicating Liquors, section 368, says: "It is a recognized principle of criminal law that the master is respon- sible for the criminal acts of his servant or agent, done within the scope of the latter's general employment, or in the course of the work authorized by the master, unless shown to be done without the knowledge and consent, or against the orders of the master; and that the master is answerable for such acts done by the servant or agent, whether in or out of his proper and usual employment, when done by the master's command, or with his knowledge and consent." This section does not change this principle. If an employe of a person engaged in the traffic in liquors violates the law, with the knowledge and consent of his employer, the employer is still liable, but in addition to that, by this section, such employe is also made personally liable and he 100 Excise and Hotel Laws The Liquor Tax Law. § 34 can be prosecuted. The clause imposing liability in violations of the act upon agents and employes is an enunciation of the doc- trine held in most of the states.] § 34. Penalties for violations of this act. — 1. Any cor- poration, association, copartnership or person trafficking in liquors, who siiall 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 mis- demeanor, 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 temi of not more than one year; 2. Any corporation, association, copartnership or person, who shall make any false statement in the application re- quired to be presented to the county treasurer or other officer to obtain a liquor tax certificate, or to obtain a trans- fer thereof, or who shall violate the provisions of this act by trafficking in liquors, contrary to the provisions of sec- tions sixteen, twenty-two, twenty-three, twenty-four, thirty or thirty-one shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than five hundred dollars or by imprisonment in a county jail or penitentiary for a term of not more than one year, or by both such fine and imprisonment, and shall forfeit the liquor tax certificate, and be deprived of all rights and privileges thereunder, and of any right to a rebate of any portion of the tax paid thereon, and such certificate shall be surrendered to the officer who issued it, or to his suc- cessor in office who shall cancel the same; but this clause does not apply to violations of section thirty-one of this act the punishment for which is provided for in the first clause of this section. 3. If there shall be two convictions of clerks, agents, employes, or servants of a holder of a liquor tax certificate for a violation of any provisions of this act, the liquor tax OF THE State of New Yoek. § 34 The Liquor Tax Law. certificate of the principal shall be forfeited, and said prin- cipal shall be deprived of all rights and privileges there- under, and of any right to any rebate of any portion of the tax paid thereon, and such certificate shall be sur- rendered to the ofiicer who issued it or to his successor in office, who shall cancel the same. 4. No liquor tax certificate shall be issued to any person so convicted within five years from the date of such con- viction, nor shall any such person have any interest therein, or become a surety on any bond, required under section eighteen of this act, during such period. [This section prescribes the penalty for violations of the act, and as compared with the punishment prescribed in the old excise law is very severe. By section 36 of chapter 401 of the Laws of 1892, violations generally of the excise law were made misdemeanors and punishable na such. By subdivision 1 of this section, a sale without a liquor tax certificate is made a misdemeanor, and may be punished by a fine of at least twice the amount of the tax which should have been paid by the person making such sales, and shall not exceed the sum of two thousand dollars, and in addition to this, such person may be imprisoned in the county jail or penitentiary for a term of not more than one year. By subdivision 2 a person making false statements in order to secure a tax certificate, or violating generally the sections of this act, regulating the sale of liquors, may be punished as for a misdemeanor, and by a fine of not more than five hundred dollars, and in addition shall forfeit his liquor tax certificate and be deprived of all privileges there- under. By subdivision 3 two convictions of clerks, agents, employes or servants of a holder of a liquor tax certificate, will act as a forfeiture of such certificate. It is probable that the violations here intended are those made without the connivance or consent of the principal. If such violations were with the knowledge and consent of the principal, the prosecution should be directed toward him. Many of the cases deciding questions arising under the old law relating to the prosecution and conviction of persons alleged to have violated such law can be made applicable to this law. 102 Excise and Hotel Laws The Liquor Tax Law. § 34 Indictment for illegal sales without a license. — In an indictment for selling spirituous liquors without a license it is not necessary to specify the names of the persons to whom the sales were made. People v. Adams, 17 Wend. 475. An indiptment charging such offense to have been com- mitted on a certain day, and also on divers other days, Is good; the latter averment may be rejected as surplusage. Idem. An indictment charging that the defendant, on a certain day, and on divers other days, did sell by retail to divers persons to the jurors unknown, strong and spirituous liquors, to-wit, three gills of brandy, three gills of rum, three gills of gin, etc., is good. It does not charge distinct offenses so as to put the prosecution to an election. Osgood v. PeopU, 39 N. Y. 449. But an indictment charging a sale of liquors without a license, on four different occasions and to different persons, was held demurrable on the ground that it charged more than one crime. People v. O'Donnell, 46 Hun, 358. Under an indictment for selling liquors without a license the defendant cannot be convicted on proof that he had a storekeeper's license, anj sold liquors to be drank on the premises in violation thereof. Muffstater v. People, 5 Hun, 33; People v. Bxiffum, 37 id. 316. Nor under an indictment charging the sale of liquors without a license can a licensed innkeeper be convicted of selling liquor on Sunday to be drank upon the premises. People v. Brown, 6 Park. 666. But a con- viction may be had notwithstanding the proof does not show the sale to have been made on the day laid in the indictment, and it appears the sale was made on a Sunday, although as to that day there is a special provision of law. People v. Krank, 110 N. Y. 488. And a person guilty of a sale on Sunday without a license would be liable to indictment for either offense, but a conviction under one would bar a prosecution for the same sale under the other, although the convic- tion was had upon an indictment under the general provision charging the sale to have been on a week day. Idem. Where an indictment charges a violation by selling on May 18, 1884, and the proof is of selling on April 30, 1884, the variance is fatal. People v. Larin. 4 N Y. Cvim .'547. Proof on the trial. — In an artiou for a penalty for selling without a license, the burden of showing a licensp is on the de- fendant. (Potter v. Deyo, 19 AA'end. .36; New York v. Mason, 4 E. D. Smith, 142; S. C, 1 Abb. Pr. 344.) An indictment for selling liquors without a license need not allege specifically the want of a license, but an allegation that he sold without a license is sufficient; so it is not necessary for a prosecution to prove the want of a license. The burden of proving its e.xistence is on the defendant. (.lefferson v. People, 101 N. Y. 19.) OF THE State of !New Yoek. 103- § 35 The Liquor Tax Law. The fact that when the intoxicating liquor was sold to a minor, lie was acting for an adult and purchasing for him, is immate- rial, at least when the principal is undisclosed. (Ross v. People, 17 Hun, 591.) In the trial of an indictment for selling liquors without a license, it was held error to compel the defendant to testify that he had been arrested for keeping a disorderly house on the prem- ises over a year before, although the court stated that it received the evidence " solely for the purpose of showing proprietorship." (People V. Bradt, 46 Hun, 445.) It is competent to prove that the defendant liept a bar with bottles in it. (People v. Hulburn, 4 Den. 133; VaJlance v. Everts, 3 Barb. 553.) 'i It is no defense to an Indictment for selling without a license, that one of the defendants did the act charged, as the clerk of the other defendant and by his direction. (French v. People, 3 Park. 114.) It is immaterial whether the defendant had an interest in the liquor or was a mere agent, and whether the liquor was paid for or credit given, and whether or not defendant knew he was violating the law. (People v. Bradley, 38 N. Y. St. Rep. 562 f S. C, 11 N. y. Supp. 594.) 1 \ , § 35. Jurisdiction of courts. — Except as otlierwise pro- vided hy this act, all proceedings instituted for the punish- ment of any violation of the provisions of this act, the penalties for which are prescribed in section thirty-four, shall be prosecuted by indictment by the grand jury of the county in which the crime was committed, and by trial in a court of record having jurisdiction for the trial of crimes of the grade of a felony, except that a magistrate may issue a warrant of arrest upon information and depositions and examine the case as now provided by law, but if it shall appear upon such examination that a crime, the pen- alty for which is prescribed in section thirty-four, has been committed, and that there is suiScient cause to believe the person or persons charged with such crime guilty thereof, such magistrate may admit such person or persons to bail, in a sum not less than one thousand dollars, and in default of bail, shall commit him or them to the sheriff of the 104 Excise and Hotel Laws The Liquor Tax Law. § 36 county or if in the city of New York to the keeper of the city prison of the city of oSTew York. [By this section all proceedings instituted for the punishment of violations of this act must be by indictment and the trial must be had in a court of record. The only powers relating to such violations which are retained by justices of the peace and other magistrates in courts not of record, is the Issuing of war- rants of arrest upon informations and depositions, and such magistrates may admit the persons alleged to have violated the law, if the proof seems suflBcient, to bail in a sum not less than one thousand dollars. The result of this section will be to greatly- increase the duties of the district attorneys, and, in the largei- cities, it will so incumber the several courts of record, that the •delays will be great and the punishment of violations of the law will be greatly impeded. This is particularly so in the cities of New York and Brooklyn where, already, thousands of indict- ments are pending awaiting the action of the courts. It seems ovident that an amendment to this section will be required within a very short time, empowering other courts than courts of record, in the larger cities of the state, especially, to try charges of violations of this act.] § 36. Collection of fines and penalties and forfeitures of bonds. — Upon the conviction and sentence of any cor- poration, association or copartnership and upon the convic- tion and sentence of any person or persons whether as officer of a corporation or as a member of a copartnership or as an individual, for a violation of the provisions of this act, the penalty for which is prescribed in sections twenty- eight, twenty-nine or thirty-four hereof, the court or officer imposing the sentence, or the clerk of the court, if there be a clerk, shall forthwith make and file in the office of the clerk of the county in which such conviction shall have been had a certified statement of such conviction and sen- tence, and the clerk of said county shall immediately there- upon, enter in the docket-book, kept by said clerk for the docketing of judgments in said office, the amount of the penalty or fine and costs imposed, as a judgment against the person or persons, corporation, association or copart- nership so convicted and sentenced, and in favor of the OF THE State of New Yoek. 105 I 36 The Liquor Tax Law. state commissioner of excise, and said county clerk shall also enter in the docket of said judgment a brief statement setting forth the fact that said judgment is for a fine or penalty imposed for violation of the " liquor tax law," and said county clerk shall immediately mail or deliver to said county treasurer or special deputy commissioner for such county a duly certified transcript of said judgment. If the fine and costs imposed be paid into court, the said •officer or clerk of the court shall at once pay to said county "treasurer, or special deputy commissioner, the amount of such fine and costs, who shall give his receipt therefor, and shall, at the request of the judgment debtor, execute and deliver a satisfaction of said judgment. If said judgment shall not be paid within five days after such conviction and ^sentence, the clerk of said coimty shall issue an execution against the property of said judgment debtor or debtors, against whom said judgment is docketed, directed to the sherifE of the county, who shall forthwith proceed to collect the amount due on said judgment, together with his legal fees and costs, by levy and sale, in the manner now pro- vided by law for the collection of executions against prop- erty, of any goods, chattels, furniture, fixtures, and lease- Tiold interests, or other property of such judgment debtor or debtors, wherever found. Such levy shall take prece- dence of any and all liens, mortgages, conveyances, or in- cumbrances taken or had on such property, subsequent to the docketing of said judgment in said clerk's office, and no property of such judgment debtor or diebtors shall be exempt from such levy and sale, and all moneys collected Tipon execution under the provisions of this act shall be paid by the officer collecting the same, less his legal fees and costs thereon, to such county treasurer, or special deputy •commissioner who shall apportion and account for the same as provided by this act. In case such judgment debtor or debtors shall have given the bond provided for m section •eighteen of this act, such county treasurer, or special deputy commissioner may proceed to collect the amount of such judgment, together with the costs of collection, from the •sureties on such bond, by due process of law, and the issu- 106 Excise astd Hotel Laws The Liquor Tax Law. § 3T ing of an execution under the provisions of tMs act shall not be a condition precedent to the enforcement of the provisions and penalties of any bond given by such judgr ment debtor or debtors, pursuant to any of the provisions of this act. [This is a new section and provides a method of securing pay- ment of fines and costs imposed upon persons convicted of violations of this act, and judgment is to be entered in the oflSce of the clerk of the county in which such conviction shall have been hficl for the amount of the fine and costs, and an execution can be issued thereon against the person so convicted and sentenced in favor of the state commissioner of excise. If such conviction be for an illegal sale by a holder of a liquor tax certificate, the amount of such judgment may be collected from the sureties on the bond required to be given by such holder without proceeding under the provisions of this section to collect the amount of such judgment from the judgment debtor.] § 37. Duties of public officers in relation to com- plaints and prosecutions under this act. — It shall be the duty of the special deputy commissioners and special agents, and of every county treasurer, sheriff, deputy sheriff, police officer or constable having notice or knowledge of any vio- lation of the provisions of this act, to immediately notify the district attorney of the county in which such violation, occurs, by a statement under oath of the fact of such violation, and it shall be the duty of such district attorney when complaint on oath is made of such violation, forth- with to prosecute any person so violating any of the pro- visions of this act, and for each and every violation thereof. All officers authorized to make arrests in any city, town or village, and the special agents appointed under section ten of this act may in the performance of their duties enter upon any premises where the traffic in liquors is carried on or liquors are exposed for sale at any time when such premises are open. [It is here made the duty of the district attorney of the county upon notification by any of the officers named in this section, to immediately prosecute any person violating any of the provisions of this act. By the last sentence, all officers authorized to make- OF THE State of JSTew Yoek. lOT §§ 38-39 The Liquor Tax Law. arrests, and all special agents appointed under this act, may enter upon premises where the traffic in liquor is carried on, at any lime, when such premises are open. Section 38 of chapter 40i of the Laws of 1892 granted similar powers to such officers.]. § 38. Penalties for neglect of public officers to perform their duty under this act. — Any officer wlio shall neglect or refuse to perform his duty under the provisions of this act, shall be liable to a penalty of five hundred dollars for each and every offense, and if such officer be a county treasurer or district attorney, he shall be removed from office by the governor after hearing and determination thereon and decision that such neglect or refusal has oc- curred. Any citizen may prefer charges to the governor under this section. [This section provides for the summary punishment of officers neglecting their duties under this act and for the removal from office of county treasurers or district attorneys who neglect to perform their duties. For the procedure before the governor for the removal of public officers, see Public Officers Law, §§ 23 and 24, post, p. 143.] § 39. Recovery of damages in civil ecfon. — A recovery may be had in a civil action of the damages suffered by rea- son of the intoxication of any person, from any corporation,, association, copartnership or person who shall by selling or giving away liquors have caused such intoxication, if the person or one of the persons suffering such damage shall, previous to such selling or giving away, have given written notice to such corporation, association, copartnership or per- son, or to their agents or employes, or to the person so selling or giving away, forbidding such selling or giving away liquors to the person whose intoxication shall have caused such damage; or such damage may be recovered from any corporation, association, copartnership or person owning or renting or permitting the occupation of any building or premises where such selling or giving away of liquors shall have occurred, jointly with the corporation, association, co- partnership or person selling or giving away, or severally 108 Excise and Hotel Laws The Liquor Tax Law. § 39 when tlie notice herein provided for shall have been given to such owners or their authorized agents, and not otherwise. [Section 40 of cliapter 401 of the Laws of 1892 contained a provision similar to this. Section 2 of chapter 403 of the Laws of 1892 was also of a similar nature. This section preserves the original civil damage act, with the provision contained in the acts of 1892, that a written notice be given to the persons selling or giving away the liquor, forbidding such sale or gift, to the person whose intoxication shall have caused the damage. We here insert annotations from a few of the many cases which have been decided in this state in relation to the civil damage act. This section is not penal; it creates a cause of action for dam- ages which was unknown to the common law. Quinlan v. Welch, 141 N. Y. 158; Reinhardt v. Fritzsche, 69 Hun, 565.) Validity and intent of Civil Damage Act. — The legislature has power to create a cause of action for damages in favor of a person injured in person or property by the act of an intoxicated person, against the owner of real property leasing premises for the sale of intoxicating liquors. An enactment to such effect is not violative of the constitutional provision prohibiting the taking of private property without " due process of law " (State Const, art. 1, § 6) ; while indirectly operating as a restraint upon the absolute freedom of the use of the premises by the owner, and so impairing its value, it is not a taking within the meaning of the Constitu- tion. Bertholfy. O'Beilly, 74 N. T. -509. As the right of the legislature to restrain the sale of liquors is unques- tionable, the person taking a license is subject to all existing laws and to such as may thereafter be passed. The right given is personal, and may be wholly taken away, or it may be restricted or burdened with condi- tions or penalties, to any extent the law-making power may deem proper. It is not a contract depriving the legislature of the right to act. Baker v. Pope, 2 Hun, 556. And see Franklin v. 8chemerhm-n, 8 id. 113. The statute provides for a recovery by action for injuries to person or property, or means of support, without any restrictions whatever. Both direct and consequential injuries are included, and it was evidently intended to create a cause of action unknown to the common law and a new ground and right of action. While a statute of this character should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained. The evident object was to suppress the sale and use of intoxicating liquors, and to pun- ish those who, in any form, furnished means of intoxication by making them liable for damages which might arise, which were caused by the parties who furnished such means. Th? statute was designed to embrace and must manifestly cover and include all injuries produced by the intoxi- OF THE State of New Yoek. 100 § 39 The Liquor Tax Law. cation and wliicli legitimately result from the same. Mead v. Stratton, 87 N. Y. 493. Iiiability of seller. — The act does not apply to an injury caused out of the state by sale of liquor here, there being no allegation or proof of a similar statute in such other state. Goodwin v. Young, 34 Hun, 353. Nor is it applicable to a sale of liquor at a bar in the barroom of a steamboat on a voyage on a river within this state; such a building is not a "build- ing or premises " within the meaning of the statute. Some v. Oatskill & New York Steamboat Co., 59 Hun, 80. A.n employer is liable for the injuries caused by liquors sold by his bar- tender, although such sale may have been made without his knowledge- and against his instructions. Smith v. Beynolds, 8 Hun, 138. The seller of a small quantity of liquor in a bottle is not liable for inju- ries caused through the intoxication of third persons, for whose common use the purchaser bought it, where the seller had no reason to suppose that such third person was to share in the use of the liquor. Dudley v, Parker, 55 Hun, 229. An action will not lie against the owner of a hotel for the death of a bartender in consequence of his excessive drinking, even though the pro- prietor knew that the deceased was while in his employ frequently in a state of partial intoxication. Campbell v. Schlesinger, 48 Hun, 428. To charge a party, within the meaning of the statute, the furnishing the liquors to him must be in whole or in part the proximate cause of the- intoxication to which the injury complained of may be imputable. And for that purpose the liquor must be furnished by such party to or for the person whose intoxication is the foundation of the charge of liability for the injury. Dudley v. Parker, 183 N. Y. 386. And in an action against a seller, the claim was that the liquor was sold to a person which pro- duced his intoxication, and that while in that condition he assaulted the plaintiff, doing him serious bodily harm; it was held that it was not error for the court to refuse to charge that the acts of the defendant must be proved to be the proximate cause of the injury, since the intoxication was in this case the proximate cause. "The statute imposes an absolute lia- bility for the wrongs perpetrated by a person while intoxicated, when the- intoxication was caused in whole or in part by the defendant, and pre- cludes an examination into the further question whether or not, except for such intoxication, the injury would have been inflicted. Bacon v. Jacobs, 63 Hun, 51. liability of owner of premises. — There must be clear and satis- factory proof that the owner of the building had knowledge of the sale thereon, or permitted such sale, in order to recover from him the result- ing damages. Mead v. Stratton, 8 Hun, 148; afEd., 87 N. Y. 493. In order to render a married woman liable under the act, it is sufllcient if she owns the premises where liquor is sold, knowingly permitting her hus- band to occupy and use the same for the purpose of such sale. Mead v. Stratton, 87 N. Y. 493. 110 Excise and Hotel Laws The IJquor Tax Law. § 39 The owner of a building is charged with the knowledge of his agent to rent, and he is liable for damages caused by intoxication produced in whole or in part by liquor sold by his tenant on the premises rented to such tenant by the owner's agent. Hall v. Oermain, 37 N. Y. St. Repr. 820; S. C, 131 N. Y. 536. An owner is not liable to exemplary damages in the absence of evidence to show that he had knowledge of the circumstances under which the liquor was sold. Ketchem v. Fox, 53 Hun, 384; Rawlins v. Vidvard, 34 id. 305. The owner's liability being determined by his knowledge at the time the lease was executed that the premises leased were to be used for the sale of liquors, it was held that he was not liable in a case where, at the time of renting, he stated that he would not rent the place for a restaurant to sell beer or liquor, and it was taken with the understanding that liquor and beer should not be sold. O'Bourke v. Piatt, 67 Hun, 71. The land- lord's knowledge may, like any other fact, be established by direct or circumstantial evidence, but however established it must relate to the time of the lease. Hall v. Oermain, 131 N. Y. 536. Joint action. — A joint action will lie against the seller of the liquor producing the damages and the owner of the premises. Jackson v. Brookins, 5 Hun, 530; Smith v. Reynolds, 8 id. 128; Bertholf v. O'Reilly, Id. 16; affd., 74 N. Y. 509. But a joint action will not lie against two persons who separately and at different times and places sold liquor to the same person, which con- tributed to the intoxication. Jackson v. Brookins, 5 Hun, 530; Morenvs v. Crawford, 15 id. 45. Where the action was brought against two defendants, one of whom admitted the ownership of the building, and the other was the keeper of the saloon, a charge that if jury found for plaintiff the verdict should be against both defendants was held to be correct. Bennett v. Levi, 46 N. Y. St. Repr. 7.54. When action may be maintained. — A wife may recover damage for the death ol uli- iiasDuuu ugaiust une who liiid soiu him intoxicating liquors, if the intoxication was the proximate, though not the immediate, cause of his death. Davis v. Standish, 26 Hun, 608. A husband may maintain an action for a personal injury to his wife occasioned by the reckless driving of his son-in-law, who had become intoxicated by liquor sold to him by the defendant. Aldrich v. Soger, 9 How. 537. The intoxication complained of need not be the direct result of the liquor sold by defendant; the defendant is responsible for acts affecting the person, property or means of support, in consequence of intoxication in whole or in part. Becker v. Barnum, 19 Wkly. Dig. 94. Where plaintiff's mother was murdered by an intoxicated person, it was sufficient to show that the act wiis done while the person was intoxicated, OF THE State of !N^ew Yoek. Ill § 39 The Liquor Tax Law. in whole or in part, by liquors sold by defendant. Neu v. McKeclmie, 95 N. Y. 632. An action lies by a wife whose husband became intoxicated and. in con- sequence thereof, shot and killed a person, for which he was tried, con- victed and sentenced to state prison for life, thus depriving the plaintiff of her means of support. Beers v. Walhizer, 43 Hun, 354. Where the plaintiff's husband had been intoxicated during the evening and was found drowned in a millrace in shallow water, the evidence was sufiBcient to sustain a finding that his death was caused by intoxication. McCartji v. Wells, 51 Hun, 171. Loss of support. — Where injury to "means of support" is the grava, men of the action the plaintiff, in order to miintain the action, must show that by or in consequence of the intoxication or the acts of the intoxi- cated person, his accustomed means of maintenance have been cut off or curtailed, or that he has been reduced to a state of dependence by being deprived of the support which he had before enjoyed. Diminution of income or loss of property does not constitute an injury to means of support, within the fair intendment of the statute, if the plaintiflE notwithstanding has adequate means of maintenance, from accu- mulated capital or property, or his remaining income is sufficient for his support. Volans v. Owens, 74 N. Y. 536. And in a case where the wife of a husband killed while intoxicated married again, the court said: " The possession of another husband might be as useful to the plaintiff as the possession of ' accumulated capital or property,' so far as the means of support were concerned. In the present ease she is living with and entitled to the support of another man. Does not this condition affect the extent of injury to means of support which she suffers by the former hus- band's death ? " Sharpley v. Brown, 43 Hun, 374. A wife shows herself to be injured when it appears that she depended upon her husband to work a small piece of ground, and to go out to do day's work, and that he, while under the Influence of liquor, had squan- dered her money, and had fallen and lamed himself so as to be unable to work for four weeks, during which itime she was In destitute circum- stances.- Qitain v. Russell, 12 Hun, 376. In an action by a wife, where it appears that the husband's earnings are not more than sufficient for the support of his family, the jury may find that the plaintiff is Injured in her means of support to the full extent of the amount expended by the husband for liquor purchased of the defend- ant. Becker v. Barnum, 19 Wkly. Dig. 94. Where a parent sues for loss of support by the intoxication of his adult son, It is not enough to show a diminution of his income or a loss of prop- erty; It is necessary for the parent to show that he is a poor person and has no other adequate support. Under the Code Criminal Pro., § 914, a parent could compel his child to aid in his support, and if the child vol- untarily performs the duty without waiting to be compelled, the law 112 Excise and Hotel Laws The Liquor Tax Law. § 4a affords the same protection to the parent deprived of such support through intoxication of the child, and he can recover though his child is over 21. Stevens v. Cheney, 36 Hun, 1. Damages. — In order to maintain an action under this statute Injury ta person, property or means of support must ,be shown by the evidence, and this cannot he supplied by a speculative opinion as to the damage which resulted from the intoxication. March v. Mabbit, 3 Wkly. Dig. 126. *In ordinary cases, under the Civil Damage Act, only such damages should be recovered as have been actually sustained. P'ranklin v. Schemer- horn, 8 Hun, 113. In an action by a child to recover damages by the death of its father, where no claim is made for exemplary damages, evidence of a recovery for the same cause by the plaintiff's mother is inadmissible. Secor v. Tay- lor, 41 Hun, 133. In an action for damages sustained through the death of the plaintiff's husband, which was alleged to have been caused by intoxicating liquors sold by defendant, evidence is admissible that plaintiff has remarried as bearing upon the question of damages. Sharpley v. Brown, 43 Hun, 374. Both direct and consequential damages are recoverable, and a verdict for impairment of means of support by reason of habitual intoxication of plaintiff's husband for $1,000 was held not excessive. Bennett v. Levi, 46 N. Y. St. Repr. 754. Exemplary damages. — Where defendant's sale of liquor was illegal, plaintiff may recover exemplary damages. Neu v. McKechnie, 95 N. Y. 633. Exemplary or punitive damages are not recoverable under the Civil Damage Act except upon proof of aggravating circumstances with which defendant is connected. The owner of the premises is not liable for exemplary damages though the circumstances justify a recovery of them against the vendor of the liquor. Beid v. Terwilliger, 116 N. Y. 530. But where the owner had knowledge of the circumstances under which the liquor was sold, and evidence is" produced to that eflfect, a verdict foi exemplary damages would be sustained. Ketchem v. Fbx, 53 Hun, 384; BawUns v. Vidvard, 34 id. 305. § 40. Intoxication in a public place — Any person in- toxicated in a public place is a disorderly person and may be arrested witbout warrant wbile so intoxicated, and sball be punished by a fine of not less than three nor more than ten dollars, or by imprisonment not exceeding six months or by both such fine and imprisonment. The purchase or procurement of liquor for any person to whom it is for- bidden to sell liquor under section thirty of this act is a OF THE State of New Yoek. 11$ §§41-42 The Liquor Tax Law. misdemeanor, punisliable upon conviction, by a fine of not less than ten dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment. [A provision similar to tliis was contained in section 35 of chapter 401 of the Laws of 1892. The last sentence of this section, relating to the purchase of liquors for persons to whom it is. unlawful to sell under section 30, is made a misdemeanor. This is a new provision. Public intoxication is a crime. By section 18 of the Penal Codp, a crime is "an act or omission forbidden by law, and punishable upon conviction by," among other ways, "a fine." It has all the elements of a crime. It is offensive to public decency and dangerous to the good order and well being of society. People ex rel. v. French, 103 N. Y. 583. Intoxication in a public place being a criminal offense, the accused can- not be deprived of the right of trial by jury, ffill v. People, 17 N. Y. 363. It cannot be punished summarily before the magistrate unless the accused elects to be so tried; the act gives the right to bail and to be tried only by indictment. People v. Putnam, 3 Park. Or. Kep. 386. ] § 41. Employment of persons addicted to intoxicatioa by common carriers. — Any person or officer of an asso- ciation or corporation engaged ia the business of conveying passengers or property for hire, who shall employ ia the conduct of such busiaess, as an engineer, fireman, con- ductor, switch-tender, train dispatcher, telegrapher, com- mander, pilot, mate, fireman or ia other like capacity, so that by his neglect of duty the safety and security of life, person or property so conveyed might be iaiperiled, any person who habitually indulges ta the intemperate use of liquors, after notice that such person has been intoxicated, while ia the active service of such person, association or corporation, shall be guilty of a misdemeanor. [This section is the same in substance as section 39 of chapter 401 of the Laws of 1892. A simifar provision is also found ia the penal code, § 420 (post, p. 149).] § 42. Violations of this act generally.— Any willful violation by any person of any provision of this act for which no punishment or penalty is otherwise prescribed, shall be a misdemeanor. 15 114 Excise ahd Hotel Laws The Liquor lax Law. g§ 43-44 § 43. Distribution of copies of this act by the secretary •of state. — Immediately upon this act becoming a law the secretary of state shall cause twenty thousand copies thereof •to be printed, of which five thousand shall be printed in ■the German language and shall transmit as soon as possible ■to the county treasurers and to the special deputy commis- sioners such number as may in his judgment be proper for the use of such treasurers and commissioners, and for dis- tribution by them to persons trafficking in liquors and others. | § 44. Laws, grants and charters repealed; saving clause. — The provisions of any special or local law, grant or -charter in conflict with this act are hereby repealed and ^annulled. Of the laws enumerated in the schedule hereto -•annexed, that portion specified in the last column is re- pealed, but the provisions of any such relating to the trans- fer, cancellation or revocation of a license, the collection of penalties or prosecutions for the violation of the law shall continue in force as to any license, which has not expired .at the time this act takes effect, until the expiration thereof, subject to the provisions of this act, ia relation to the per- formance of the duties of boards of excise or excise com- -missioners by special deputies or special agents designated hj the state commissioner of excise. The repeal of any law by this act shall not revive a law repealed thereby, but such repeal shall not impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or pun- ishment incurred prior to the time this act takes effect, Tinder or by virtue of any law so repealed, and the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such law had not been repealed. All actions and proceedings, civil or criminal, commenced Tinder or by virtue of a law so repealed and pending imme- diately prior to the taking effect of this act, may be prose- cuted and defended to final effect in the same manner as they might have been under the laws then existing, subject to the provisions of this act authorizing special deputy com- missioners or special agents designated by the state com- missioner of excise to perform the duties of boards of excise. OF THE State of New Yoek. 115 § 45 The Liquor Tax Law. § 45. When to take effect. — This act shall take effect immediately. SCHEDULE OE LAWS KEPEALED. Laws of — Chapler. Section. 1835 272 All. 1842.... 15Y 3. 1843 97 1, 2. 1872 143 AH. 1873 646 All. 1877 419 All. 1887 679 All. 1892 360 All. 1892 401 All. 1892 402 All. 1892 403 All. 1892 404 All. 1893 143 All. 1893 221 All. 1893 271 All. 1893..... 479 All. 1893 480 All. 1893 481 All. 1894 294'. All. 1894 T20 AH. 1896 744 All., 1895 811 AH. CHAPTER III. MISCELLANEOUS LAWS REGULATING THE TRAFFIC AND USE OF LIQUORS. Section 1. Adulterations of wines, liquors, ales and beer. 2. Receptacles for liquors, wines and beer. 3. Pawns or pledges for liquor sold to Indians. 4. Study of the effect of narcotics and alcoholic driaks In schools. SECTION 1 — ADULTERATIONS OF WINES, LiaUOBS, ALES AND BEER. Laws 1893, chap. 661 — An act in relation to the public health, constituting chapter twenty-five of the general laws. [Became a law May 9, 1893.] Aeticlk III. ADULTERATIONS. Section 40. Definitions. 41. Adulterations. 42. Duties of state board of health in respect to adulter- ations. 43. Analysis of spirituous, fermented or malt liquors. 44. Samples to be furnished. 45. Seizure of milk. 46. Adulteration of wines. 47. Pure wine defined. 48. Half wine and made wine defined; packages, how stamped or labeled. 49. Penalties. 50. Report to district attorney. OF THE State of New York. llY Adulterations of Wines, Liquors, Ales and Beer. § 40. Definitions. — The term food, when used hei-ein, shall include every article of food and every beverage used by mati and all confectionery ; the term, drug, when so used shall include all medicines for external and internal use. § 41. Adulterations. — No person shall, within the state, manufacture, produce, compound, brew, distill, have, sell or offer for sale any adulterated food or drug. An article shall be deemed to be adulterated within the meaning of this act : A. In the case of drugs : 1. If when sold under or by a name recognised in the United States pharmacopeia, it differs from the standard of strength, quality or purity laid down therein. 2. If, when sold under or by a name not recognized in the United States pharmacopeia, but which is found in some other pharmacopeia or other standard work on materia medica, it differs materially from the standard of strength, quality or purity laid down in such work. 3. If its strength or purity fall below the professed standard under which it is sold. B. In the case of food : 1. If any substance or substances has or have been mixed with it so as to reduce or lower or injuriously affect its quality or strength. 2. If any inferior or cheaper substance or substances have been substituted wholly or in part for the article. 3. If any valuable constituent of the article has been wholly or in part abstracted. 4. If it be an imitation or be sold under the name of another article. 5. If it consists wholly or in part of diseased or decomposed or putrid or rotten animal or vegetable substance, whether manufactured or not, or in the case of milk, if it is the pro- duce of a diseased animal. 6. If it be colored, or coated, or polished, or powdered, whereby damage is concealed, or it is made to appear better than it really is, or of greater value. 7. If it contain any added poisonous ingredient, or any 113 Excise and Hotel Laws Adulterations of Wines, Liquors, Ales and Beer. ingredient which may render such article injurious to the health of the person consuming it. Provided that an article of food which does not contain any ingredient injurious to health, shall not be deemed to have been adulterated, in the case of mixtures or compounds which may be now, or from time to time hereafter, known as articles of food under their own distinctive names, or which shall be labeled so as to plainly indicate that they are mixtures, combinations, compounds or blends, and not included in definition fourth of this section. C. In the case of spirituous, fermented and malt liquors, if it contain any substance or ingredient not normal or healthful to exist in spirituous, fermented or malt liquors, or which may be deleterious or detrimental to health when such liquors are used as a beverage. In the case of ale or beer, if it contain any substitute for hops, or pure extract of hops, or if any such substitute is used in the manufacture thereof. D. In the case of confectionery, if it contains terra alba, barytes, talc or other mineral substance or poisonous colors or flavors, or other ingredients deleterious or detrimental to health. If the standard of any article of food or any drug is pot established in a national pharmacopeia, the state board of health shall, from time to time, fix the limit for variability permissible therein. The state board of health may, from time to time, with the approval of the governor, declare what articles or preparations shall be exempt from the provisions of this aisticle, and publish a list of such articles which shall thereafter be so exempt. Every person violating any pro- vision of this section shall forfeit to the people of the state the sum of one hundred dollars for every such violation. § 42. Duties of state board of health in respect to adul- terations. — The state board of health shall take cognizance of the interests of the pubKc health as 'affected by the sale or use of food and drugs and the adulterations thereof, and make all necessary inquiries and investigations relating thereto. It shall appoint such public analysts, chemists and inspectors as it may deem necessary for that purpose, and revoke any such appointment whenever it shall deem the person appointed OF THE State of New Yoek. 119 Adulterations of Wines, Liquors, Ales and Beer. incompetent, or his continuance in the service for any reason undesirable. It shall, from time to time, adopt such measures, and make such regulations and declarations, in addition to th& provisions of this article, as may seem necessary to enforce or facilitate the enforcement of this article, or for the purpose of making an examination or analysis of any food or drug sold or exposed for sale in the state, and all such regulations and declarations made in any year shall be filed in the oflBce of the- secretary of state and published in the session laws first pub- lished after the expiration of thirty days from such filing. § 43. Analysis of spirituous, fermented or malt liquors. — The state board of health shall at least once in each calen- dar year cause samples to be procured in the public market or otherwise of the spirituous, fermented or malt liquors, dis- tilled, brewed, manufactured, sold or ofEered for sale in each, brewery and distillery located in this state. Such samples'- shall be kept in vessels in a condition to obtain a proper test and analysis thereof. Such vessels shall be properly labeled and numbered by the secretary of such board, who shall pre- pare and keep an accurate list of the names of the distillers^ brewers and vendors of the liquors from which the samples^ were taken, and opposite each name shall appear the number- which is written or printed on the label attached to the vessel containing the sample. Such lists, numbers and labels shall be exclusively for the information of such board, and shall not be disclosed or published unless upon discovery of some deleterious substance therein prior to the completion of the analysis or required in evidence in court. When listed and numbered, every such sample shall be delivered to an analyst,, chemist or officer of the board, and shall be designated and known to him only by its number, and by no other mark or- designation. A test or analysis of such sample shall be made- by such analyst, chemist or officer, which will determine the- ingredients or component parts thereof. The result of such, test or analysis shall be immediately reported by the person making the same to the secretary of such board, setting forth explicitly the nature of any deleterious substance, compound 120 Excise and Hotel Laws Adulterations of Wines, Liquors, Ales and Beer. or adulteration found therein which may be detrimental to public health, and the number of samples in which it was found. Any brewer, distiller or vendor in whose samples any such substance, compound or adulteration is found upon any such test or analysis, shall be deemed to have violated the provisions of this article, prohibiting the manufacturing, having, selling or offering for sale adulterated food. § 44. Samples to be furnished. — Every person selling, or ■offering, or exposing for sale or manufacturing or producing any article of food, or any drug, shall upon tender of the value thereof, furnish any analyst, chemist, officer or agent of the state board of health or of any local board of health, with a sample of any such article or drug, sufficient for the pur- pose of analysis or test. For every refusal to furnish the same, the person so refusing shall forfeit to the people of the state the sum of one hundred dollars. § 45. Seizure of milk.— When a health officer or other official shall seize or destroy or cause to be seized or destroyed any milk, he shall take a sample of such milk in the presence of at least one witness, and shall, in the presence of such wit- ness, seal such sample and tender it to the vendor or person in charge of such mUk, and if accepted, shall also deliver there- with, a statement in writing of the date and cause of such seizure or destruction. Any health officer or other official violating the provisions of this section, shall be liable to a pen- alty of fifty dollars, to be recovered by the person aggrieved. § 46. Adulteration of wines. — All wines containing alco- hol, except such as shall be produced by the natural fermenta- tion of pure undried fruit juices or compounded with distilled spirits, whether denominated as wines or by any other name, which may be used as a beverage or compounded with other liquors intended for such use, and all compounds of the same with pure wine, and all preserved fruit juices compounded with substances not produced from undried fruit in the nature of or intended for use as a beverage, or for use in the fer- mentation or preparation of liquors intended for such use, and all wines, imitations of wines or other beverages produced OF THE State of New York. 121 Adulterations of Wines, Liquors, Ales and Beer. irom fruit, which shall contain any alum, baryta salts, caustic lime, carbonate of soda, carbonate of potash, carbonic acid, :salts of lead, glycerine, salic acid, or any other antiseptic, coloring matter, not produced from undried fruit, artificial flavoring, essence of ether or any other foreign substance injurious to health, shall be known as or deemed to be adul- terated wine, and shall not be sold, offered for sale or manu- factured with intent to sell within this state ; and all such wine and every such beverage shall be deemed a public nuisance and forfeited to the state and shall be summarily seized and destroyed by any health officer within whose jurisdiction it .shall be found, and the reasonable expense of such seizure and •destruction shall be a county charge. § 47. Pure wine defined. — For the purpose of this article, pure wine shaU be deemed to mean the fermented juice of undried grapes or other undried fruits, but the addition of ipure sugar to perfect the wine or of pure distilled spirits to preserve it, not to exceed eight per cent of its volume, or the use of things necessary to clarify and fine the wine not, injuri- ous to health shall not be construed as adulteration, if such piire wine shall contain at least seventy-five per cent of pure .grape or other undried fruit juice. § 48. Half wine and made wine defined ; packages how stamped or labeled. — For the purpose of this article, any wine which contains less than seventy-five and more than fifty per cent of pure grape or other undried fruit juice and is otherwise pure shall be known as half wine, and upon each and every package of such wine manufactured with the intent to sell, or sold or offered for sale by any person within this state, if containing more than three gallons, there shall be stamped on both ends of the package containing the same in black printed letters, at least one inch in height and of proper proportion in width, the words "half wine ;" and if contain- ing more than one quart and not more than three gallons, iihere shall be stamped on each package in plain printed black letters, at least one-half inch high and of proper proportion as 123 Excise and Hotel Laws Adulterations of Wines, Liquors, Ales and Beer. to width, the words " half wine ; " and if in a package or bottle of one quart or less, there shall be placed a label securely- pasted thereon, having the words " half wine " plainly printed in black letters at least one-quarter of an inch high and of proper proportion as to width. If any number of small pack- ages is inclosed in a larger package, as a box, barrel, case or basket, such outside package shall have thereon the stamp " half wine " in letters of a size according to the size of such outer package. Every person who shall sell, offer for sale, or manufacture with the intent to sell, within the state any wine containing less than fifty per centum of pure grape or other undried fruit juice and otherwise pure, shall cause all the packages containing the same to be stamped, marked and labeled with the words " made wine " in the same manner as " half wine " is required in this section to be stamped, marked and labeled, and all such wine shall be known and sold as "made wine." § 49. Penalties. — Every person who manufactures with intent to sell, sells or offers for sale within the state, any wine of a kind or character, the manufacture, sale or offering for sale of which is prohibited by this article, or which is not stamped, marked or labeled as required by this article, shall forfeit to the county wherein such manufacture, sale or offer- ing for sale takes place, the sum of one-half dollar for each gallon thereof so sold or manufactured with the intent to sell. The provisions of the three preceding sections of this article shall not apply to medicated wines which are put up and sold for medical purposes only. § 50. Report to district-attorney. — Upon discovering any violations of the provisions of the penal code relating to the adulteration of foods and drugs, the state board of health shall immediately communicate the facts to the district-attor- ney of the county where the violation occurred, who shall thereupon forthwith commence proceedings for the indict- ment and trial of the person cliarged with such violation. Nothing in this article shall be construed to in any way repeal OF THE State of New York. 123 Receptacles for Liquors, Wines and Beer. or affect any of the provisions of chapter 183 of the Laws of 1885, or the acts amendatory thereof or supplemental thereto, or of chapter 515 of tlie Laws of 1889, nor to prohibit the coloring of butter made from milk, the product of the dairy or the cream from the same with coloring matter which is not . injurious to health. [See Penal Code, § 397.] SECTION 2— KECEFTACLES FOR LiaXJORS, WINES AND [As the two following acts relate to the business o( putting up for sale liquors, wines and beer, and contain provisions protecting the dealers in such commodities, we have considered them of enough general importance to be here inserted.] Laws 1864, chap. 276 — An act in relation to the sale, use and disposition of butts, hogsheads, barrels, casks or kegs used by the manufacturers of malt liquors. Section 1. Where manufacturers of malt liquors may file descriptions, etc. — Any person or persons engaged in the manufacture of malt liquor for sale in butts, hogsheads, barrels, half-barrels, casks, half-casks, quarter-casks or kegs, with his, her or their name or names or other private marks respectively branded or stamped thereon, may file in the oflSce of the secretary of state and in the office of the clerk of the county in which such article shall be manufactured, a descrip- tion of the names used and other private mark or marks to be branded or stamped thereon, and shall cause the same to be . published once a week for six weeks successively in a news- paper published in such county, and in the city and county of New York, where such publications shall be made for the same time, in two daily newspapers published in said city. § 2. Other persons forbidden to use barrels, hogsheads, etc., thus stamped ; penalty of violation of this section ; evidence thereof. — It is hereby declared to be unlawful for any person or persons hereafter, other than the lawful owner or owners, as mentioned and referred to in the first section of this act, to fill with malt liquor or liquors for any purpose whatsoever, or to use, traffic in, purchase, sell, dispose of, 124 Excise and Hotel Laws Receptacles for Liquors, Wines and Beer. detain, convert, mutilate or destroy, or wilfully or unreason- ably refuse to return or deliver to such owner, upon demand being made, any such butt, hogshead, barrel, half-barrel, cask, half-cask, quarter-cask or keg so branded or stamped, or from which such brands or stamps have been removed, cut oflF, defaced or obliterated, or to remove, cut off, deface or obliter- ate, or to brand or stamp other brands or stamps on the same, without the written permission of such original or lawful owner or owners thereof, or unless there shall have been a sale in express terms of any such article, exclusive of the malt liquor contained therein, to such person or persons by said original or lawful owner or owners ; any person so offending shall, upon conviction, be deemed guilty of a misdemeanor, to be punished for the first offense by a fine of ten dollars or imprisonment for not more than ten days in the county jail of the county where the offense was committed, for each and every such butt, hogshead, barrel, half-barrel, cask, half- cask, quarter-cask or keg so filled or trafficked in, purchased, sold, disposed of, detained, converted, mutilated or destroyed, or not so delivered or returned ; and by a fine of twenty dol- lars, and by imprisonment in a county jail for not less than one and not more than three months for each and every sub- sequent offense, such fine to be recovered in the same manner as fines are now recoverable ; one-half for the use of the poor of the city or the town where such offense shall be committed, and one-half for the use of the officers who may arrest such offender ; and upon the trial of any person charged with com- mitting an offense under the provisions of this act, proof of possession by such person so charged of any of the articles aforesaid, or parts or portions thereof, shall be presumptive evidence that the person so charged is guilty of an offense under the provisions of this act, and unless such possession shall be explained to the satisfaction of the court, shall be con- clusive evidence that such person is guilty of such offense. {Thus amended ly Laws 1886, chap. 417.] § 3. Search warrant, when to issue in behalf of owner ; proceedings thereupon.— Any such owner or owners, or OF THE State of New Yoek. 125 Receptacles for Liquors, Wines and Beer. the agent of such owner or owners, who shall make oath or affirmation before any justice of the peace, police justice, or any magistrate having jurisdiction in criminal matters, that he has reason to believe (setting forth the facts upon which such belief is founded) and does believe that any of the above- named articles, or parts or portions thereof, belonging to him or them, so branded or stamped as aforesaid, or from which the brands or stamps have been cut off, removed, defaced or obliterated, or which have been mutilated or wilfully detained softer demand of the same has been duly made, or that any junk or cask dealer or any other person or persons whomso- ever shall have any of the articles above described or parts or portions thereof, unlawfully as aforesaid in his, her or their possession, or secreted on his, her or their premises, or in any other place under his, her or their control, the said magistrate shaU thereupon, on proof of such demand having been made,, issue a search warrant, directed to any constable or other proper officer, to search the premises of the offender or offenders or said place where any such articles are alleged to> be, particularly describing such premises or place, and if upon such search any such articles shall be found, to take possession of the same, and to bring the body of the person in whose possession or control any such article may be found, before such magistrate to be tried as for misdemeanor under the same regulations now provided by law for the trial of misdemeanor,, and to be punished in the manner set forth in the second section of this act. {Thus amended hy Loajos 1886, chaj^. 41 Y.} Laws 1887, chap. 377 — An act to protect the owners of bottles, boxes, syphons and kegs used in the sale of soda waters, mineral or aerated wa,ters, porter, ale, cider, ginger ale, milk, cream, small l?eer, lager beer, weiss beer, beer, white beer or other beverages. Section 1, Manufacturers, etc., may file and publish description of marks, etc.— Any and all persons and cor- 126 Excise and PIotel Laws Receptacles for Liquors, Wines and Beer. porations engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beerj lager beer, weiss beer, white beer or other beverages, or medicines, medical prepara- tions, perfumery compounds or mixtures, in bottles, sjphons, tins or kegs, with his, her, its or their name or names or other marks or devices branded, stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, syphons, tins or kegs, or the boxes used by him, her, it or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, and also in the office of the secretary of state, a description of the name or names, marks or devices so -used by him, her, it or them, respectively, and cause such description to be printed once in each week for three weeks successively in a newspaper pub- lished in the county in which said notice ' may have been filed as aforesaid, except that in the city and county of New York and the city of Brooklyn in the county of Kings, such publi- cation shall be made for three weeks successively in two daily newspapers published in the cities of ISTew York and Brook- lyn, respectively. {Thus amended hy Lcms 1888, chap. 181.J § 2. Unlawful use of vessels, etc., defacing marks, etc., prohibited; penalty. — It is hereby declared to be unlawful for any person or persons, corporation or corporations, to fill with soda waters, mineral or aerated waters, porter, ale, cider, gmger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or with medicine, medi- cal preparations, perfumery, compounds, or mixtures, any bottle, box, syphon, tin or keg, so marked or distinguished, as aforesaid, with or by any name, mark or device, of which a description shall have been filed and published as provided in section one of this act, or to deface, erase, obliterate, cover up, or otherwise remove or conceal, any such name, mark or device thereon, or to sell, buy, give, take, or otherwise dispose of or traffic in the same without the written consent of or unless the same shall have been purchased from the person or persons, corporation or corporations whose mark or device OF THE State of New York. 127 Keceptacles for Liquors, Wines and Beer. shall be or shall have been in or upon the bottle, box, syphon, tin or keg so tilled, trafficked in, used or handled as aforesaid. Any person or persons or corporations offending against the provisions of this section shall be deemed guilty of a misde- meanor and shall be punished for the first offense by impris- onment not less than ten days nor more than one year, or by a fine of fifty cents for each and every such bottle, box, syphon, tin, or keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment not less than twenty days nor more than one year, or by a fine of not less than one dollar nor more than five dollars for each and every bottle, box, syphon, tin and keg "so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprison- ment in the discretion of the magistrate before whom the offense shall be tried. [Thus ainended hy Laws 1888, chwp. 181.] § 3. When use, etc., deemed unlawful ; presumptive evidence. — The use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same, without such written consent or purchase as aforesaid, of any such marked or distinguished bottle, box, syphon, tin or keg, a description of the name, mark or device whereon shall have been filed and published as herein provided, for the sale therein of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or of any articles of merchandise, medicines, medical preparations, perfumery, compounds, mix- tures or preparations, or for the furnishing of such or similar beverages to customers, or the buying, selling, usmg, dispos- ing of or trafficking in any such bottles, boxes, syphons, tins or kegs by any person other than said persons or corporations having a name, mark or device thereon or such owner with- out such written consent, or the having by any junk dealer or dealers in second-hand articles possession of any such bottles, boxes, syphons, tins or kegs, a description of the marks, names 128 Excise and Hotel Laws Receptacles for Liquors, Wines and Beer. or devices wherein shall have been so filed and published as aforesaid without such written consent, shall and is hereby declared to be presumptive evidence of the said unlawful use, purchase and traffic in of such bottles, boxes, syphons, tins or kegs. [^Thus amended iy Laws 1888, chap. 181.J § 4. Search-warrants and proceedings thereupon. — Whenever any person, persons or corporation mentioned in section one of this act, or his, her, its or their agent shall niake oath before any magistrate that he, she or it has reason to believe and does believe that any of his, her, its or their bot- tles, boxes, syphons, tins or kegs, a description of the names, marks or devices whereon has been so filed and published as aforesaid, are being unlawfully used or filled or had by any person or corporation, manufacturing or selling soda, mineral or areated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer, or other bever- ages, or medicine, medical preparations, perfumery, com- pounds or mixtures, or that any junk dealer, or dealer in second-hand articles, vendor of bottles, or any other person or corporation has any such bottles, boxes, syphons, tins or kegs in his, her or its possession or secreted in any place, the said magistrate must thereupon issue a search-warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession such bottles, boxes, syphons, tins or kegs may be found, and shall then inquire into the cir- cumstances of such possession, and if said magistrate finds that such person has been guilty of a violation of section two of this act, he must impose the punishment therein prescribed, and he shall also award possession of the property taken upon such warrant to the owner thereof. \^Thu8 amended hy Laws 1888, chap. 181.J § 5. Marks, etc., previously published to be valid. — Any person or persons, corporation or corporations, that has or have heretofore filed in the offices mentioned in section one of this act a description of the name or names, mq,rks or (leyices upon his, her, their, or its property therein mentioned, OF THE State of New Yobk. 129 Pawns or Pledges for Liquor Sold to Indians. and has caused the same to be pubhshed according to the laws- existing at the time of such fiUng and publication shall not be required to again tile and publish such description to be enti- tled to the benefits of this act. § 6. Repeal. — -All acts and parts of acts inconsistent here- with are for the purposes of this act hereby repealed. SECTION 3— PAWNS OR PLEDGES FOB LiaXJOR SOLD TO' INDIANS. Laws 1892, chap. 679 — An act in relation to Indians^ § 4. Pawns or pledges for liquor. — Any person who shall, receive from any Indian, any article of personal property im payment or exchange, or in pawn or pledge for payment, wholly or partly, for any spirituous liquor or intoxicating drink, sold or delivered to any Indian, shall be liable to a pen- alty of ten times the value of such article, recoverable by the agent or attorney of the nation, tribe or band to which such. Indian belongs, or with which he resides, in the name of such nation, tribe or band, or of the people of the state. If there- be no such agent or attorney, such action may be maintained, in their name of ofiice, by the overseers of the poor of the town in which the Indian resides. Any such article or the value thereof may be recovered by the Indian selling, exchanging or pawning the same, within twenty days thereafter, from any person having possession thereof. If such action shall not be brought within twenty days from the sale or pledge of such article, the peacemakers, if any, of the reservation to which such Indian belongs, and if none, the overseers of the poor of the town in which he- resides, may recover such article in their name of office. [This is a special provision relating to sales of liquor to Indians, and is. not in any way affected by the Excise Law. Section 32, subdivision 5, of the Excise Law makes illegal all sales to Indians, and for a violation thereof the seller is liable to punishment as of a misdemeanor.] 130 Excise and Hotel Laws The Study of Effects of Alcoholic Drinks in Public Schools. SECTION 4— THE STUDY OF EFFECTS OF ALCOHOLIC DRINKS IN PUBLIC SCHOOLS. Laws 1895, chap. 104 — An act to amend the consolidated school law providing for the study of the nature and effects of alcoholic drinks, and other narcotics in con- nection with physiology and hygiene in the public schools. [Became a law June 15, ISOS, taking effect August 1, 1895.] Section 1. Sections nineteen and twenty of article fifteen of the consolidated school law are amended to read as follows : § 19. The nature of alcoholic drinks and other narcotics and their effects on the human system shall be taught in con- nection with the various divisions of physiology and hygiene, as thoroughly as are other branches for not less than four lessons a week for ten or more weeks in each year in all grades below the second year of the high school in all schools under state control, or supported wholly or in part by public money and also in all schools connected with reformatory institutions. All pupils must continue such study till they have passed sat- isfactorily the required primary, intermediate or high school test in the same, according to their respective grades. All regents' examinations in physiology and hygiene shall include a due proportion of questions on the nature of alcoholic drinks and other narcotics, and their effects on the human system. The local school authorities shall provide needed facilities and definite time and place for this branch in the regular course of study. All pupils who can read shall study this subject from suitable text-books, but pupils unable to read shall be instructed in it orally by teachers using text-books adapted for such oral instruction as a guide and standard, and these text- books shall be graded to the capacities of primary, interme- diate and high school pupils. For students below high school grade such text-books shall give at least one-fifth their space, and for students of high school grade shall give not less than OP THE State oe Is^ew Yoek. 131 The Study of Effects of Alcoholic Drinks in Public Schools. twenty pages to the nature and effects of alcoholic drinks and other narcotics, but pages on this subject in a separate chapter at the end of the book shall not be counted in meeting the minimum. No text-book on physiology not conforming to this act shall be used in the public schools except so long as may be necessary to fulfil the conditions of any contract exist- ing at the titne of the passage of this act. § 20. In all normal schools, teachers' training classes and teachers' institutes, adequate time and attention shall be given to instruction in the best methods of teaching this branch, and no teacher shall be licensed wlio has not passed a satisfactory examination in the subject, and the best methods of teaching it. No state school money shall be paid for the benefit of any district, city, normal or other school herein mentioned, until the officer or board having jurisdiction and supervision of such school has filed, with the ofiicer whose duty it is in each ■ case to disburse the state school money for' such school, an affidavit made by such ofiicer, or by the president or secretary of such board, that he has made thorough investigation as to the facts, and that to the best of his knowledge, information, and belief, all the provisions of this act have been faithfully complied with during the preceding school year. OHAPTEK IT. THE PUBLIC OFFICERS LAW, AS AMENDED TO THE COMMENCEMENT OF THE LEGISLATITB SESSION OF 1896. [We have deemed it expedient to here insert in full the Public Officers Law. It is particvilarly applicable to excise cominissioners, and contains requirements additional to those included in the Excise Law, as to their necessary qualifications, the com- mencement of their terms, holding over after the expiration of their terms, oatlis and undertakings, etc. It is, therefore, a proper part of a compilation of this natiu-e.] Laws 1892, chap. 681 — An act in relation to public offi- cers, constituting chapter seven of the general laws. [Became a law May 18, 1892.] CHAPTEE VII OF THE GENERAL LAWS. The Public Officeks Law. Akticlb I. Appointment and qualification of public oflQcers (g§ 1-15). II. Creation and filling of vacancies (§§ 30-31). III. Powers and duties of public officers {§§ 4(M4). Article I. APPOINTMENT AND QUALIFICATION OF PUBLIC OFFIOEES. Section 1. Short title and extent of application, 2. Definition. 3. Qualifications for holding office. 4. Commencement of term of office. 5. Holding over after expiration of term. 6. Mode of choosing state officers, if not otherwise provided, 7. Appointment by the governor and senate. 8. Commissions of officers. 9. Deputies, their appointment, number and duties. 10. Official oaths. 11. Official undertakings. 12. Force and effect of official undertakings. 13. Notice of neglect to file oath or undertaking. 14. Effect of revision on terms of office. 15. Validation of official acts performed before filing official oath of undertaking. Section 1. Short title and extent of application, — This chapter shall be known as the public officers law, and applies to civil officers only. OF THE State of New Toek. 133 §§ 3-5 The Public Officers Law. §2. Definitions. — The term state officer includes every officer for whom all the electors of the state are entitled to vote, members of the legislature, justices of the supreme court, regents of the university, and every officer, appointed by one or more state officers, or by the legislature, and authorized to exercise his official functions throughout the entire state, or without limitation to any political subdivision of the state, except United States senators, members of congress, and electors for president and vice-president of the United States. The term local officer includes every other officer who is elected by the electors of a portion only of the state, every officer of a political subdivision or municipal corporation of the state, and every officer limited in the execution of his offi- cial functions to a portion only of the state. The office of a state officer is a state office. The office of a local officer is a local office. § 3. Qualifications for holding office. — No person shall be capable of holding office who shall not, at the time he shall be chosen thereto, be of full age, a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he shall be chosen, or within which the electors electing him reside, or within which his official func- tions are required to be exercised. §4. Commencement of term of office.— The term of office of an elective officer, unless elected to fill a vacancy then existing, shall commence on the first day of January next after his election, if the commencement thereof be not otherwise fixed by law. § 5. Holding over after expiration of term.— Every officer except a judicial officer, a notary public, a commis- sioner of deeds and an officer whose term is fixed by the con- stitution, having duly entered on the duties of "his office, shall, unless the office shall terminate or be aboHshed, hold over and continue to discharge the duties of his office, after the expira- tion of the term for which he shaU have been chosen, until 134 Excise and Hotel Laws The Public Officers Law. §§ 6-7 his successor shall be chosen and qualified ; but after the expiration of such term, the ofiice shall be deemed vacant for the purpose of choosing his successor. An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms. An appointment for a term shortened by reason of a predecessor holding over, shall be for the resi- due of the term only. § 6. Mode of choosing state officers if not otherwise provided. — If the law shall not otherwise provide the mode of choosing a state officer, he shall be appointed by the gov- ernor by and with the advice and consent of the senate. § 7. Appointment by the governor and senate. — An appointment to an office by the governor by and with the advice and consent of the senate, shall be made by communi- cating to the senate, while in session, a written nomination of a person for the office, designating the residence of the nominee, and if nominated to be an officer of a political sub- division of the state, designating also such subdivision, and if nomincting two or more persons to the same office for different terms, designating the term for which each is nominated. If such nomination be of a successor to a predecessor in the same office, it may be made and acted upon by the senate after the expiration of the term or occurrence of a vacancy in the office of such predecessor, or at any time during the legislative session of the calendar year in which the term of office of such predecessor shall expire or in which the office shall become vacant. If the appointment be made before the expiration of the term of such predecessor, the term of office of the appointee shall commence upon the expiration of the term of such predecessor, or if made to fill a vacancy, upon the occurrence of such vacancy, or immediately if a vacancy already exist. If the senate shall reject such nomination, the clerk of tbe senate shall forthwith communicate, by writing, signed by the president and clerk of the senate, to the gov- ernor, the fact of such rejection. If the senate shall confirm OF THE State of New York. 135 §§ 8-9 The Public Officers Law. such nomination tlie appointment shall be deemed complete, and thereupon duplicate certificates of the confirmation shall be made and signed by the president and clerk of the senate, who shall cause one to be delivered to the governor and the other to the secretary of state, who shall record the same in his office in a book kept for that purpose. [Thus amended by Laws 1893, chap. 318, taking effect April 6, 1893.] § 8. Commissions of officers. — The commission of every officer appointed by the governor, or by the governor by and with the consent of the senate, shall be signed by the gov- ernor and attested under the seal of this state, by the secre- tary of state who shall make and record in his office a copy of such commission, and deliver the original to the officer appointed, by a messenger, if the governor shall so direct, and otherwise, by mail or as the secretary of state shall deem proper. Commissions of notaries public may be signed by the governor's private secretary, and shall be sent to the county clerk of the county in which such notaries public, respectively reside. Every other appointment of an officer, made by one or more state officers, shall be in writing, and signed by the officer or officers, or by a majority of the officers, or by the presiding officer of the board or body, mak- ing the appointment. Every such written appointment shall be deemed the commission of the officer appointed, and, if of a state officer, a duplicate or a certified copy thereof shall be recorded in the office of the secretary of state ; if of a local officer, it shall be sent to the clerk of the county in which the officer appointed shall then reside, who shall file the same in his office, and notify the officer appointed of his appointment. § 9. Deputies, their appointment, number and duties. — Every deputy, assistant, or other subordinate officer, whose appointment or election is not otherwise provided for, shall be appointed by his principal officer, board or other body, and the number thereof, if not otherwise prescribed by law, shall be limited in the discretion of the appointing power. If there is but one deputy, he shall, unless otherwise prescribed by law, possess the powers and perform the duties of his prin- 136 Excise and Hotel Laws The Public Officers Law. §§ 10-11 cipal during the absence or inability to act of his principal, or during a vacancy in his principal's office. If there be two or more deputies of the same officer, such officer may designate, in writing, the order in which the deputies shall act, in case of his absence from the office or his inability to act, or in case of a vacancy in the office, and if he shall fail to make such designation, the deputy longest in office present, shall so act. If two or more deputies present shall have held the office for the same period, the senior deputy in age shall so act. Such written designation by a state officer shall be filed in the office of the secretary of state ; and by any other officer, in the office of the clerk of the county in which the principal has his office. If a vacancy in a public office shall be caused by the death of the incumbent, the deputies shall, unless otherwise provided by law, continue to hold office until the vacancy shall have been filled in accordance with law. § 10. Official oaths. — Every officer shall take and file the oath of office required by law before he shall be entitled to enter upon the discharge of any of his official duties. An oath of office may be administered by an}' officer authorized to take, within the state, the acknowledgment of the execu- tion of a deed of real property, or by an officer in whose office the oath is required to be filed, or may be administered to any member of a body of officers, by a presiding officer or clerk thereof, who shall have taken an oath of office. The oath of office of a notary public or commissioner of deeds shall be filed in the office of the clerk of the countj' in which he shall reside. The oath of office of every state officer shall be filed in the office of the secretary of state ; of every officer of a municipal corporation, with the clerk thereof ; and of every other officer, in the office of the clerk of the county in which he shall reside, if no place be otherwise provided by law for the filing thereof. {Thus amended hy Laws 1893, chap. 318, taking effect April 6, 1893.] § 11. Official undertakings. — Every official undertaking, when required by or in pursuance of law to be hereafter exe- OF THE State of New Yoek. 137 S 11 The Public Officers Law. ■cuted or filed by any oflBcer, shall be to the effect that he will faithfully discharge the duties of his office and promptly account for and pay over all moneys or property received by him as such officer, in accordance with law, or in default thereof, that the parties executing such undertaking will pay all damages, costs and expenses resulting from such default, not exceeding a sum, if any, speciiied in such undertaking. The undertaking of a state officer shall be approved by the •comptroller both as to its form and as to the sufficiency of the :sureties, and be filed in the comptroller's office. The under- taking of a municipal officer shall, if not otherwise provided Ijy law, be approved as to its form and the sufficiency of the sureties by the chief executive officer or by the governing body of the municipality and be filed with the clerk thereof. The approval by such governing body, may be by resolution, a certified copy of which shall be attached to the undertaking. The sum specified in an official undertaking shall be the sum for which such undertaking shall be required by or in pursu- ance of law to be given. If no sum, or a different sum from that required by or in pursuance of law, be specified in the undertaking, it shall be deemed to be an undertaking for the amount so required. If no sum be required by or in pursu- ance of law to be so specified, and a sum be specified in the undertaking, the sum so specified shall not limit the liability of the sureties therein. Every official undertaking shall be ■executed and duly acknowledged by at least two sureties, each of whom shall add thereto his affidavit that he is a freeholder or householder within the state, stating his occupation and residence and the street number of his residence and place of business if in a city, and a sum which he is worth over and above his just debts and liabilities and property exempt from execution. The aggregate of the sums so stated in such affi- davits must be at least double the amount specified in the undertaking. The failure to execute an official undertaking in the form or by the number of sureties required by or in pursuance of law, or of a surety thereto to make an affidavit Tequired by or in pursuance of law, or in the form so required, 138 Excise and Hotel Laws The Public Officers Law. § 12-13- or the omission from such an undertaking of the approval required by or in pursuance of law, shall not affect the liabil- ity of the sureties therein. § 12. Force and effect of official undertaking. — An oflBcer of whom an official undertaking is required, shall not receive any money or property as such officer, or do any act affecting the disi^osition of any money or property which such officer is entitled to receive or have the custody of, before he shall have filed such undertaking ; and any person having the custody or control of any such money or property shall not deliver the same to any officer of whom an undertaking is required until, such undertaking shall have been given. If a public officer required to give an official undertaking, enters upon the discharge of any of his official duties before giving such undertaking, the sureties upon his undertaking subse- quently given for or during his official term shall be liable for all-his acts and defaults done or suffered and for all moneys and property received during such term prior to the execu- tion of such undertaking, or if a new undertaking is given, from the time notice to give such new undertaking is served upon him. Every official undertaking shall be obligatory and in force so long as the officer shall continue to act as such and until his successor shall be appointed and duly qualified, and until the conditions of the undertaking shall have been fully performed. When an official undertaking is renewed pur- suant to law the sureties upon the former undertaking shall not be liable for any official act done or moneys received after the due execution, approval and filing of the new undertaking. § 13. Notice of neglect to file oath or undertaking. — The officer or body making the appointment or certificate of election of a public officer shall, if the officer be required to give an official undertaking to be tiled in an office other than that in which the written appointment or certificate of elec- tion is to be filed, forthwith give written notice of such appointment or election to the officer in whose office the undertaking is to be filed. If any officer shall neglect, within. OF THE State of New Yoek. 139 § 14-15 The Public Officers Law. the time required by law, to take and file an official oath, or execute and file an official undertaking, the officer, with whom or in whose office such oath or undertaking is required to be filed, shall forthwith give notice of such neglect, if of an appointive officer, to the authority appointing such officer ; if of an elective officer, to the officer, board or body authorized to fill a vacancy in such office, if any, or if none and a vacancy in the office may be filled by a special election, to the officer, board or body authorized to call or give notice of a special election to fill such vacancy ; except that the notice of failure of a justice of the peace to file his official oath, shall be given to the town clerk of the town for which the justice was elected. § 14. Effect of revision on terms of office. — If an office be continued by the general laws constituting the revision of which this chapter is a part, the person now lawfully holding such office shall, subject to the provisions of such general laws, continue therein for the term for which he was chosen, or if holding over after the expiration of his term, until his successor shall be chosen and shall have qualified. § 15. Validation of official acts performed before filing official oath or undertaking. — If a public officer, duly chosen, has heretofore entered, or shall hereafter enter on the performance of the duties of his office, without taking or filing an official oath, or executing or filing an official under- taking, as required by the constitution, or by any general or special law, his acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed, and as if such undertaking had been duly executed and filed, notwithstanding the provisions of any general or special law declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty for omission to take or file any such oath, or to execute or file any such undertaking ; but this section shall not otherwise affect any provision of any general or special law, declaring any such office vacant, or authorizing it to be declared vacant, or 140 Excise and Hotel Laws The Public Officers Law. § 20 to be filled as in case of vacancy, or imposing any other forfeiture or penalty, by reason of the failure to take or file any such oath or to execute or file any such undertaking ; and this section shall not relieve any such officer from the criminal liability imposed by. section forty-two of the penal code, for entering on the discharge of his official duties with- out taking or filing such oath or executing or filing such undertaking. {^Added hy Laws of 1894, chap. 403, taking effect May 3, 1894.] Aeticle TI. CEEATION AND FILLING OF VACANCIES. Section 30. Creation of vacancies. 21. Eesignations. 32. Removals by senate. 23. Removals by governor. 34. Evidence in proceedings for removal by governor. 25. Removals from office. 26. Notice of existence of vacancy. 27. Terms of officers chosen to fill vacancies. 28. Filling vacancies in office of officer appointed by governor and senate. 29. "Vacancy occurring in office of legislative appointee, during legislative recess. 30. Vacancies filled by legislature. 31. Filling other vacancies. § 20. Creation of vacancies. — Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof : 1. The death of the incumbent ; 2. His resignation ; 3. His removal from office ; 4. His ceasing to be an inhabitant of the state, or if he be a local officer, of the political subdivision, or municipal cor- poration of which he is required to be a resident when chosen ; OF THE State of New Yoek. 141 § 21 The Public Officers Law. 5. His conviction of a felony, or a crime involving a viola- tion of his oath of office ; 6. The judgment of a court, declaring void his election or appointment, or that his office is forfeited or vacant ; 7. His refusal or neglect to file his official oath or under- taking, if one is required, before or within fifteen days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within fifteen days after notice of his appointment, or within fifteen days after the commencement of such term ; or to file a renewal undertaking within the time required by law, or if no time h& so specified, within fifteen days after notice to him in pursu- ance of law, that such renewal undertaking is required. When a new office or an additional incumbent of an existing office shall be created, such office shall for the purposes of an appointment or election, be vacant from the date of its crea- tion, until it shall be filled by election or appointment. § 21. Resignations. — Public officers may resign their offi- ces as follows : 1. The governor, lieutenant-governor, secretary of state, comptroller, attorney-general, state engineer and surveyor, to- the legislature ; 2. All officers appointed by the govomor alone, or by him with the consent of the senate, to the governor ; 3. Senators and members of the assembly, to the presiding officers of their respective houses ; 4. Sheriffs, coroners, county clerks, district attorneys and registers of counties, to the governor ; 5. Every other county officer, to the county clerk ; 6. Every town officer, to the town clerk ; 7. The officer of any other municipal corporation, to the clerk of the coi-poration ; 8. Every other appointive officer, where not otherwise pro- vided by law, to the body, board or officer that appointed him, and every other elective officer, where not otherwise pro- vided by law, to the secretary of state. Every resignation shall be in writing addressed to the offi- 142 Excise and Hotel Laws The Public Officers Law. § 33 cer or body to whom it is made. If addressed to an officer, it shall take effect upon delivery to him at his place of business or when it shall be filed in his office. If addressed to the legislature or to the presiding officer of either house thereof, it shall be delivered to and filed with the secretary of state, and shall take effect when so delivered, and he shall forthwith communicate the fact of such resignation to the legislature or to such house, if in session, or if not, at its first meeting thereafter. If addressed to any other body it shall be delivered to the presiding officer or clerk of such body, if there be one, and if not, to any member thereof, and shall take effect upon such delivery, and shall be filed with the clerk, or if there be no clerk, with the other records of such body. A delivery at the office or place of residence or business of the person to whom any such resignation may be delivered shall be a suff'- cient delivery thereof. § 22. Removals by senate. — The governor before mak- ing a recommendation to the senate for the removal of any officer may, in his discretion take proofs, for the purpose ,of determining whether such recommendation shall be made. The secretary of state, comptroller, treasurer, attorney^ general, or the state engineer and surveyor, may be removed by the senate, on the recommendation of the governor, for misconduct or malversation in office, if two-thirds of all the members elected to the senate shall concur therein. No such removal shall be made unless the person who is sought to be removed, shall have been served with a copy of the charges against him and have an opportunity of being heard. On the question of removal, the yeas and nays shall be entered on the journal. The governor may convene the senate in extra session for the investigation of such charges. The senate shall have power to make such rules as it may see fit for the practice before it. At the time appointed for the inves- tigation, the senate shall proceed to hear and try the charges against such officer, and may take proofs in relation thereto. OF THE State op New Yoek. 143 § 33-34 The Public Officers Law. The governor may direct the attorney-general, or may appoint any suitable person to conduct the trial of such charges before the senate. An officer appointed by the governor by and with the advice and consent of the senate, may be removed by the senate upon the recommendation of the governor. If the senate shall reject a recommendation of removal the clerk of the senate shall, by a writing signed by him and by the president and clerk of the senate, communicate the fact of such rejection to the governor. If the senate shall concur in such a recommendation the removal shall take effect upon the passage of the resolution of concurrence, and duplicate copies of such resolution, certified by the clerk and president of the senate, shall be executed, and delivered by the clerk to the secretary of state. § 23. Removals by governor. — An officer appointed by the governor for a full term or to fill a vacancy, any county stiperintendent of the poor, any register of a county, or any notary public, may be removed by the governor within the term for which such officer shall have been chosen, after giv- ing to such officer a copy of the charges against him and an opportunity to be heard in his defense. § 24. Evidence in proceedings for removal by governor, — The governor may take the evidence in any proceeding for the removal by him of a public officer or may direct that the evidence be taken before a justice of the supreme court of the district, or the county judge of the county, in which the officer proceeded against shall reside, or before a commissioner appointed by the governor for that purpose by an appoint- ment in writing, filed in the office of the secretary of state. The governor may direct such judge or commissioner to report to him the evidence taken in such proceeding, or the evidence and the findings by the judge or commissioner of the material facts deemed by such judge or commissioner to be established. The commissioner or judge directed to take such evidence may require witnesses to attend before him, and shall issue 144 Excise and Hotel Laws The Public Officers Law. § 35-26 subpoenas for snch witnesses as may be requested by the officer proceeded against. The governor may direct the attorney-general, or the dis- trict attorney of the county in which the officer proceeded against shall reside to conduct the examination into the truth of the charges alleged as ground for such removal. If the examination shall be before a commissioner or judge, it shall be held at such place in the county in which the officer pro- ceeded against shall reside as the commissioner or judge shall appoin|;, and at least eight days after written notice of the time and place of such examination shall have been given to the officer proceeded against. All sheriffs, coroners, constables and marshals to wliom pro- cess shall be directed and delivered under this section shall execute the same without unnecessary delay. § 25. Removals from office. — Every removal of an officer by one or more state officers, shall be in written duplicate orders, signed by the officer, or by all or a majority of the officers, making the removal, or if made by a body or board of state officers may be evidenced by duplicate certified copies of the resolution or order of removal, signed either by all or by a majority of the officers making the removal, or by the president and clerk of such body or board. Both such dupli- cate orders or certified copies shall be delivered to the secre- tary of state, who shall record in his office one of such dupli- cates, and shall, if the officer removed is a state officer, deliver the other to such officer by messenger, if required by the governor, and otherwise by mail or as the secretary of state shall deem advisable, and shall, if directed by the governor, cause a copy thereof to be published in the state papers. If the officer removed be a local officer, he shall send the other of such duplicates to the county clerk of the county in which the officer removed shall have resided at the time he was chosen to the office, and such clerk shall file the same in his office, and forthwith notify the officer removed of his removal. § 26. Notice of existence of vacancy. — "When a judg- ment shall be rendered by any court convicting an officer of a OF THE State of New York. 145 §§ 27-28 The Public Officers Law. felony, or of a crime involving a violation of his oath of oflBce, or declaring the election or appointment of any officer to be void, or that the office of any officer has been forfeited or become vacant, the clerk of such court shall give notice thereof to the governor, stating the cause of such conviction or judgment. "Whenever a public officer shall die before the expiration of his term of office, or shall cease to be a resident of the politi- cal subdivision of the state or a municipal corporation in which he is required to be a resident as a condition of con- tinuing in the office, the county clerk of the county in which such officer shall have resided immediately prior to such death or removal, shall immediately give notice of such death or removal to the governor. If the governor is not authorized to fill any vacancy of which he shall have notice, he shall forthwith give notice of the existence of such vacancy to the officer or officers, or to the body or board of officers author- ized to fill the vacancy, or if such vacancy may be filled by an election, to the officers authorized to give notice of such election. § 27. Terms of officers chosen to fill vacancies.— If an appointment of a person to fill a vacancy in an appointive office be made by the officer, or by the officers, body or board of officers, authorized to make appointment to the office for the full term, the person so appointed to such vacancy shall hold office for the balance of the unexpired term. The term of office of an officer appointed to fill a vacancy in an elective office, shall be until the commencement of the political year next succeeding the first annual election after the happening of the vacancy, if the office be made elective by the consti- tution, or at which the vacancy can be tilled by election, if the office be otherwise made elective. § 28. Filling vacancies in office of officer appointed by governor and senate.— A vacancy which shall occur during the session of the senate, in the office of an officer appointed by the governor by and with the advice and consent of the senate, shall be filled in the same manner as an Original appointment. Such a vacancy occurring or existing while the 146 Excise and Hotel Laws The Public Officers Law. §§ 29-31 senate is not in session, shall be filled by the governor for a term which shall expire at the end of twenty days from the com- mencement of the next meeting of the senate. \_Thus amended ly Laws 1893, chap. 318, taking effect April 6, 1893.] § 29. Vacancy occurring in office of legislative appointee, during legislative recess. — When a vacancy shall occur or exist, otherwise than by expiration of term, during the recess of the legislature, in the oifice of any ofiicer appointed by the legislature, the governor shall appoint a per- son to fill the vacancy for a term which shall expire at the end of twenty days from the commencement of the next meeting of the legislature. § 30. Vacancies filled by legislature. — "When a vacancy occurs or exists, other than by removal, in the office of the secretary of state, comptroller, treasurer, attorney-general, or state engineer and surveyor, or a resignation of any such office to take effect at any future day shall have been made while the legislature is in session, the two houses thereof, by joint ballot, shall appoint a person to fill such actual or prospective vacancy. § 31. Filling other vacancies. — If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election. But if the term of such officer shall expire with the calendar year in which the appointment shall be made, or if the office be appointive, the appointee shall hold for the residue of the term. Aeticle III. POWEES AND DUTIES OF PUBLIC OFFICEES. Section 40. Official seals of court of appeals and state officers. 41. Business in public offices on public holidays. 42. Payment of expenses of public officers. 43. Laws repealed. 44. When to take effect. OF THE State of New York. 147 §§ 40-44 The Public Officers Law. Section 40. Official seals of court of appeals and state officers. — The seal of the court of appeals and of the second division of the court of appeals and of each state officer authorized to use an official seal, shall be of metal with the device of the arms of the state surrounded with the inscrip~ tion, State of New York, and the name of the court or official designation of the officer. The seal of each of such courts, the privy seal of the governor, and the seal of the secretary of state, comptroller, treasurer, state engineer and surveyor, the adjutant general, and of each of the other state officers at the capital, required to have an official seal shall be two and one- quarter inches in diameter, and of each other state officer authorized to have an official seal shall be one and three- quarters inches in diameter. Such seal heretofore provided by the secretary of state shall continue to be used by such courts and officers, and when defective from wear or otherwise, shall be delivered to the secretary of state who shall cause them to be repaired and returned, or to be defaced with a suitable . mark, or deposited with the ancient seals in the state library, and new seals to be provided for use instead. § 41. Business in public offices on public holidays. — Holidays and half holidays shall be considered as Sunday for all purposes relating to the transaction of business in the pub- lic offices of the state and of each county. § 42. Payment of expenses of public officers. — Every public officer who is not allowed any compensation for his services shall be paid his actual expenses necessarily incurred in the discharge of his official duties. § 43. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last col- umn is repealed. § 44. When to take effect. — This chapter shall takeefEect on October 1, 1892. 148 Excise and Hotel Laws. The Public Officers Law. Schedule of Laws Repealed. REVISED STATUTES. Part I, Chapter 6. AU. Laws of Chapter Sections. IN REVISION, SECTIONS. 1830 58 436 4 28 46 126..... .. 629 335 85 397 133 4 216 285 522 372 367 All. . . All... All. . . All... All... All. . . All... All... All... All. . . All... All... All... All... All... All... All. . . 31. 1837 Temporary. 31. 1848 1849 28, 30. 1849 28, 30. 1850 ,21. 1866 24. 1867 28, 30. 1873 8. 187.5 22 1876 22, 24. 1880 20. 1882 Temporary. 7. 1883 1883 Code Civ. Pro. 1887 Code Civ. Pro 1890 Code Civ. Pro. OHAPTEE Y. CODE PROVISIONS. Section 1. Penal Code provisions relative to (1) Intoxication; (2) Children in saloons, etc.; (3) Disorderly places; (4) Miscellaneous offenses. 2. Code of Criminal Procedure. (1) Relative to jurisdiction of the courts as to violations of the excise laws and the prac- tice therein; (2) Vagrants and disorderly persons. SECTION 1 — PENAL CODE PROVISIONS Belative to (1) Intoxication; (2) Violation of Sunday laws; (3) Children in saloons, etc.; (4) Disorderly places ; (5) Hotels, inns and restaurants ; and (6) Itliscellaneous offenses. (i) Intoxication. § 22. Intoxicated persons. — No act committed by a per- son while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a par- ticular species or degree of crime, the jury may take into consideration Hhe fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act. § 200. Intoxicated physicians.— A physician or surgeon, or person practicing as such, who, being in a state of intoxi- cation, without a design to effect death, administers a poison- ous drug or medicine, or does any other act as a physician or surgeon, to another person, which produces the death of the latter, is guilty of manslaughter in the second degree. § 357. Acts of intoxicated physicians. — A physician or fiurgeon, or person practicing as such, who, being in a state of intoxication, administers any poison, drug or medicine, or does any other act as a physician or surgeon, to another per- son, by which the life of the latter is endangered, or his health seriously affected, is guilty of a misdemeanor. § 420. Intoxication of persons running trains or boats. — A person who, being employed upon any railway as 150 Excise and Hotel Laws Penal Code Provisions; Sunday Laws. engineer, conductor, baggage master, brakeman, switch- tender, fireman, bridge-tender, flagman, signal man, or having charge of stations, starting, regulating or running trains upon a railway, or being employed as captain, engineer or other officer of a vessel propelled by steam, is intoxicated while engaged in the discharge of any of such duties, is guilty of a misdemeanor. [The part here inserted is subdivision 1 of section 430; subdivision a relates to any other willful violation of such duties. And see Excise Law, § 39, ante, p. 61.] (2) Violation of Sunday laws. § 267. Public traffic. — All manner of public selling or offering for sale of any property upon Sunday is prohibited, except that articles of food may be sold and supplied at any time before ten o'clock in the morning, and except also that meals may be sold to be eaten in the premises where sold or served elsewhere by caterers ; and prepared tobacco in places other than where spirituous or malt liquors are kept or offered for sale, and fruit, confectionery, newspapers, drugs, medi- cines and surgical appliances may be sold in a quiet and orderly manner at any time of the day. § 274. Disturbing religious meetings. — A person who wilfully disturbs, interrupts or disquiets any assemblage of people met for religious worship by any of the acts enumer- ated in the next section is guilty of a misdemeanor. § 275. Definition of offense.— The following acts, or any of them, except as permitted by chapter four hundred and seventy-nine of the laws of eighteen hundred and eighty- seven or the acts amendatory thereof, constitute a disturbance of a religious meeting. 1. Uttering any profane discourse, committing any rude or indecent act, or making any unnecessary noise, either within the place where such meeting is held, or so near it as to dis- turb the order and solemnity of the meeting. 2. Engaging in, or promoting, within two miles of the place where a religious meeting is held, any racing of animals OF THE State of New York. 151 Penal Code Provisions ; Children in Saloons. or gambling of any description ; or elsewhere than in a city or village keeping open any huckster shop, inn, store or grocery, in any other place than that in which such business shall have usually been carried on ; or elsewhere than in a city exhibiting within the distance aforesaid any shows or plays, unless the same shall have been duly licensed by the proper authorities. 3. Obstructing in any manner without authority of law, within the like distance, free passage along a highway to the place of such meeting. (3) Children in saloons, etc. § 290. Concert saloons. — A person who, 1. Admits to or allows to remain in any dance-house, concert saloon, theatre, museum, or in any place where wines or spiritu- ous or malt liquors are sold or given away, or in any place of entertainment injurious to health or morals, owned, kept or managed by him in whole or in part, any child actually or apparently under the age of sixteen years, unless accompanied by its parent or guardian, or 2. Suffers or permits any such child to play any game of skUl or chance in any such place, or in any place adjacent thereto, or to be or remain therein, or who admits to or allows to remain in any reputed house of prostitution or assignation or in any place where opium or any preparation thereof is smoked, any child actually or apparently under the age of sixteen years, or 3. Sells or gives away or causes or permits or procures to be sold or given away to any child actually or apparently under the age of sixteen years any beer, ale, wine or any strong or spirituous liquors ; or ^Y. * * * is guilty of a misdemeanor. § 292a. Penalty for sending messenger boys to certain places. — A corporation or person employing messenger boys who: 1. Knowingly places or permits to remain in a disorderly house, or in an unlicensed saloon, inn, tavern or other unli- 1.'52 Excise and Hotel Laws Penal Code Provisions ; Disorderly Places. censed place where malt or spirituous liquors or wines are sold, any instrument or device by which communication may be had between such disorderly house, saloon, inn, tavern or unlicensed place, and any office or place of business of such corporation or person ; or 2. Knowingly sends or permits any person to send any mes- senger boy to any disorderly house, unlicensed saloon, inn, tavern, or other unlicensed place, where malt or spirituous liquors or wines are sold on any errand or business whatsoever except to deliver telegrams at the door of such house, is guilty of a misdemeanor, and incurs a penalty of fifty dollars to be recovered by the district attorney. (4) Disorderly places. § 322. Keeping disorderly houses. — A person who keeps a house of ill-fame or assignation of any description, or a house or place for persons to visit for unlawful sexual intercourse, or for any lewd, obscene or indecent purpose, or disorderly house, or a house commonly known as a stale beer dive, or any place of public resort by which the peace, comfort, or decency of a neighborhood is habitually disturbed, or who, as agent or owner, lets a building or any portion of a building, knowing that it is intended to be used for any purpose speci- iied in this section, or who permits a building or a portion of a building to be so used, is guilty of a misdemeanor. This section shall be construed to apply to any part or parts of a house used for any of the purposes herein specified. (5) Miscellaneous offenses. § 369. Refilling or selling stamped mineral water bot- tles, etc. — Any person engaged in making, bottling, packing, selling or disposing of milk, ale, beer, cider, mineral water or other beverage, may register his title as owner of a trade- mark by filing with the secretary of state and the clerk of the county where the principal place of business of such person is situated, a description of the marks and devices used by him in his business, and in case the same has not been heretofore OF THE State of New Yo^k. 153 Penal Code Provisions ; Miscellaneous Oflfenses. published according to the laws existing at the time of publi- «ation, causing the same to be published in a newspaper of the ■county, three weeks, daily, if in the city of New York or Brooklyn, and weekly if in any other part of the state ; but no trade-mark shall be tiled which is not and cannot become a lawful trade-mark, or which is merely the name of a person, firm or corporation unaccompanied by a mark sufficient to dis- tinguish it from the same name when used by another person. After such registration the use without the consent of the owner of the trade-mark, so described, or the filling of any bottle, siphon, barrel, vessel or thing for the purpose of sale, •or for the sale therein of any article of the same general nature and quality which said bottle, siphon, barrel, vessel or other thing before contained, without the obliteration or defacement of the trade-mark upon it, when such trade-mark can be obliterated or defaced without substantial injury to the bottle, siphon, barrel, vessel or other thing so as to prevent its wrongful use, shall be deemed a misdemeanor. § 3T0. Keeping such bottles with intent to refill or sell them. — Any person engaged in the business of buying and selling bottles, siphons, barrels or other vessels or things, who shall, with intent to defraud the registered owner of a trade- mark, knowingly sell or offer for sale any bottle, siphon, bar- rel, vessel or other thing to any person, who he has reason to heheve wrongfully intends to use the trade-mark upon it, or to fill such bottle, siphon, barrel, vessel or other thing in vio- lation of section 369, shall be deemed guilty of a misdemeanor. § 407. Adulterated food and drink. — A person who, either, 1. Witli the intent that the same may be sold as unadul- terated or undiluted, adulterates or dilates wine, milk, distilled spirits or malt liquor, or any drug, medicine, food or drink, for man or beast, or, 2. Knowing that the same has been adulterated or diluted ; offers for sale or sells the same as unadulterated or undiluted, or without disclosing or ;in forming the purchaser that the same has been adulterated or diluted, in a case where special pro- 154 Excise and Hotel Laws Criminal Procedure Provisions; Jurisdiction of Courts. vision lias not been made by statute, for the punishment of the offense, or, 3. Sells or offers to sell, or stores or transports with intent to sell for any purpose other than cooling beer in casks, ice cut from any canal or from the wide waters or basins of any canal, unless the ice so sold, or offered for sale or stored or transported, is contained in a building, cart, car, sleigh, float or receptacle upon which is plainly marked in Roman or cap- ital letters, not less than eight inches square, the words, " canal ice ; " or, 4. Who shall adulterate maple sugar, maple syrup or honey, with glucose, cane sugar or syrup, beet sugar or syrup, or any other substance for the purpose of sale, or who shall know- ingly sell or offer for sale maple sugar, maple syrup or honey that has been adulterated in any way, shall be deemed guilty of a misdemeanor. § 408. Disposing of tainted food. — A person who, with intent that the same may be used as food, drink, or medicine, sells, or offers or exposes for sale, any article whatever which to his knowledge, is tainted or spoiled, or for any cause unfit to be used as such food, drink, or medicine, is guilty of a. misdemeanor. SECTION 2 — CODE OF CRIlinNAL PROCEDURE PROVISIONS Relative to jurisdiction, of the courts as to violations of the Excise Laws and practice therein. [We here insert certain sections of the Code of Criminal Procedure for the purposfr of showing the jurisdiction of the courts over matters pertaining to violations of the Excise Law and the preliminary practice necessary to bring into court persons accused of such violations. We have not deemed it expedient to include in this work all the provisions of the Code relative to the trial of excise cases.] § 22. Jurisdiction of supreme court. — The supreme court has jurisdiction : 1. To inquire, by the intervention of a grand jury, of all crimes committed or triable in the county ; but in respect to such minor crimes as courts of special sessions or police courts have exclusive jurisdiction to hear and determine, in the first OF THE State of New York. 165 Criminal Procedure Provisions; Jurisdiction of Courts. instance, the jurisdiction of the supreme court attaches only after the certificate mentioned in section fifty-seven of this code. 2. To try and determine all such crimes and to try all per- sons indicted for the same. 3. To deliver the jails of the county, or city and county,, according to lavf, of all prisoners therein. 4. To try any indictment found in any county court, or the court of general sessions of the city and>county of New York> which has been sent by order of the county court or general sessions to and received of the supreme court, or which has. been removed from any court into the supreme court, if, in the opinion of that court, it is proper to be tried therein. 5. To exercise the same jurisdiction as a county court in a cause or proceeding transferred according to sections forty and forty-one of this code. 6. By an order, entered in its minutes, to send any indict- ment found therein for a crime triable at the county court or the court of general sessions of the city and county of New York, to such court. Y. To grant new trials in all cases tried therein. 8. To let to bail any person committed, before and after indictment found upon any criminal charge whatever. 9. To exercise the powers conferred upon it by other pro- visions of this code and by special statutes. [Thus amended ly Laws 1895, chap. 880, talcing effect Janua/ry 1, 1896.] [The amendment substitutes the Supreme Court for the Court of Oyer and Terminer. It was made necessary hy the abolishing of the Court of Oyer and Terminer by the new Constitution, art. vi, § 6, taking effect January 1, 1896. Until that time the Courts of Oyer and Terminer have the jurisdiction prescribed in the above section.] City courts. [The City Court of Brooklyn and the Superior Court of Buffalo, the jurisdiction of which is set forth in Code of Criminal Procedure, §§ 36 and 38, respectively, are abolished by the new Constitution, art. vi, § 5, and their jurisdiction vested in the Supreme Couri; judges. This section of the Constitution takes effect January 1, 1896, and until that time the jurisdiction of such courts remains as now expressed in sections 26 and 37 of the Code.] § 31. City courts. — The city courts having original crimi- nal jurisdiction, are the recorder's court of Utica, the recorder's 156 Excise and Hotel Laws Criminal Procedure Provisions; Jurisdiction of Courts. court of Oswego, and the mayor's court of Hudson. Their jurisdiction in criminal matters is defined by special statutes, and continues as thus defined. [^Thus amended l/y Laws of 1895, chap. 880, talcing effect January 1, 1896.] [After January 1, 1896, these will be the only city courts possessing original criminal jurisdiction. By this section such jurisdiction is restricted to that defined by statute.] § 35. Indictments when sent to city court. — When an indictment is found in the supreme court in a county embrac- ing any of the cities in which a city court having original criminal jurisdiction is established, for any offense committed in that city, the court in whicli it was found may send it to the next city court in which it is triable, which must proceed to try and determine the indictment as if it had been found therein. [^Thus amended ly Lams of 1895, chap. 880, tahmg effect January 1, 1896.] [The only change made in this section by this amendment is the striking out of the words "Oyer and Terminer or of Sessions " and inserting in place thereof " Supreme Court." It would seem by the change that the County Court, acting in the place of the old Court of Sessions, has been deprived of the power of sending an indictment to a City Court.] County courts. LThe Courts of Sessions, except in the county of New York, are abolished from and after the last day of December, 1895. All the jurisdiction of the Court of Ses- sions in each county, except the county of New York, shall thereupon be vested in the County Courts thereof, and all actions and proceedings then pending in such Courts of Sessions shall be transferred to said County Courts for hearing and determination. Constitution^ art. 6, § 14. The f oUowing section of the Code of Criminal Procedure was amended in accordance with this section of the Constitution by the legislature of 1895. The only change is in striking out the words " Courts of Sessions " and inserting in place thereof " County Courts."] § 39. Jurisdiction. — The county courts embraced in this chapter have jurisdiction : 1. To inquire by the intervention of a grand jury of all crimes committed or triable in the county ; but in respect of such minor crimes, as courts of special sessions or police courts have exclusive jurisdiction to hear and determine, in the first instance, the jurisdiction of the county court attaches only OF THE State of New Toek. 157 Criminal Procedure Provisions; Jurisdiction of Courts. after the certificate mentioned in section fifty-seven of this code. 2. To try and determine indictments found therein by the supreme court of the county or by a city court in the county for crimes not punishable with death. 3. To hear and determine appeals from orders of justices of the peace, under provisions of law respecting the support of bastards. 4. To examine into the circumstances of persons committed to prison as parents of bastards, and to discharge them in the cases provided by law. 5. To try and determine complaints under the provisions of law respecting masters, apprentices and servants. 6. To review the convictions of disorderly persons actually imprisoned, and to execute the powers conferred and duties imposed by law in relation to those persons. 7. To continue or discharge recognizances, undertakings and bonds of persons bound to keep the peace or to be of good behavior, and to inquire into and determine the com- plaints on which they were founded. 8. To compel relatives of poor persons and committees of the estates of lunatics to support such persons and lunatics in the cases and manner prescribed by law. 9. To exercise the powers conferred by law in relation to the estates of persons absconding and leaving their families chargeable to the public. 10. To let to bail persons indicted therein for any crime triable therein, as provided by law. 11. To let to bail persons committed to the prison of the county before indictment for any ofEense triable in the court. 12. To discharge persons who have remained in prison with- out indictment or trial in the cases prescribed by law. 13. To revoke licenses in the cases and mode prescribed by law. 14. To grant new trials in all cases tried therein. 15. To execute such other powers and duties as may be 158 Excise and Hotel Laws Criminal Procedure Provisions; Jurisdiction of Courts. conferred by statute, or are now defined by special statute relating thereto. [Thus amended hy Laws 1895, chap. 880, ■taking effect January 1, 1896. Court of general sessions of the city and county of New York. [This court was not affected by the provisions of article vi of the new Constitution. The Court of Sessions of the city of Brooklyn was abolished by Constitution, art. vi, § 14, and the following sections were amended by the legislature of 1895 by striking out the words " and the Court of Sessions of the county of Kings."] § 51. Jurisdiction. — The court of general sessions of the ■city and county of New York has jurisdiction : 1. To try, determine and punish according to law, all •crimes cognizable within said city and county, including crimes, punishable with death or imprisonment in the state prison ior life. 2. To exercise, in cases arising in said city and county the same powers as are conferred by this code upon county courts in other counties. 3. To try and determine any indictment found in the supreme court in said city and county, which has been sent by order of that court to and received by the court of general sessions therein ; and, 4. To exercise such powers as are now prescribed by special statute relating thereto. [Thus amended hy Laws 1895, chap. 880, taking effect January 1, 1896.] Courts of special sessions. § 56. Jurisdiction of courts.— Subject to the power of removal provided for in this chapter, courts of special sessions, ■except in the city and county of New York and the city of Albany, have in the iirst instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows : 9. Intoxication of a person engaged in running any loco- motive engine upon any railroad, or while acting as conductor of a car, or train of cars, on any such railroad, or a misde- meanor committed by any person on a railroad car or train. OF THE State of New Yoek. 159 Criminal Procedure Provisions; Jurisdiction of Courts. 30. Selling liquors in a court-house or jail contrary to law. 33. "When a complaint is made to or a warrant is issued by a committing magistrate, for a violation of the laws relating to excise and the regulation of taverns, inns and hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks. 34. Frauds on hotel, inn, tavern and boarding-house keepers. 36. Such other jurisdiction as is now provided by special statute or municipal ordinance authorized by statute. § 57. Removing case to grand jury. — Upon filing with the magistrate, before whom is pending a charge for any of the crimes specified in the last section, a certificate of the county judge of the county, or of any justice of the supreme court, that it is reasonable that such charge be prosecuted by indictment, and fixing the sum in which the defendant shall give bail to appear before the grand jury ; and upon the defendant giving bail, as specified in the certificate, all pro- ceedings before the magistrate shall be stayed ; and he shall, within five days thereafter, make a return to the district attor- ney of the county of all proceedings had before him upon the charge, together with such certificate and the undertaking given by the defendant thereon ; and the district attorney shall present such charge to the grand jury ; provided, how- ever, that no such certificate shall be given except upon at least three days' notice to the complainant or to the district attorney of the county of the time and place for the applica- tion therefor. § 58. Procedure in such cases. — When a person is brought before a magistrate charged with the commission of any of the crimes mentioned in section 56, and asks that his case be presented to the grand jury, the proceedings shall be adjourned for not less than five nor more than ten days ; and if on or before the adjourned day the certificate mentioned in section 57 is not filed with the magistrate before whom the charge is pending, and bail given by the defendant as therein prescribed, the magistrate shall proceed with the trial, and when the defendant is brought before the magistrate, it shall 160 Excise and Hotel Laws Criminal Procedure Provisions ; Jurisdiction of Courts. be the duty of the magistrate to inform him of his rights under section 57 of this section. § 59. Powers of the court of special sessions. — A court of special sessions, having jurisdiction in the place where any of the crimes specified in section 56 is committed has juris- diction to try and determine a complaint for such crime, and to impose the punishment, prescribed upon conviction, unless the defendant obtains the certificate and gives the bail men- tioned in section 57. § 60. Special sessions in Brooklyn. — Where any jury is required for the trial of any crime or misdemeanor in courts of special sessions in the city of Brooklyn, the said courts shall have power to summon as many jurors as the court may deem necessary for the trial of such action or misdemeanor. The said court of special sessions in the city of Brooklyn shall have power to take bail in a reasonable amount for all mis- demeanors, and shall have power to take undertakings in bail either with or without the defendant thereon in the discretion of the said court. All fines imposed by the said courts of special sessions in the city of Brooklyn, or by police magis- trates in said city, upon defendants convicted in said courts or by such magistrates, of crimes, iiusdemeanors or violations of any city ordinance of the city of Brooklyn, which are paid by such defendants so convicted to the sheriff of the county of Kings or to the keeper of the penitentiary of said city, shall be paid monthly by the said sheriff or said keeper to the respective clerks of the courts in which the said fines were imposed ; provided, however, that the said sheriff or keeper of the penitentiary of Kings county may, in his discretion, pay all of such fines so paid to them, or either of them, directly to the city treasurer of the city of Brooklyn. In an examina- tion held in any criminal proceeding by a police magistrate in the city of Brooklyn, the testimony of each witness may, in the discretion of the magistrate, be taken as a deposition by tlie official stenographer of the court in which said magistrate holds such examination. Such minutes of the testimony OF THE State of New Yoek. 161 Criminal Procedure Provisions ; Jurisdiction of Courts. when so taken, and when certified by the stenographer and by the magistrate who held such examination, shall both, with, reference to sucli examination, and in all procedure in con- nection with such examination provided for by any section of this code not inconsistent herewith, be regarded as actually taken down in writing by such magistrate and subscribed by the witness or witnesses at such examination. § 62. By whom held. — Unless provision is otherwise made by law, a court of special sessions must be held by one justice of the peace of the town or city in which the same is held, and sections 293, 294, 295, 310, 332, 838, 334, 335, 836, 337,, 388, 389, 340, 841, 842 and 359 to 450, both inclusive, shall apply as far as may be to proceedings in all courts of special, sessions or police courts. § 63. Recorder of a city to hold court. — A recorder of a city has power to hold a court of special sessions therein. § 64. Jurisdiction of special sessions in New York, city. — The court of special sessions in the city and county of If ew York has jurisdiction : 1. To try and determine according to law all complaints for misdemeanors, unless the defendant elects to be tried at the court of general sessions, or the court of special sessions sends, the case to the court of general sessions for trial ; 2. To remit fines imposed by it, and in place of the fine= remitted, substitute, in its discretion, imprisonment ; 3. By an order entered in its minutes, to declare forfeited the recognizance of a defendant, taken by the court, to appear- thereat, upon his failure so to appear ; 4. To impose the same punishment as is authorized by- statute to be inflicted in like cases tried in the court of general- sessions of the peace of that city and county ; 5. By warrant attested in the name of any one of the justices authorized to hold the court, signed by the clerk thereof, and entered in the minutes of the court, to enforce its judgments and orders ; to bring before the court all accused persons for trial and judgment in all cases m which it has. 162 Excise and Hotel Laws Criminal Procedure Provisions ; Jurisdiction of Courts. jurisdiction ; to issue subpoenas for the attendance of wit- nesses, attachments for contempt, and other process necessary for the proper conduct of the court ; 6. To require the principal in a recognizance to appear at the court, and enter into a further recognizance to keep the peace, or to be of good behavior, or both, toward the people of the state, for a period not exceeding one year, and in default thereof to commit him to prison till he be discharged there- from according to law. § 68. Jurisdiction of special sessions in Albany. — The court of special sessions in the city of Albany has jurisdiction : 1. To try and determine all cases of petit larceny charged as a first offense, and all misdemeanors, not being infamous crimes, committed within the city. 2. To take recognizances to appear before the court at a suc- ceeding term from persons charged with a crime or mis- demeanor, or triable therein. 3. To impose and enforce sentence of fine or imprison- ment, or both, in the discretion of the court, in all cases within its jurisdiction, upon conviction to the same extent as the county court of the county of Albany could do in like cases. 4. To punish a contempt of court in the same manner and to the same extent as the supreme court could do in like cases. 5. In cases where a jury trial is demanded by a defendant, to draw from the jury box containing the names of jurors who reside in the city of Albany, such number of names as the recorder or county judge may direct, and to require the sheriff of the county to summon the persons so drawn to appear at the time designated foi trial, to impanel a jury of twelve men, to require the attendance of additional jurors and to punish a juror or witness neglecting to appear, in the same manner and to the same extent as the supreme court could do in like cases. 6. On motion of the district attorney, to issue a warrant for OF THE State of New Yoek. 163 Criminal Procedure Provisions; Practice. the arrest of a person who neglects to appear agreeably to the requirements of a recognizance to appear thereat, commanding the officer executing the same to bring the party forthwith before the court, if in session, otherwise to commit him to the common jail of the county, there to remain until delivered by due course of law. [Thus amended iy Laws 1895, chajp. 880= tahing effect January 1, 1896.1 [The only change made by the amendment of 1895 is to substitute Supreme Court for the Court of Oyer and Termiii£r in subdivision 4.] Police courts. § T4. Jurisdiction. — Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called police courts, and courts of special sessions are also called police courts, and are so designated in different parts of the code. [The legislature may clothe police justices veith the exclusive right to issue criminal processes within the limits of their jurisdiction. It may also takeaway the jurisdiction of a justice of the peace in criminal cases, since it necessarily follows from the power to create a police justice. People ex rel. Lynch v. Duffy, 49 Hun, 376. It is held that the legislature intended by this section to preserve the j urisdiction of police justices as it existed before the adoption of the Code. Matter of McMahon, 65 How. Pr. 385.] Practice. § 145. The information. — The information is the allega- tion made to a magistrate that a person has been guilty of some designated crime. § 146. A magistrate is an officer, having power to issue a warrant for the arrest of a person charged with a crime. § 147. Who are magistrates. — The following persons are magistrates: 1. The justices of the supreme court. 2. The judges of any city court. 3. The county judges and special county judges. 4. The city judge of the city of New York, and the judges of the court of general sessions in the city and county of New York. 164 Excise and Hotel Laws Criminal Procedure Provisions ; Warrant of Arrest. 5. The justices of the peace. 6. The police and other special justices appointed or elected in a city, village or town. 7. The mayors and recorders of cities. But in the city of New York, the only magistrates authorized to commit children to institutions, are the justices of the supreme court, the recorder, the city judge of the city of New York, and judges authorized to hold the court of general sessions, and the police justices. The warrant of arrest. § 148. Examination of the prosecutor and his wit- nesses, upon the information. — When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any wit- nesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. § 149. Depositions, what to contain. — The depositions must set forth the facts stated by the prosecutor and his wit- nesses, tending to establish the commission of the crime and the guilt of the defendant. § 150. In what case warrant of arrest may be issued. — If the magistrate be satisfied therefrom, that the crime com- plained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest. § 151. Form of warrant. — A warrant of arrest is an order in writing in the name of the people, signed by a magistrate, commanding the arrest of the defendant, and may be sub- stantially in the following form, the blanks being properly filled : " County of " In the name of the people of the State of New York, to any peace ofiicer in the : " Information, upon oath, having been this day laid before me that the crime of has been committed and accusing thereof, OF THE State of New Yoek. 165 Criminal Procedure Provisions ; Warrant of Arrest. "You are therefore commanded forthwith to arrest the above-named , and bring him before , iat "Dated at , this day of , 18. .. "Justice of the Peace." The warrant must direct that the defendant be brought before the magistrate issuing the warrant ; or, if the offense was committed in another town, and is one which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought "before a magistrate of the town in which the offense was committed. [Thus amended hy La/ws 1895, chap. 880, taJcvng effect January 1, 1896.] [The amendment made in this section is not a change in substance, hut is for the purpose of making the last paragraph more explicit. The words ' ' he must direct that the defendant be brought " are inserted in the last clause of the last paragraph.] § 152. Name or description of the defendant, in the warrant and statement of the offense. — The warrant must specify the name of the defendant, or if he be unknown to the magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the magistrate has authority to issue the warrant, and the time of issuing it, and the city, town or village where it is issued, and be signed by the magistrate with his name of ofBce. § 153. Warrant to be directed to and executed by a peace ofificer. — The warrant must be directed to, and execu- ted by, a peace officer. § 154. Who are peace officers. — A peace olficer is a sheriff of a county, or his under sheriff or deputy, or a con- stable, marshal, police constable or policeman of a city, town or village. § 155. Warrant issued by certain judges. — If the war- cant be issued by a justice of the supreme court, recorder, 166 Excise and Hotel Laws Criminal Procedure Provisions ; Warrant of Arrest. city judge or judge of a court of general sessions in the city and county of New York, or by a county judge or by the recorder of a city, where jurisdiction is conferred by law upon such recorder or by a judge of the city court, it may be directed generally to any peace officer in the state, and may be executed by aLy of those officers to whom it may be dehvered. [Thus amended hy Laws 1895, chaja. 880, taking effect January 1, 1896.] [The amendment TOade in tliis section is for the sake of conformity with the new Constitution abolishing certain City Courts and Courts of General Sessions after December 31, 1895.] § 156. Id.; by other magistrates. — If it be issued by any other magistrate, it may be directed generally to any peace officer in the county in which it is issued, and may be execu- ted in that county ; or if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of such other county indorsed upon the warrant, signed by him with his name of office and dated at the city, town or village where it is made, to the following effect : " This warrant may be executed in the county of Monroe " [or as the case may be]. § 157. Indorsement on the warrant, for service in another county, how and upon what proof to be made. — The indorsement mentioned in the last section cannot, how- ever, be made, unless upon the oath of a credible witness, in writing, indorsed on or annexed to the warrant, proving the handwriting of the magistrate by whom it was issued. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. § 159. Defendant, arrested for a misdemeanor.— If the crime charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit the defendant to bail for his appearance before the magistrate named in the warrant, and take bail from him accordingly. OF THE State of New Yoek. 107 Criminal Procedure Provisions ; Warrant of Arrest. § 160. Proceedings on taking bail. — On taking bail the magistrate must certify that fact on the warrant and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and, without delay, deliver the warrant and undertaking to the magistrate before whom the defend- ant is required to appeai*. § 161. Where bail is not given. — If, on the admission of the defendant to bail, as provided in section one hundred and fifty-nine, bail be not forthwith given, the officer must take the defendant before a magistrate as directed by the warrant, or some other magistrate in the same town or county, as pro- vided in section one hundred and sixty-four. § 164. When magistrate is unable to act. — When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, or before a magistrate of the town in which the offense was committed, he may, if that magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the town in which the magistrate before whom the warrant is returnable resides, if there be such a magistrate accessible and qualified to act, and otherwise, before the near- est or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate the warrant, with liis return indorsed and subscribed by him. § 165. Defendant to be taken before a magistrate with- out delay.— The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night. § 166. Defendant before another magistrate than the one who issued the warrant.— If the defendant be taken before a magistrate other than the one who issTied the war- rant, the depositions on which the warrant was granted must be sent to that magistrate, or if they cannot be procured, the prosecutor and his witnesses must be summoned to give their testimony anew. 168 Excise and Hotel Laws Criminal Procedure Provisions ; Examination of Defendant. Hxamination, commitment and discharge of defendant. § 188. Magistrate to inform defendant of the charge, and his right to counsel. — "When the defendant is brought before a magistrate upon an arrest either with or without warrant on a charge of having committed a crime, the magis- trate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had. § 189. Time to send, and sending for counsel. — He must also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose ; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the town or city, as the defendant may name. The officer must, without delay and without fee, perform that duty. § 190. On appearance of counsel, or waiting for him a reasonable time, examination to proceed. — The magis- trate, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, must, after waiting a reasonable time therefor, proceed to examine the case, unless the defendant waives examination and elects to give bail, in which case the magisti-ate must admit the defendant to bail if the crime is bailable, as provided in sec- tion 210 ; and in that case witnesses in attendance or shown to be material for the people may be required to appear and testify, or to be examined conditionally as prescribed in sec- tions 215, 216, 217, 218, 219, 220. §191. When to be completed; adjournment. — The examination must be completed at one session, unless the magistrate, for good cause shown, adjourn it. The adjourn- ment cannot be for more than two days at each time, unless b}' consent or on motion of the defendant. § 192. On adjournment, defendant to be committed, or discharged on deposit of money.— If an adjournment be OF THE State of New York. 169 Criminal Procedure Provisions; Examination of Defendant. had for any cause, the magistrate must commit the defendant ior examination, or discharge him from custody, upon his giving bail to appear during the examination, or upon the deposit of money as provided in this Code, to make sure of his appearance at the time to which the examination is adjourned. § 193. Form of commitment. — The commitment for examination is by an indorsement signed by the magistrate, on the warrant of arrest, to the following effect : " The within named A. B., having been brought beiore me under this Tvarrant, is committed for examination, to the sheriff of the county of ," or in the city and county of J!^ew York, " to the keeper of the city prison of the city of New York." § 194. Depositions, to be read on examination, and witnesses examined. — At the examination, the magistrate must, in the first place, read to the defendant the depositions •of the witnesses examined on the taking of the information, •and if the defendant request it, or elects to have the exami- nation, must summon for cross-examination the witnesses so examined, if they be in the county. He must also issue sub- poenas for additional witnesses required by the prosecutor or the defendant. § 195. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf. — The witnesses must be examined in the presence of -the defendant, and may be cross-examined in his behalf. § 196. Defendant to be informed of his right to make a statement. — "When the examination of the witnesses on the part of the people is closed, the magistrate must inform the defendant, that it is his right to make a statement in rela- tion to the charge against him (stating to him the nature thereof) ; that the statement is designed to enable him, if he see fit, to answer the charge and to explain the facts alleged Bo-ainst him ; that he is at liberty to waive making a statement ; :and that his waiver cannot be used against him on the trial. 170 Excise and Hotel Laws Criminal Procedure Provisions; Statement of Defendant. § 197. Waiver of his right and its effect. — If the defendant -waive his right to inake a statement, the magistrate must make a note thereof, immediately following the deposi- tions of the witnesses against the defendant. § 198. Statement, how taken. — If the defendant choose to make a statement, the magistrate must proceed to take it. in writing, without oath, and must put to the defendant the- following questions only : What is your name and age ? Where were you born ? Where do you reside, and how long have you resided there? What is your business or profession ? Give any explanation you may think proper, of the circum- stances appearing in the testimony against you, and state any facts which you think will tend to your exculpation. § 199. Statement to be read. — The answer of the defendant to each of the questions must be distinctly read to him as it is taken down. He may thereupon correct or add to his answer, and it must be corrected until it is made conformable to what he declares to be the truth. § 200. How reduced to writing, and authenticated. — The statement must be reduced to writing by the magistrate, or under his direction, and authenticated in the following manner : 1. The authentication must set forth in detail that the defendant was informed of his rights as provided in section 196, and that, after being so informed, he made the statement ; 2. It must contain the questions put to him, and his answers thereto, as provided in sections 198 and 199 ; 3. It may be signed by the defendant, or he may refuse to sign it ; but if he refuse to sign, his reason therefor must be stated as he gives it ; 4. It must be signed and certified by the magistrate. § 201. After statement of waiver, defendant's witnesses to be examined.— After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, must be sworn and examined. OF THE State of New Yoek. 171 Crimmal Procedure Provisions; Examination of Witnesses. § 202. Witnesses to be kept apart. — The witnesses pro- duced on the part either of the people or of the defendant cannot be present at the examination of the defendant ; and while a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other, until they are all examined. § 203. Who may be present at examination. — The magistrate may also exclude from the examination every per- son exbept the clerk of the magistrate, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel and the officer having the defendant in custody. § 204. Testimony, how taken and authenticated. — The testimony given by each witness must be reduced to writing, as a deposition, by the magistrate or under his direction, and authenticated in the following manner : 1. The authentication must state the name and age of the witness, his place of residence, and his business or profession ; 2. It must, unless deposition by question and answer be waived by the defendant and the witness, contain the questions put to the witness, and his answers thereto ; each answer being distinctly read to him as it is taken down, and being corrected or added to until it is made conformable to what he declares to be the truth ; 3. If a question put be objected to on either .side, and over- ruled, or the witness decline answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated ; i. The deposition must be signed by the witness, or, if he refuse to sign it, his reason for refusing must be stated in writ- ing as he gives it ; 5. It must be signed and certified by the magistrate. § 205. Deposition, and statement ; how and by whom kept. The magistrate or his clerk must keep the depositions taken on the information or on the examination, and the state- 172 Excise and Hotel Laws Criminal Procedure Provisions; Discharge or Commitment. ment of the defendant, if any, until they are returned to the proper court ; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offense, the attorney-general, the district attorney of the county, the defendant and his counsel and the complainant and his counsel. § 206. Defendant entitled to copies of depositions and statement.^ — If the defendant be held to answer the charge, the magistrate or his clerk having the custody of the depo- sitions taken on the information or examination, and of the statement of the defendant, must, on payment of his fees at the rate of live cents for every hundred words, and within two days after demand, furnish to the defendant, or his counsel, a copy of the depositions and statement, or permit either of them to take a copy. § 207. Defendant, when and how to be discharged. — After hearing the proofs, and the statement of the defendant, if he have made one, if it appear, either that a crime has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an indorsement on the depo- sitions and statement, signed by him, to the following effect : " There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order him to be discharged." § 208. When and how to be committed. — If, however, it appear froni the examination that a crime has been com- mitted, and that there is sufficient cause to believe the defend- ant guilty thereof, the magistrate must, in like manner, indorse on the depositions and statement, an order, signed by him, to the following effect : " It appearing to me by the within depo- sitions (and statement, if any) that the crime therein mentioned [or any other crime, according to the fact, stating generally the nature thereof] has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same." OF THE State of New Yoek. 173 Criminal Procedure Provisions; Commitment and Trial. § 209. Order for commitment. — If the crime be not bail- able, the following words, or words to the same eflEect, must be added to the indorsement : " and that he be committed to the sheriff of the county of " [or in the city and county of New York, " to the keeper of the city prison of the city of New York."] § 210. Certificate of bail being taken. — If the crime be bailable, and bail be taken by the magistrate, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208 : " and I have admitted him to bail to answer, by the imdertaking hereto annexed." § 211. Defendant to choose how he shall be tried. — If the crime with which the defendant is charged be one triable, as hereinbefore provided, by a court of special sessions of the county in which the same was committed, the magistrate, before holding the defendant to answer, must inform him of his right to be tried by a jury after indictment, and must ask him how he will be tried. If the defendant shall require to be tried by a jury after indictment, he can only be held to answer to a court having authority to inquire by the interven- tion of a grand jury into offenses triable in the county. If he shall not so require, he may be held to answer at the court of special sessions. § 212. Order for bail, on commitment. — If the crime be bailable, and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208, " and that he be admitted to bail in the sum of dollars, and he be committed to the sheriff of the county of " [or in the city and county of New York, " to the keeper of the city prison of the city of New York"] until he give such bail. §213. Form of commitment. — If the magistrate order the defendant to be committed as provided in sections 209 and 212, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the 1Y4 Excise and Hotel Laws Criminal Procedure Provisions; Commitment; Grand Jury. officer to whom he is committed, or, if that oiBcer be not present, to the peace officer, who must immediately deliver the defendant into the proper custody, together with the commitment. § 214. Form of commitment. — The commitment must be to the following effect : " County of Albany [or as the case may be]. " In the name of the people of the state of New York : ' To to the sheriff of the county of Albany ' [or in the city and county of New York, ' to the keeper of the city prison of the city of New York '] : " An order having been this day made by me, that A. B. be held to answer to the court of upon a charge of [stating briefly the nature of the crime], you are commanded to receive him into your custody and detain him, until he be legally discharged. " Dated at the city of Albany [or as the case may be], this day of , 18 . . . " C. D., Justice of the Peace [or as the case may be]." § 215. Undertaking of witnesses to appear, when and how taken. — On holding the defendant to answer, the mag- istrate may take from each of the material witnesses examined before him on the part of the people, a written undertaking, to the effect that lie will appear and testify at the court to which the depositions and statement are to be sent, or that he will forfeit the sum of $100. Grand jury. § 252. Power of grand jury to inquire into crimes. — The grand jury has power and it is their duty to inquire into all Climes committed or triable in the county and present them to the court. § 255. Evidence receivable before the grand jury.— In the investigation of a charge, for the purpose of indictment, the grand jury can receive no other evidence than : OF THE State of New Yoke. 175 Criminal Procedure Provisions; Grand Jury. 1. Such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence ; or 2. The deposition of a witness, in the cases mentioned in the third subdivision of section 8. § 256. Same. — The grand jury can receive none but legal evidence. § 25Y. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced. — The grand jury is not bound to hear evidence for the defendant ; but it is their duty to weigh all the evi- dence submitted to them, and when they have reason to believe that other evidence, within their reach, will explain away the charge, they should order such evidence to be pro- duced ; and for that purpose may require the district attorney to issue process for the witnesses. § 258. Degree of evidence, to warrant an indictment. — The grand jury ought to iind an indictment, when all the evidence before them, taken together, is such as in their judg- ment would, if unexplained or uncontradicted, warrant a con- viction by the trial jury. § 259. Grand jurors must declare their knowledge as to commission of a crime. — If a member of the grand jury know, or have reason to believe, that a crime has been committed, which is triable in the county, he must declare the same to his fellow jurors, who must thereupon investigate the same. § 260. Grand jury must inquire as to persons impris- oned on criminal charges and not indicted ; the condition of public prisons ; and the misconduct of public officers. — The grand jury must inquire : 1. Into the case of every person imprisoned in the jail of the county, on a criminal charge, and not indicted ; 2. Into the condition and management of the public prisons in the county ; and 3. Into the willful and corrupt misconduct in office, of pub- lic officers of every description, in the county. 176 Excise and Hotel Laws Criminal Procedure Provisions; Vagrants. (2) Vagrants and disorderly persons. § 887. Who are vagrants. — The following persons are vagrants : 1. A person who, not having visible means to maintain him- self, lives without employment ; 2. A person who, being an habitual drunkard, abandons, neglects or refuses to aid in the support of his family ; 3. A person who has contracted an infectious or other dis- ease, in the practice of drunkenness or debauchery, requiring charitable aid to restore him to health ; 4. A common prostitute, who has no lawful employment, whereby to maintain herself ; 5. A person wandering abroad and begging, or who goes about from door to door, or places himself in the streets, high- ways, passages, or other public places, to beg or receive alms ; 6. A person wandering abroad and lodging in taverns, groceries, ale-houses, watch or station-houses, out-houses, mar- ket places, sheds, stables, barns or uninhabited buildings, or in the open air, and not giving a good account of himself ; 7. A person who, having his face painted, discolored, cov- ered or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway, or in a field, lot, wood or inclosure ; 8. Any child between the age of five and fourteen, having suflScient bodily health and mental capacity to attend the pub- lic schools, found wandering in the streets or lanes of any city or incorporated village, a truant, without any lawful occupation. § 890. Peace officers, when required by any person, to carry vagrant before a magistrate for examination. — A peace officer must, when required by any person, take a vagrant before a justice of the peace or police justice of the same city, village or town, or before the mayor, recorder, or city judge, or judge of the general sessions of the same city, for the purpose of examination. OF THE State of New Yoek. 177 Criminal Procedure Provisions; Disorderly Persons. § 899. Who are disorderly persons. — The following are disorderly persons : 1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becom- ing a burden upon the public, or who neglect to provide for them according to their means ; 2. Persons who threaten to run away, and leave their wives or children a burden upon the public ; 3. Persons pretending to tell fortunes, or where lost or stolen goods may be found ; 4. Keepers of bawdy houses or houses for the resort of pros- titutes, drunkards, tipplers, gamesters, habitual criminals, or other disorderly persons ; 5. Persons who have no visible profession or calling, by which to maintain themselves, but who do so, for the most part by gaming ; 6. Jugglers, common showmen and mountebanks, who exhibit or perform for profit puppet shows, wire or rope dan- cers, or other idle shows, acts or feats ; 7. Persons who keep, in a public highway or place, an apparatus or device for the purpose of gaming, or who go about exhibiting tricks or gaming, therewith ; 8. Persons who play, in a pubhc highway or place, with cards, dice or any other apparatus or device for gaming ; 9. Habitual criminals within the provisions of this Code. § 900. On complaint, warrant to be issued. — Upon complaint on oath, to a justice of the peace or police justice of a city, village or town, or to the mayor, recorder, city judge or judge of the general sessions of a city, against a person, as being disorderly, the magistrate must issue a warrant, signed by him, with his name of office, requiring a peace officer to arrest the defendant, and bring him before the magistrate for examination. OHAPTEE YI. UNITED STATES STATUTES AND REGULA- TIONS RELATING TO WHOLESALE AND RETAIL LIQUOR DEALERS. Section 1. Provisions applicable to special taxes upon wholesale and retail liquor dealers. 3. Instructions to special tax-payers. 3. Regulations concerning the tax on distilled spirits, applicable to wholesale and retail liquor dealers. section 1 — provisions applicable to special taxes upon wholesale and retail liattob dealers. [united states revised statutes, 1878, as amended.] § 3232. Not to engage in business until tax is paid. — No person shall be engaged in or carry on any trade or business hereinafter mentioned until he has paid a special tax therefor in the manner hereinafter provided. § 3233. Registry. — Every person engaged in any trade or business on which a special tax is imposed by law shall register with the collector of the district his name or style, place of residence, trade or business, and the place where such trade or business is to be carried on. In case of a firm or company, the names of the several persons constituting the same, and their places of residence shall be so registered. § 3234. When on* tax to be paid. — Any number of persons doing business in copartnership at any one place shall be required to pay but one special tax. § 3235. Additional special tax. — The payment of the special tax imposed shall not exempt from an additional special tax the person carrying on a trade or business in any other place than that stated in the collector's register ; but nothing herein contained shall require a special tax for the storage of goods, wares, or merchandise in other places than the place of business, nor, except as hereinafter provided, for the sale by manufacturers or producers of their own goods, wares, and merchandise, at the place of production or manu- OF THE State of New York. 179 U. S. Statutes; Provisions Applicable to Special Taxes. facture and at their principal office or place of business, provided no goods, wares, or merchandise shall be kept except as samples at said office or place of business. § 3236. Tax for more than one business. — Whenever more than one of the pursuits or occupations hereinafter described are carried on in the same place by the same person at the same time, except as hereinafter provided, the tax shall be paid for each according to the rates severally prescribed. § 3237. Tax, when due. — All special taxes shall become due on the first day of May, in each year, or on commencing any trade or business on which such tax is imposed. In the former case the tax shall be reckoned for one year ; and in the latter case it shall be reckoned proportionately, from the first day of the month in which the liability to a special tax commenced to the first day of May following. § 3238. Special taxes, how paid ; stamps.— All special taxes imposed by law, including the tax on stills or worms, shall be paid by stamps denoting the tax, and the commis- sioner of internal revenue is required to procure appropriate stamps for the payment of such taxes ; and the provisions of sections thirty-three hundred and [thirteen] [twelve] and thirty-four hundred and forty-six, and all other provisions of law relating to the preparation and issue of stamps for dis- tilled spirits, fermented hquors, tobacco and cigars, shall, so far as apphcable, extend to and include such stamps for special taxes ; and the commissioner of internal revenue shall have authority to make all needful regulations relative thereto. § 3239. Posting of stamps.— Every person engaged in any business, avocation or employment, who is thereby made liable to a special tax, except tobacco peddlers, shall place and keep conspicuously in his establishment or place of business all stamps denoting the payment of said special tax ; and any per- son who shall, through negligence fail to so place and keep said [stamp] [stamps], shall be liable to a penalty equal to the special tax for which his business rendered himhable, and the costs of prosecution ; but in no case shall said penalty be less than ten 180 Excise and Hotel Laws U. S. statutes; Provisions Applicable to Special Taxes. dollars. And where the failure to comply with the foregoing provision of law shall be through willful neglect or refusal, then the penalty shall be double the amount above prescribed : Provided, That nothing in this section shall in any way affect the liability of any person for exercising or carrying on any trade, business, or profession, or doing any act for the exer- cising, carrying on, or doing of which a special tax is imposed by law, without the pajonent thereof. § 3240. Collector to keep list of taxpayers. — Each col- lector of iaternal revenue shall, under regulations of the com- missioner of internal revenue, place and keep conspicuously in his office for public inspection, an alphabetical list of the names of all persons who shall have paid special taxes within his dis- trict, and shall state thereon the time, j)lace and business for which such special taxes have been paid. § 3241. Business to be carried on in premises by legal representatives.— When any person who has paid the special tax for any trade of business dies his wife or child, or executors or administrators, or other legal representatives, may occupy the house or premises, and in like manner carry on, for the residue of the term for which the tax is paid, the same trade or busi- ness as the deceased before carried on, in the same house and upon the same premises, without the payment of any additional tax. And when any person removes from the house or premises for which any trade or business was taxed to any other place, he may carry on the trade or business specified in the collector's register at the place to which he removes, without the payment of any additional tax : Provided, That all cases of death, change or removal, as aforesaid, with the name of the successor to any person deceased, or of the person making such change or removal, shall be registered with the collector, under regulations to be prescribed by the commissioner of internal revenue. § 3242. Penalties. — Every person who carries on the bus- iness of a rectifier, wholesale liquor dealer, retail liquor dealer, or manufacturer of stills, without having paid a special tax as OF THE State of New Yoek. 181 U. S. Statutes; Provisions Applicable to Special Taxes. required by law, shall, for every such offense, be fined not less than one thousand dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than two years. And all distilled spirits or wines, and all apparatus fit or intended to be used for the distillation or rectification of spirits or the compounding of liquors, owned by such person, wherever found, and all distilled spirits or wines and personal property found in the rectifying establishment, or in any build- ing, room, yard, or inclosure connected tlierewith, and used with or constituting a part of the premises, shall be forfeited to the United States. Every person who carries on the busi- ness of a manufacturer of tobacco, snuff, or cigars, dealer in manufactured tobacco, dealer in leaf -tobacco, or retail dealer in leaf-tobacco, without having paid a special tax therefor, as provided by law, shall, besides being liable to the payment of the tax, be fined not more than five hundred dollars or be imprisoned not more than one year, or both, at the discretion of the court. And every person who carries on the business of a brewer, or wholesale or retail dealer in malt liquors, with- out having paid a special tax therefor as required by law, shall, besides being liable to the payment of the tax, be fined not less than ten dollars nor more than five hundred dollars. § 3243. Person paying tax not exempt from state penalties. — The payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any state for carrying on the same within such state, or in any manner to authorize the com- mencement or continuance of such trade or business contrary to the laws of such state or in places prohibited by municipal law ; nor shall the payment of any such tax be held to pro- hibit any state from placing a duty or tax on the same trade or business for state or other purposes. § 3244. Rate of taxes. — Special taxes are imposed as follows : First. Brewers shall pay one hundred dollars. Every per- son who manufactures fermented hquors of any name or 23 182 Excise and Hotel Laws U. S. Statutes; Provisions Applicable to Special Taxes. description for sale, from malt, wholly or in part, or from any substitute therefor, shall be deemed a brewer : Provided, That any person who manufactures less than five hundred barrels a year shall pay the sum of fifty dollars. Second. Manufacturers of stills shall each pay fifty dollars, and twenty dollars for each still or worm for distilling made by him. Any person who manufactures any still or worm to be used in distilling shall be deemed a manufacturer of stills. Third. Rectifiers of distilled spirits shall pay two hundred dollars. Every person who rectifies, purities, or refines dis- tilled spirits or wines by any process other than by original and continuous distillation from mash, wort, or wash, through continuous closed vessels and pipes, until the manufacture thereof is complete, and every wholesale or retail liquor-dealer who has in his possession any still or leach-tub, or who keeps any other apparatus for the purpose of refining in any manner ' distilled spirits, and every person who, without rectifying, purifying, or refining distilled spirits, shall, by mixing such spirits, wine, or other liquor with any materials, manufacture any spurious, imitation, or compound liquors for sale, under the name of whisky, brandy, gin, rum, wine, spirits, cordials, or wine bitters, or any other name, shall be regarded as a rec- tifier, and as being engaged in the business of rectifying : Provided, That nothing in this section shall be held to pro- hibit the purifying or refining of spirits in the course of orig- inal and continuous distillation through any material which will not remain incorporated with such spirits when the man- ufacture thereof is complete : And provided further. That no officer shall collect any special tax for rectifying distilled spirits on any premises distant less than six hundred feet in a direct line from any distillery. And any ofiicer who collects any special tax in violation of this (section) (proviso) shall be liable to a penalty of five thousand dollars for each offense. [The tollowing is § 18 of "An act to amend existing customs and revenue laws and for other purposes," approved Feb. 8, 1875, and is in effect amendatory of section 3344.] " § 18. That retail dealers in liquors shall pay $25. Every person who sells, or offers for sale, foreign or domestic dis- OF THE State of New York. 183 U. S. Statutes; Provisions Applicable to Special Taxes. tilled spirits, wines, or malt liquors, otherwise than as herein- before provided, in less quantities than five wine-gallons at the same time, shall be regarded as a retail dealer in liquors. Wholesale liquor-dealers shall each pay $100. Every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or malt liquors, otherwise than as hereinbefore pro- vided, in quantities of not less than five wine-gaUons at the same time, shall be regarded as a wholesale liquor-dealer. But no distiller who has given the required bond and who sells only distilled spirits of his own production at the place of manufacture in the original packages to which the tax-stamps are affixed, shall be required to pay the special tax of a whole- sale liquor-dealer on account of such sales. Retail dealers in malt liquors shall pay $20. Every person who sells, or offers for sale, malt liquors in less quantities than five gallons at one time, but who does not deal in spirituous liquors, shall be regarded as a retail dealer in malt liquors. Wholesale dealers in malt liquors shall pay $50. Every person who sells, or offers for sale, malt liquors in quantities of not less than five gallons at one time, but who does not deal in spirituous liquors at wholesale, shall be regarded as a wholesale dealer in malt liquors : Provided, That no brewer shall be required to pay a special tax as a dealer by reason of selling in the original stamped packages whether at the place of manufacture or else- where, malt liquors manufactured by him, or purchased and produced by him in his own casks or vessels, under the pro- ' visions of Eev. Stats. § 3349 ; but the quantity of malt liquors so purchased shall be included in calculating the liabihty to brewer's special tax of both the brewer who manufactures and sells the same and the brewer who purchases the same : And it is hereby provided. That no further collection of special tax as retail dealers in malt liquors shall be made from brewers for selling malt Hquors of their own manufacture in the origi- nal stamped eighth-barrel package : Provided further, that any assessments of additional special tax against wholesale liquor-dealers or retail liquor-dealers, or against brewers for selling malt liquors of their own production at the place of 184 Excise and Hotel Laws Instructions to Special Taxpayers. manufacture in the original casks or packages, made by reason of an amendment to § 59 of the Internal Revenue Act approved July 20, 1868, as amended by § 13 of the act approved June 6, 1872, further amending said § 59 by strik- ing out the words ' malt liquor,' ' malt liquors,' ' brewer,' and 'malt liquors' in th& three several paragraphs in which they occur, shall be on proper proofs remitted ; and if such assess- ments have been paid, the amounts so paid shall be, on proper proofs, refunded by the commissioner of internal revenue." SECTION 2 — INSTRUCTIONS TO SPECIAL TAXPAYERS. [The following are instructions issued by the United States government relating to payment of taxes by special taxpayers.] I. The special-tax year begins on the first day of July and ends on the 30ih day of June succeeding. II. Every person or firm liable to special tax upon com- mencing business, and again at the beginning of each special- tax year, must file with the collector or deputy collector a sworn return on this form, and pay to the collector of internal revenue the amount of the tax, when he will be furnished with a special-tax stamp, which must be at all times conspicu- ously displayed in his or their place of business, and any per- son who shall, through negligence, fail to so place and keep said stamp, shall be liable to a penalty equal to the special tax for which his business renders him liable, and the costs of prosecution. For failure to make the return as above stated, the commissioner of internal revenue is required by law to assess a penalty of fiftij per centum of the amount of the tax. The failure to procure a special-tax stamp also renders the delinquent liable to criminal prosecution. III. Applicants for a special-tax stamp for a fractional part of a year must calculate from the first day of the month in wliich they commence business to the end of the special-tax year. OF THE State of New Yoek. 185 Instructions to Special Taxpayers. lY. The following are the special taxes now imposed by law, viz. : Eectifiers of less than 500 barrels $100 00 Rectifiers of 500 barrels or more 200 00 Dealers, retail liquor 25 00 Dealers, wholesale liquor 100 00 Dealers in malt liquors, wholesale 50 00 Dealers in malt liquors, retail 20 00 Hetail dealers in oleomargarine 48 00 Wholesale dealers in oleomargarine 480 00 Manufacturers of oleomargarine 600 00 Manufacturers of stills 50 00 and for each still manufactured 20 00 and for each worm manufactured 20 00 Brewers of less than 500 barrels 50 00 Brewers of 500 barrels or more 100 00 Y. Eetail dealers in malt liquors cannot retail spirituous liquors or wines without paying special tax as retail liquor dealers. YI. Retail liquor dealers must not sell five gallons or more to one person at any one time. Any person desiring to sell in quantities of five or more gallons must make this return and pay the special tax as a wholesale liquor dealer. The word " gallon " here used means " wine gallon." YII. Rectifiers or brewers who have paid special tax as ■" rectifiers or brewers of less than 500 barrels," and who dur- ing the same special-tax year desire to increase their product, should make application hereon for a new stamp of the denomination of $200 in the case of a rectifier, or $100 in the case of a brewer. On obtaining this new stamp the rec- tifier or brewer may apply to the commissioner of internal revenue, under section 3426, Revised Statutes, for the repay- ment to him of the value of the stamp first issued, less five per cent deduction therefrom. YIII. Manufacturers and wholesale dealers may sell oleo- margarine only in original stamped packages of not less than ten pounds. A retail dealer must sell only from original 186 Excise and Hotel Laws Regulations Concerning the Tax on Distilled Spirits. stamped packages in quantities of not more than ten pounds, packed in new wooden or paper packages marked with his name and address, and the word " Oleomargarine " in large letters printed or branded thereon. (See section 6, Act of Aug. 2, 1886.) IX. Special-tax stamps are not transferable from one dealer to another. "When a new member is added to a firm paying special tax, a new stamp will be required. When two per- sons, each holding a stamp for business carried on by himself, form a partnership, the firm (a separate person, in law, from either of them) must pay special tax. Stamps for separate persons cannot be joined together to 'answer for a partnership. X. Special-tax stamps will be transmitted by mail, unless taxpayer directs otherwise. If it is desired that they be. transmitted by registered, mail, ten cents additional should accompany the application. 1^^ Postage stamps and uncertified checks will not be received in payment of special taxes. When you return this form to the collector, send the money with it. SECTION 3 — REGULATIONS CONCERNING THE TAX ON DISTILLED SPIRITS APPLICABLE TO WHOLESALE AND RETAIL LiaUOR DEALERS. [The following regulations are extracted from the regulations and instructions con- cerning the tax on distilled spirits, issued by the United States internal revenua department, being series 7, No. 7, revised February 19, 1895. A copy of these regula- tions may be had on application to any United States internal revenue collector.] Retail liquor dealers. — Ketail liquor dealers are only authorized to sell in quantities less than 5 gallons, and no reinspection or stamping of the package of spirits so sold by them is required. The spirits which they purchase in packages of 5 or more wine gallons must be properly stamped, marked, or branded, and remain in the original casks or packages until drawn off for sale in retail packages. OF THE State of New Yoek. 18T Regulations Concerning the 1 ax on Distilled Spirits. There bein^ no provision for stamping spirits on the prem- ises of retail liquor dealers, they are not permitted to reduce the proof ol spirits by the addition of water or otherwise. The restoring of spirits to their original proof, as provided herein, must be performed on the premises of a wholesale liquor dealer. A change of package of spirits to prevent leakage, or for other cause, can be made by a retail liquor dealer in such manner as to protect the spirits from detention or leakage only by transferring the same to vessels containing less than 5 wine gallons each. A retail liquor dealer can not legally sell several packages of the same kind of spirits at the same time, each containing less than 5 wine gallons, but which contain in the aggregate more than 5 gallons. Wholesale liquor dealers' stamps. — Any person who sells or offers for sale spirits in qiiantities of 5 wine gallons and upward is a wholesale liquor dealer ; and every cask or package of 5 gallons or more filled for shipment, sale, or delivery, on the premises of any wholesale liquor dealer, must have affixed thereto the wholesale liquor dealers' stamp, and be marked as hereinafter provided. Where a wholesale liquor dealer purchases packages of spirits properly marked, stamped, and branded, and sells them in the same condition, no other stamp or mark is required. A neglect or failure to comply with the requirements of sections 3320 and 3323, Revised Statutes, as amended, so far as the latter relates to wholesale liquor dealers' packages^ renders the package of spirits liable to forfeiture. Change of package by wholesale liquor dealers. — Section 3323, Eevised Statutes, as amended by the act of July 16, 1892, provides that — Every package of distilled spirits containing five wine gallons or more, filled on the premises of a wholesale liquor dealer, who has paid the special tax required by law, shall be marked, branded, and stamped by such wholesale liquor dealer 188 Excise and Hotel Laws Regulations Concerning the Tax on Distilled Spirits. in such manner and under such rules and regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. Monthly return by wholesale liquor dealers. — Section 3323, Revised Statutes, as amended by the act approved July 16, 1892, provides that — Every package of distilled spirits containing five wine gal- lons or more, filled on the premises of a wholesale liquor dealer who has paid the special tax required by law, shall be marked, branded, and stamped by such wholesale liquor dealer in such manner and under such rules and regulatians as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe ; and on or before the tenth day of each month every wholesale liquor dealer shall make return, under oath, to the collector of internal revenue for the district of the various kinds and quantities of each kind and of the total quantities of distilled spirits received on his premises and of the various kinds and quanti- ties of each kind and of the total quantity of distilled spirits sent out from his stock or possession during the preceding month, and of the quantity of each kind and the total quan- tity remaining on hand at the end of the month ; and such return shall be made in such form and contain such other particulars as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. And every rectifier or wholesale Hquor dealer who refuses or willfully neglects to comply with the requirements of this act as to giving the said notice or the said return, and as to mark- ing, branding, and stamping, in accordance with the law and the regulations made in pursuance thereof, the packages of spirits filled on his premises as aforesaid, shall, for each such offense, be fined not less than two hundred dollars nor more than one thousand dollars. Pursuant to the above provisions every wholesale liquor dealer shall, on or before the 10th day of each month, make return, under oath, on Form 338, which has been provided and is hereby prescribed for that purpose, to the collector of OF THE State op New Yobk. 189 Regulations Concerning the Tax on Distilled Spirits. the district of the exact quantity, in proof gallons, of each kind of distilled spirits and the total quantity of all kinds of distilled spirits on hand at the beginning of and received on his premises during the preceding month ; and in like manner the exact quantity of each kind and the total quantity of all kinds sent out from his stock or possession daring such month ; and the quantity of each kind and the total quantity of distilled spirits of all kinds remaining on hand at the end of the month. Where spirits contain saccharine matter or other material to such an extent that the hydrometer will not correctly indicate the proof, the wine gallons thereof will be considered as proof gallons and so returned. The proof gallons of unsweetened spirits will be entered in all cases. To secure entire accuracy in this account, and in order that the balance may correctly represent the quantities on hand, it is required that at the close of the months of June and December in each year a full, true, and exact inventory shall be made by every wholesale liquor dealer of each kind of spirits and of all distilled spirits tlien on the premises, without regard to the date when such spirits were received. These returns, when received by the collector, shall be care- fully filed in his office for reference, especially in connection with the monthly transcripts rendered from the wholesale liquor dealer's book. In case of a wholesale liquor dealer who is also a rectifier his return on Form 338 must include all spirits received and disposed of by him, whether the same are rectified by him or not. The quantity " Keceived during month " will include all spirits that came on to the premises and also all spirits " Eeceived from rectification " (as entered on Form 52) under the various headings as to kinds of spirits. The quantity " Sent out of stock during the month " will include all spirits disposed of by sale and also all " Spirits 190 Excise and Hotel Laws Regulations Concerning the Tax on Distilled Spirits. emptied for rectification from stock received " under the vari- ous headings. The entries " On hand " at beginning and end of month will not include spirits then in course of rectification, and which have been duly entered on Form 52 as " Emptied for rectification from stock received." Whenever the dealer has imported spirits in custom bonded warehouse, the exact quantity of which is unknown to him, and consequently not entered on Form 52, it is not expected that the spirits will be taken up on Form 338 until the dealer is informed as to the actual quantity of the same. [The forms referred to are those of the internal revenue department, «nd may be had on application to any internal revenue collector.] OHAPTEE YII. RIGHTS, DUTIES AND LIABILITIES OF INN- KEEPERS. Section 1. Common-law duties and liabilities. 2. Statutory limitations of liabilities. 3. Liens of inn-keepers and boarding Louse keepers. 4. Fire escapes in hotels. 5. Discriminations on account of race, creed or color. 6. Reports to public administrator of deaths occurring in New York city hotels and boarding houses. 7. Penal provisions relating to inn-keepers. SECTION 1— COMMON-LAW DUTIES AND LIABILITIES. Who may keep an inn. — Any person may keep an inn, tavern, or hotel under the common law and by the law of this state, and may put up a sign indicating his business ; he only requires a license to authorize the sale of liquors, and if this sign does not indicate that he keeps a licensed tavern, he is not thereby subjected to the penalty therefor. Overseers of Crown Point v. Warner, 3 Hill, 150 ; People v. Mv/r- phy, 5 Park. Cr. Kep. 130. Who are reponsible as inn-keeper. — Any person who receives as guests, all who choose to visit his house, without previous agreement as to the duration of their stay, or the terms of their entertainment, are inn-keepers, and can be made responsible as such. Wvrvtermute v. ClwrTce, 5Sandf. 242; Taylor v. Mirvnot, 4 Duer, 116. The distinction between a boarding house and an inn, is that in a boarding house the guest is under an expressed contract, at a certain rate, for a certain period of time ; but in an inn there is no expressed engagement ; the guest, being on his way, is entertained from day to day, according to his business, upon an implied contract. Willar^ v. Bhinehardt, 2 E. D. Smith, 148. The keeper of a restaurant is not subject to the liability of inn-keepers. Carpenter v. Taylor, 1 Hilt. 193. "Where the plaintiff's property. was stolen while he was din- ing at the defendant's restaurant, and it appeared in evidence that liquors were sold therein, it was held in an action for the 192 Excise and Hotel Laws Common-law Duties and Liabilities of Inn-keepers. value of the property that the court would take judicial notice that liquors could only be sold under a license, and that licenses could only issue to inn-keepers, and in absence of evi- dence to the contrary would presume that the defendants were inn-keepers. Korn v. Schedler, 11 Daly, 234. Defendant's main business was the keeping of a restaurant, but he had a part of a floor in the same building devoted to lodgers, and to obtain a liquor license had made an affi- davit that he kept an inn under the excise law. In an action to recover tlie value of plaintiff's overcoat which he had hung on a hook in the restaurant and was stolen, it was held that since the defendant had established by his own act and declara- tion that he kept an inn, that he was liable for the loss sus- tained by the plaintiff, and that the plaintiff was a guest, although he did not register his name and went to the restaurant for the sole purpose of dining. Kopper v. Wil- 11% 9 Daly, 460. A person who rents rooms in one part of his building to lodgers, and in another part of the building a restaurant is kept by another person as an independent establishment, from which access may be had to the lodging rooms, is not an inn- keeper, and, therefore, has no lien as such upon the property of his lodgers. Cochrane v. Schryver, 12 Daly, 174. The proprietor of a hotel conducted on the European plan may be liable as an inn-keeper. Bernstein v. Sweeney, 33 N. Y. Super. Ct. (J. & S.) 271. Liability of inn-keepers. — An inn-keeper is bound to take in and to receive all travelers and wayfaring persons, and to entertain them for a reasonable compensation if he can accom- modate them. Orinnell v. Cook, 3 Hill, 485. And if an inn-keeper improperly refuses to receive or to provide for a guest he is liable ; but he may not only refuse to receive a guest who conducts himself in a disorderly and noisy manner, but he may compel him under such circumstances to leave the inn, even after he has been received as a guest. 4 Wait's Act. & Def. 4. The liability of an inn-keeper is the same in character and OF THE State of New York. lOS' Common-law Duties and Liabilities of Inn-keepers. extent as that of a common carrier. 2 Kent's Comm. 59i!. He is regarded as an insurer of property committed to his custody by a guest, but his liability is not unlimited and abso- lute, and loss of goods of a guest is merely presumptive evi- dence of a default of the landlord, but this presumption can only be repelled, at common law, by proof that the loss is attributable to negligence or fraud of the guest or the act of God or the public enemy. No degree of vigilance or dili- gence on the part of the inn-keeper can absolve him from his common-law obligation for the loss of his guest unless trace- able to one of these exceptionable causes. The rule is salu- tary and should be steadily and hrmly upheld, subject to the statutory regulations for protection of hotel proprietors from fraud and negligence on the part of their guests. Hence an inn-keeper is liable for loss of goods of a guest by fire, the cause of which is unknown. JIulett v. Swift, 33 N. Y. 571. This liability is not liihited to property of any particular kind or value ; it embraces all the personal property of the guest brought to the inn. Kellogg v. Sweeney, 46 N. Y. 291. The duties of an inn-keeper as such are due only to his guests. To constitute one a guest, it is not necessary that he^ be at the inn in person ; the liabihty is incurred if his property is there in charge of his wife, or servant, or agent who is there in his employment or as a member of his family ; but it must be there in such a way that the law implies the property, while there, to be in the owner's possession and not in posses- sion of the person who is there with it, as his bailee. Coy- hendall v. Eaton, 37 How. Pr. 438. Who are guests. — It is sometimes difl&cult to define what, constitutes the relationship of inn-keeper and guest. And courts have held that it makes no difference how long a man remains at an inn ; whether his stay be for days, weeks, or months, so long as he retains his character as a traveler, he is a guest. Smith v. Keyes, 2 T. & C. 650. An inn-keeper is not to be regarded as owing a duty of care to persons who take refuge in a crowd upon his piazza in a storm, in such sense as to be liable to them for the giving way 39i Excise and Hotel Laws Common-law Duties and Liabilities of Inn-keepers. of the piazza without his fault. Converse v. ^Yallcer, 30 Hun, 596. Officers of the army and navy, and soldiers and sailors, who have no permanent residence which they can call home, may be regarded as travelers or wayfarers when stopping at pub- lic inns or hotels, and to make them chargeable as mere boarders it should be shown satisfactorily that an explicit con- tract had been made which deprived them of the privileges and rights which their vocation conferred upon them as pas- sengers and travelers. Merely fixing the price to be paid does not make the person a boarder rather than a guest. It is a question whether fixing in advance the price to be paid and the length of the stay has the effect in law to constitute such person a mere boarder or lodger and to deprive the visitor of the character of a guest. Hancock v. Rand, 94 N. Y. 1. If a person puts up his horse at an inn it makes him a guest, and the relation extends to all his goods left at the inn by his taking a room, and by his taking some of his meals at the inn and by lodging there a portion of the time. A peddler by simply leaving his goods at an inn, cannot thereby invest himself with the character of a guest so as to impose upon the inn-keeper a liability for their loss. Tovh v. Schmidt, 60 Hun, 409. Where a person, at the request of an inn-keeper, went to the hotel to engage in a dance in the ball room, and paid a charge for admission and the care of his horse, it was held tliat this did not create the relation of inn-keeper and guest, so as to render the former liable for injuries to the horse. Fitch V. Casler, IT Hun, 126. Nor does a person by merely taking dinner at the hotel, without notice to the proprietor or clerk, become a guest in such a way as to make the inn-keeper liable for loss incurred while taking such dinner. Gosten- Jwfer V. Glair, 13 Wkly. Dig. 502. Liability for loss of property.— Where a sleigh loaded with wheat was put by the guest into a closed barn appurte- nant to the inn, where loads of that kind were usually received, OF THE State of New Yoek. 195 Common-law Duties and Liabilities of Inn-keepers. but without specially committing it to the inn-keeper, and the grain was stolen during the night, the inn-keeper was made responsible for tlie loss. Clute v. Wiggins, 14 Johns. 175. If the guest leave his wagon and goods in an inclosed shed near the inn, being the place designated by the servant of the inn-keeper, the latter is responsible for their safety. The inn- keeper is liable if the goods are placed in his custody. Piper V. Manny, 21 Wend. 282. If the guest go out for a while, intending to return, the inn- keeper is liable for damage to his goods which may occur in his absence. McDonald v. Edgerton, 5 Barb. 560. The lia- bility of an inn-keeper is not hmited to the mere baggage of his guest. Where he adopted the practice of receiving by his clerk the parcels sent for his guests, it was held that he received them as inn-keeper and was liable accordingly. Needles v. Howard, 1 E. D. Smith, 54. A guest may recover from an inn-keeper for the property of a third person which the former held as a gratuitous bailee and brought with him to the inn. Kellogg v. Sweeney, 1 Lans. 397. An inn-keeper is not responsible for the loss of goods of a guest if the latter exposed the same to peril by his own gross negligence. Fowler v. Dorlon, 24 Barb. 384. The responsibility of an inn-keeper as such ceases when the guest pays his bill and leaves the house with the intention of not returning. If the latter leaves his baggage behind hiiji the inn-keeper is not responsible for its safe-keeping, unless specifically committed to his custody, and then only as an ordinary bailee. Wintermute v. Clarke, 5 Sandf. 242. The inn-keeper was held liable for an injury sustained by the plaintiff's horse after plaintiff had paid his bill and his servant had commenced harnessing the team to leave, on the ground that the relation of inn-keeper and guest had not yet terminated. Seymour v. Cook, 53 Barb. 451. And where valuables have been redelivered to the guest to be packed prior to his departure, and are lost thereafter without the fadt of the guest, the proprietor is liable. Bendetson v. French, 46 N. Y. 266. 196 Excise and Hotel Laws Common-law Duties and Liabilities of Inn -keepers. An inn-keeper's clerk has no authority to bind an inn- keeper to liability for property delivered to him beyond the time that the owner remains at the inn, nor to receive the property of persons not brought by guests for safe-keeping ; nor to agree to keep the property until the guest can send for it. Ooyhendall v. Eaton, 40 How. Pr. 266. "When an inn-keeper receives property from one who is neither a guest nor a traveler, the custom of the realm imposes no obligation. The property is subject to no lien asid protected by no insurance ; his obligation is simply that of an ordinary bailee for hire. Thus where a traveler left his horse at an inn, but lodged elsewhere, and during the night a fire occur- red by which the horse was destroyed without any fault of the inn-keeper, it was held that the latter was not responsible. Eingallsbe v. Wood, 23 N. T. 677. In an action against an inn-keeper to recover the value of property lost by a guest, proof of the loss or larceny of the goods from the room in which he lodged is suflicient proof of carelessness on the part of the defendant. QiU v. Lilly, 36 Barb. 70 ; Glute v. Wiggins, 14 Johns. 175. A mere giving to and acceptance by the guest of the key of his chamber does not impose on him any duty or obligation to keep the door thereof locked. If, under such circum- stances, the guest, on retiring for the night, omits to lock the door of his room and permits it to remain unlocked during the night, such omission and permission does not constitute such negligence as to relieve the inn-keeper from liability for a theft of the guest's goods from his room during the night. Classen V. Leopold, 2 Sweeney, 705. Under the common law the act of leaving a large amount of gold coin in the guest's trunk, in a room without any per- son therein, in a hotel in the city of New York, after a per- sonal notice to the guest that a place is provided by the inn- keeper for the safe deposit of money, jewels, etc., is such neg- ligence on the part of the guest as will discharge the inn-keeper from any liability. Purois v. Coleman, 21 N. Y. 111. OF THE State of New Yoek. 197 Common-law Duties and Liabilities of Inn-keepers. An innkeeper's liability for the baggage of his guest is not terminated the instant the guest pays his bill and leaves the hotel, but continues for such a reasonable time thereafter as may be necessary for him to secure its removal; or if the innkeeper in the ordinary course of his business undertakes its removal to a railroad, or to some other common carrier, until he has made performance. In this case the plaintifi left the hotel to go on board a yacht for a cruise, and it was his desire to have his trunk sent home by express. He made an arrangement with the clerk of the defendant, in charge of the defendant's office, to deliver his trunk to an expressman. It was never so delivered. It was not pretended that this undertaking on the part of the defendant's clerk was outside of the ordi- nary routine of the work undertaken by the defendant to promote the pleasure, comfort and convenience of his guests, and to assure their further patronage. Nor was it pretended that innkeepers generally are not accustomed to perform work of like character for their guests, and for a like purpose. (Maxwell v. Gerard, 84 Hun, 537.) The fact that the guest at a hotel had previously admitted to his room a certain person does not justify such person's admission by the hotel employes in the guest's absence, and the proprietor is not exonerated thereby from liability for articles taken by such person under such cir- cumstances. (Jacobi V. Haynes, 14 Misc. 15; S. C, 69 N. Y. St. Rep. 49; 35 N. Y. Supp. 120.) A guest going to a hotel should use reasonable care and caution to pro- tect his property and himself from the prowling night thieves that infest hotels and cities. If it appears that the plaintiff's room was on the ground floor, with a window opening on a public street, the bottom of the window being about three feet above the street and that he retired leaving the gas burning brightly, the window unfastened and his vest and trousers placed in a conspicuous place, the plaintiff is guilty of con- tributory negligence and he can not recover. (Beeker v. Warner, 90 Hun, 187.) 198 Excise and Hotel Laws Statutory Limitations of Liabilities of Inn-keepers. SECTION 2 — STATUTORY LIMITATIONS OF LIABILITIES. Laws 1855, chap. 421 — An act to regulate the liability of hotel-keepers. Section 1. Safe for valuables. — "Whenever the proprietor or proprietors of any hotel or inn shall provide a safe in the office of such hotel, or other convenient place, for the safe- keeping of any money, jewels or ornaments belonging to the guests of such hotel or inn, and shall notify the guest thereof by posting a notice (stating the fact that such safe is provided, in which such money, jewels, or ornaments may be deposited) in a public and conspicuous place and manner in the office and public room, and in the public parlors of such hotel ; and, if such guest shall neglect to deliver such money, jewels or orna- ments to the person in charge of such office for deposit in such safe, the proprietor or proprietors of such hotel shall not be liable for any loss of such money, jewels or ornaments sus- tained by such guest by theft or otherwise ; but no hotel pro- prietor or lessee shall be obliged to receive property on deposit for safe-keeping exceeding five hundred dollars in value ; and if such guest shall deliver such money, jewels or ornaments to the person in charge of such office, for deposit in such safe, said proprietor or proprietors, shall not be liable for any loss thereof, sustained by such guest, by theft or otherwise, in any sum exceeding the sum of two hundred and fifty dollars, unless by special agreement in writing by proprietor or man- ager. [Thvs amended ly Laws 1892. chap. 284, talcing effect April 11, 1S92.] [This act operates as a limitation of the innkeeper's common-law liability for loss of the property of guests while stopping at his hotel. It only refers to such articles of the guest as are mentioned in the act; as to all other species of property the liability is unchanged. The innkeeper, to be entitled to the benefits of the act, must conform in all respects to the requirements thereof. The amendment of 1893 prescribes a limit to the value of the articles for the loss of which the innkeeper may become liable. What constitutes neglect to deposit. — When the guest oflEers to the bookkeeper a large package of valuables, without stating its contents, and OF THE State of New Tokk. 190 Statutory Limitations of Liabilities of Inn-keepers. requests him to deposit it in tlie safe, and the clerk responds that the: package will be safe in his own room, whereupon the guest takes it to hia room, it is on the part of the guest a neglect to deposit within the statute. But if the package was stolen after the guest had packed his trunk for his departure, and had ordered the trunk to be brought down from his room, then the innkeeper would be liable, even if the package had never been handed to him or his agents to be deposited in the safe. Bendetson V. French, 46 N= Y. 266. But in the interpretation of a statute of the state of New Jersey similar to this in all respects, it was held that th& innkeeper who comphes with the provisions of the act on his part is not liable for the loss of any money, jewels or ornaments not deposited in th& safe. Hyatt v. Taylor, 43 N. Y. 358. This statutory exemption of the innkeeper's Uability appUes to all money, jewels and ornaments and applies to every case where the guest has the time and opportunity to make the deposit; his omission to do so- ls a neglect within the meaning of the statute although no carelessness or imprudence is shown. Bosenplaenter v. BoesaU. 54 N. Y. 362. Jewels and omameuts. — The exemption is limited to the particular species of property named, and the act being in derogation of the com- mon law, cannot be extended in its application by doubtful construction, and, therefore, the watch of a guest at an inn, worn and used by Mm in the ordinary manner, is neither a "jewel or ornament " within the meaning of the act, and the innkeeper is liable for the loss thereof in the room of the guest, notwithstanding his compliance with the act. Bamaley v. Ldand, 43 N. Y. 539. Where the room of a guest was broken open and various articles of jewelry worn by the plaintiff in ordinary dress, of the value in all of lesa than $350 were stolen, and the loss was without carelessness or negUgence on the part of the guest, it was held that the statutory exemption applied to the articles stolen, and the innkeeper was not liable therefor. Bosen- plaenter V. BoessU, 54 N. Y. 262. Notice to guests. — While the statute prescribes in terms that the notice shall be printed and posted as therein provided, it is a sufBcient compliance with the requirement if an actual personal notice is given the guest. An actual notice to the guest that the innkeeper has provided a safe for the deposit of valuables is in its nature more effective than any printed notice posted as required by the statute could be, and, therefore, without regard to the terms of this act, the innkeeper would be absolved from all liability for loss occasioned by the guest's neglect to heed the notice. Purvis V. Coleman, 31 N. Y. 111. The common-law rule which fixes the liability of an innkeeper to his guest is a statutory one and imposes no needless hardship upon him, and it should be administered without regard to technical distinctions. This statute was enacted for the benefit of the innkeeper, and if compUed with 200 Excise and Hotel Laws Statutory Limitations of Liabilities of Inn-keepers. furnishes full and ample relief from the liability incurred under the com- mon law. If the innkeeper fail or neglect to conform to its provisions, he has no ground to complain when made amenable for such failure. It is to be presumed that every innkeeper sufficiently guards the hotel under lis charge so as to protect its inmates from the depredations of criminals. "When they fail to do this and carelessly omit to notify the inmates where their valuables can be fully protected, no reason exists in the law or in jus- tice why they should not respond for losses attributable to their own remissness. Hancock v. Sand, 94 N. Y. 1.] § 2. Liability for loss of clothing limited. — No hotel- keeper shall be liable to any guest for the loss of wearing apparel, goods or merchandise for any sum exceeding the sum of five hundred dollars, whei-e it shall appear that such loss occurred without the fault or negligence of such hotel-keeper ; nor shall he be liable in any sum for the loss of any article or articles of wearing apparel, cane, umbrella, satchel, valise, box, bag, bundle or other chattel belonging to such guest, and not within a room assigned to him, unless the same shall be specially intrusted to tlie care and custody of such hotel- keeper or his servants. {Thus amended hy Laws 1883, chap. 227.] Laws i866, chap. 658 — An act to limit the liability of innkeepers. Section 1. Loss by fire. — No innkeeper shall be liable for the loss or destruction by fire of property received by him from a guest, stored or being with the knowledge of such a guest in a barn or other out-building, where it sliall appear that such loss or destruction was the work of an incendiary, and occurred without the fault or negligence of such innkeeper. § 2. Value of animals. — No animal belonging to a guest and destroyed by fire while on the premises of any innkeeper, shall be deemed of greater value than three hundred dollars, unless an agreement shall be proved between such guest and innkeeper that a higher estimate shall be made of the same. [This act limits the common-law liability of innkeepers for losses to guests occasioned by incendiary ares. Under the common law innkeepers were liable as insurers. See section 1 of this chapter, ante. OF THE State of 'Nww Yoek. 201 Liens of Innkeepers and Boarding-house Keepers. Tlie burden is upon the innkeeper claiming the benefit of this statute to show that the fire occasioning the loss of the goods of the guest was an incendiary one, and the absence of negligence on his part connected with the transaction. He is exempted from liability when it "shall appear" that the circumstances exist, which under the statute exonerate him from liability. Fa/wcett v. Nichols, 64 N. Y. 377.] SECTION 8 — MENS OF INNKEEPERS AND BOARDING- HOUSE KEEPERS. Laws 1879, chap. 530 — An act for the better protection of hotel-keepers, innkeepers, lodging-house keepers and boarding-house keepers. Section 1. Sale of goods and baggage of guest to sat- isfy lien. — Any hotel-keeper, innkeeper, boarding-house or lodging-house keeper, who shall have a lien for fare, accommoT -dation, or board, upon any goods, baggage, or other chattel prop- erty and in his possession for a period of three months at least after the departure of the guest or boarder leaving the same, ■or vsrho for a period of six months shall have in custody any -unclaimed trunk, box, valise, package, parcel, or other chattel property whatever, may proceed to sell the same at public auction ; and out of the proceeds of such sale may, in case of lien, retain the amount thereof and the expense of advertise- ment and sale; and, in case of unclaimed property, the •expense of storage, advertisement, and sale thereof ; provided, in all instances, the notice specified in the next section be first given as therein directed. § 2. Notice of sale ; hour of sale. — Fifteen days at least prior to the time of the sale, a notice of the time and place of holding the sale, and containing a brief description of the goods, baggage, and articles to be sold, shall be published in a newspaper of general circulation, published in the city or town in which sucb hotel, inn, or boarding-house is situated ; but if there be none, then in such newspaper published nearest .said city or town ; and shall also be served upon said guest, hoarder or owner of such chattel articles and property, if he 202 Excise and Hotel Laws Liens of Innkeepers and Boarding-house Keepers. reside or can be found within tlie county where said hotel, inn, boarding-house, or lodging-house is situated, by delivering- the same to him personally, or leaving it at his place of resi- dence with a person of suitable age in charge thereof. But if such guest, boarder, or owner does not reside or cannot be found in said county, then said notice shall be deposited in the post-office of said city or town, with the postage prepaid thereon, fifteen days prior to said sale, and addressed to said guest, boarder, or owner at his place of residence, if he left his address, or it be otherwise known to said hotel, inn, board- ing-house keeper, or lodging-house keeper. The sale shall take place between the hours of ten o'clock in the forenoon and four o'clock in the afternoon, and all articles sold shall be to the highest bidder for cash. §3. Refunding surplus. — Such hotel-keeper, inn-keeper, boarding-house keeper or lodging-house keeper shall make an entry of the articles sold, and the balance of the proceeds of the sale, if any, and within ten days from such sale shall, upon demand, refund such balance and surplus to such guest,^ boarder, or person leaving the articles sold. § 4. When surplus to be paid to county treasurer ; affidavit. — In case such balance shall not be demanded and paid as specified in the last section, within said ten days, then within five days thereafter said hotel-keeper, inn-keeper, boarding-house keeper, or lodging-house keeper shall pay said balance to the treasurer of the county, or chamberlain of said city, as the case may be, and shall at the same time file with said treasurer or chamberlain an affidavit made by him, in which shall be stated the name and place of residence, as far as they are known to him, of the guest, boarder, or person, whose goods, baggage, or chattel articles were sold, the articles sold, and the price at which they were sold, the name and residence of the auctioneer making the sale, and a copy of the- notice published, and how served, whether by personal serv- ice, or by mailing, and if not so served the reason thereof. § 5. Duty of county treasurer. — Said treasurer or cham- OF THE State oe New Yoek. 203 Fire Escapes in Hotels. berlain shall keep said surplus moneys for and credit the same to the persons named in said affidavit as said guest, boarder, or person leaving the articles sold, and shall pay the same to said person, his or her executors or administrators, upon demand, and evidence satisfactory to said treasurer or cham- berlain furnished of their identity. § 6. Remedy not exclusive. — Nothing herein contained shall preclude any other remedy now existing for the enforce- ment of hotel-keepers, inn-keepers, boarding-house keepers, or lodging-house keepers' lien, nor bar their right to recover for So much of the debt as shall not be paid through said sale. Laws i860, chap. 446 — An act for the protection of boarding-house keepers. Section 1. Liens of boarding-house keepers. — The keeper of a boarding-house shall have the same lien upon and right to detain the baggage and effects of any boarder to the same extent and in the same manner as innkeepers have such lien and right of detention ; but nothing herein shall be deemed to give to any boarding-house keeper any lien upon or right to detain any property the title to which shall not be in such boarder. \_Thus amended hy Loms 1876, cha(p. 319.] SECTION 4 — FIRE ESCAPES IN HOTELS. Laws 1887, chap. 720 — An act to provide fire escapes in hotels. Section 1. Hotel keepers required to provide fire escapes and to post notices. — Every owner, lessee, pro- prietor or manager of a hotel situated in the state of New York, exceeding two stories in height, shall on or before the first day of July, eighteen hundred and eighty-seven, place or cause to be placed a rope or other better appliance to be used as a fire 204 Excise and Hotel Laws Fire Escapes in Hotels. escape in every room of said liotel used as a lodging room except the rooms on the ground floor, which rope or other bet- ter appliance shall be securely fastened at one end of it to a suitable iron hook or eye to be securely driven or secured into one of the joists or timbers next adjoining the frame of the window or one of the widows of said room, which rope shall be at all times kept coiled up and exposed to the plain view of any occupant of said room, the coil to be fastened in such slight manner as to be easily and quickly loosened and uncoiled, and such rope shall not be less than three-fourths inch in diam. eter and of sufficient length to reach from such window to the ground. Such rope, iron hook or eye and the fastenings shall be of sufficient strength to sustain a weight of four hundred pounds. It shall, also, be the duty of every such owner, lessee, proprietor or manager to post or cause to be posted in a conspicuous place in each room and in each hall of such hotel, except the rooms and hall on the ground floor, a printed notice to the effect that a rope is so placed in every such room of said hotel, except the rooms on the ground floor, for use in case of Are, and giving full directions for sucli use. § 2. Duty of chief engineer ; penalty for obstructing him. — It shall be tlie duty of the chief engineer, or the officer performing the duties of a chief engineer of a fire department, of every city and village of tliis state in the months of July and January of each and every year to inspect or cause to be inspected by some person to be deputized by him for that purpose, every room of every hotel in the city or village in wliich he is performing the duties of such chief engineer and ascertain if the provisions of section one of this act are com- plied with. And any owner, lessee, proprietor, manager or other person, who shall obstruct or prevent such officer or person from making a free inspection of said rooms pro- vided for as aforesaid shall be liable to a penalty of fifty dol- lars for each and every offense to be recovered by a civil suit brought in the name of the people in any court of the state. It shall be the duty of every such person making such inspec- tion on or before the fifteenth days of August and February OF THE State of New Yoek. 205 Discrimination on Account of Race, Creed or Color. of each and every year, to make and file a written report with tlie mayor, president or other officer performing the duties of the chief executive of such city or village, showing what hotels he has so inspected, and specifying which of them have fully complied with the provisions of this act, and which, if any, have not, and in what respects, and to what extent. Such mayor, president or other chief executive officer shall there- upon and within ten days after such report is so rendered to him, shall make and present to any court or magistrate having jurisdiction of crimes of the grade of a misdemeanor and pro- cure a warrant for the arrest of every person so reported as violating the provisions of this act. § 3. Penalty for violation of this act. — Any officer or person violating any of the provisions of this act is guilty of a misdemeanor and is punishable by imprisonment in a peniten- tiary or county jail for not more than one year or by a fine of not more than one thousand dollars or by both. § 4. Application of act qualified. — This act shall not apply to fire-proof hotels. SECTION 5 — DISCRIMINATION ON ACCOUNT 01" RACE,. CREED OR COLOR. Laws i88l, chap. 400 — An act to prevent discrimina- tions against any person on account of his race, creed or color. Section 1. No discrimination allowed on account of race, creed, or color. — No person shall be denied the full and equal enjoyment of the accommodations, advantages, facilities and privileges of all hotels, inns, taverns, restaurants, public conveyances on land or water, theaters and other placco of public resort or amusement, because of race, creed or color. [See Penal Code, § 383, which provides for the punishment of persons, violating the provisions of this act.] 206 Excise and Hotel Laws Report to Public Administrator of Deaths in Hotels. Laws 1895, chap. 1042 — An act to protect all citizens in their civil and legal rights. [Became a law June 15, 1895.] Section 1. Equal rights to all citizens. — That all per- sons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating-houses, bath- houses, barber-shops, theaters, music halls, public conveyances on land and water, and all other places of public accommoda- tion or amusement, subject only to the conditions and limita- tions established by law and applicable alike to all citizens. § 2. Penalty for violation. — That any person who shall violate any of the provisions of the foregoing section by deny- ing to any citizens, except for reasons applicable alike to all citizens of every race, creed or color, and regardless of race, creed and color, tlie full enjoyment of any of the accommoda- tions, advantages, facilities or privileges in said section enu- merated, or by aiding or inciting such denial, shall for every such offense forfeit and pay a sum not less than one hundred dollars nor more than live hundred dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed ; and shall, also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dol- lars, or shall be imprisoned not less than thirty days, nor more than ninety days, or both such fine and imprisonment. SECTION 6 — REPORT TO PUBLIC ADMINISTRATOR OF DEATHS OCCURRING IN NEW YORK CITY HOTELS AND BOARDING HOUSES. [new YORK CONSOLIDATION ACT, LAWS 1882, CHAP. 410.] § 246. Deaths in hotels to be reported. — Every person jkeeping a hotel, or boarding or lodging house in this city OF THE State of New Yoek. 207 Provisions of Penal Code Relating to Innkeepers. ■shall report in writing to the public administrator the name of every person not a member of his family, who shall die in his or her house, within twelve hours after such death ; and every coroner within twelve hours after an inquest, shall report to the public administrator, the name, if known, of the deceased person. Every undertaker shall also report to the public administrator within twelve hours after burial by him, any deceased person having no next of kin known to him to be entitled to administer, the name and residence of such deceased person. "Whoever shall neglect to comply with this provision shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by imprisonment in the penitentiary for a period not exceeding six months nor less than one month, or by a iine of one hundred dollars, one moiety of which shall be given to the informer, and the other moiety be paid into the city treasury. § 247. Copy of section to be left at hotels. — The public administrator shall cause a copy of the last section to be left at every boarding and lodging house in this city, at least once in each year ; and he shall not be entitled to recover of any person the penalty given by the last section, without due proof of the service of a copy of that section, personally, on the defendant, previous to the neglect for which such suit may be brought, and within one year before the commence- ment of such suit. SECTION 7 — PROVISIONS OF PENAL CODE RELATING TO INNKEEPERS. § 381. Innkeepers and carriers refusing to receive guests and passengers. — A person, who, either on his own account or as agent or oificer of a corporation, carries on business as innkeeper, or as common carrier of passengers, and refuses, without just cause or excuse, to receive and enter- tain any guest, or to receive and carry any passenger, is guilty of a misdemeanor. 208 Excise ajstd Hotel Laws Provisions of Penal Code Relating to Innkeepers. § 382. Frauds on hotel-keepers. — A person who obtaiiu any lodging, food or accommodation at an inn, boarding- house or lodging-house, except an emigrant lodging-house, without paying therefor, with intent to defraud the pro- prietor or manager thereof, or who obtains credit at such an inn, boarding-house or lodging-house, by the use of any false pretense, or who, after obtaining credit or accommodation at such an inn, boarding-house or lodging-house, absconds and surreptitiously removes his baggage therefrom without pay- ing for his food, accommodation or lodging, is guilty of mis- demeanor. [^Thus amended hy Laws 1895, chap. 883, taking effect September- 1, 1895.] § 383. Protecting civil and public rights. — A person who 1. Excludes a citizen of this state, by reason of race, color or previous condition of servitude, from the equal enjoyment of any accommodation, facility or privilege furnished by inn- keepers or common carriers, or by owners, managers or les- sees of theatres or other places of amusement, or by teachers and officers of common schools and public institutions of learning, or by cemetery associations ; or 2. Denies or aids or incites another to deny to any other person because of race, creed or color, full enjoyment of any of the accommodations, advantages, facilities and privileges of any hotel, inn, tavern, restaurant, pubKc conveyance on land or water, theatre or other place of public resort or amuse- ment, is guilty of a misdemeanor, punishable by fine of not less than fifty dollars nor more than five hundred dollars. CHAPTER YIII. FORMS. No. I. Constitutional oath of office. {Liquor Tax Law, §§ 8, 9.) STATE OF NEW YORK, i County of j-ss.; I, A. B., of the city [village or town] of county of State of New York, having been appointed a , do hereby solemnly swear [or affirm] that I will support the Constitution of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of according to the best of my ability. Subscribed and sworn to before me, this day of , 189.. [Signature of notary.] STATE OF NEW YORK, i County of j**-' I, C. D., a notary in and for the county of do hereby certify that on the day of 189.., before me per- sonally appeared A. B., of the city [village or town] of , and subscribed the foregoing oath of office. O. D., No'ary Public, County of No. 2. Information for illegal traffic in prohibition town. (Liquor Tax Law, §§ 16, 34.) STATE OF NEW YORK, i County of j *'• ' A. B., being duly sworn, deposes and says, that he resides In the town of , in the county of ; that the electors of such town have determined, in pursuance of section 16 of the Liquor Tax Law, that traffic in liquor should not be permitted in such town, or a liquor tax certificate be granted therefor, under subdivision 1 of section 11 of such law [or as the case 27 210 Excise and Hotel Laws Forms. may be]; that on the .... day of 189.., in such town, one 0. D. did unlawfully and knowingly violate sections T.6 and 34 of the Liquor Tax Law by trafficking In liquors in such town as follows [state facts of sale]: A. B. Subscribed and sworn to before me, this day of , 189.. [Signature of notary.] No. 3. Consent of owner of premises. (Liquor Tax Law. §§ 17, 26, 27.) I, A. B., owner of the premises situated at No street, in the city of , hereby consent that such premises be used as a place in which the traffic in liquors may be carried on under the Liquor Tax Law. Dated 189.. A. B. STATE OF NtW YORK, ) County of , f*'--' On this day of , 189.., before me personally ap- peared A. B., to me known to be the person described in and who executed the foregoing consent, and acknowledged that he executed the same for the uses and purposes therein set forth. 1 [Signature of notary.] Note.— Such consent is not necessary if such traffic in liquors was actually lawfully carried on in said premises at the time of the passage of the Liquor Tax Law, March 23, 1896. No. 4. Consent of authorities having- control of public park. {Liquor Tax L'tw, g§ 17, 2«, 27 ) We, A. B., C. D., etc., commissioners of parks [or trustees], having the custody and control of park, in the city of do hereby consent to A. B. trafficking in liquors in such park and receiving a liquor tax certificate therefor, under the provisions of the Liquor Tax Law. Dated , 189.. A. B. O. D., etc. OF THE State of New Yoek. 211 Forms. STATE OF NEW YORK, ) County of , \ **••' On this day of , 189.., before me personally ap- peared A. B., C. D., etc., to me personally known to be the persons described in, and who executed the foregoing consent, and acknowledged that they executed the same for the uses and purposes therein set forth. [Signature of notary.] No. 5. Consent of property owners within two hundred feet of place where the trg,fific is proposed to be carried on. (Uquor Tax Law, %% 17. 36, 37.) We, A. B., 0. D., etc., owners of buildings occupied exclusively as dwellings, and which are within two hundred feet of the nearest entrance to the premises described as No street, in the city [village or town] of , hereby consent that traffic in liquors be carried on in such premises by during a term commencing on the day of 189.., and ending on the day of 189.. Dated , 189.. A. B. C. D., etc. STATE OF NEW YORK, ( County of ) On this day of , 189.., before me personally ap- peared A. B., C. D., etc., to me known to be the persons described in, and who executed the foregoing consent, and acknowledged that they executed the same for the uses and purposes therein set forth. [Signature of notary.] Note.— The consent must be signed by at least two-thirds of the owners of such buildings. Such consent is unnecessary for premises in which traffic in liquors was actually, lawfully carried on at the time of the passage of the Liquor Tax Law, March 23, 1896. 212 Excise and Hotel Laws Forms. No. 6. Information for trafficking in liquors in connection with other business. (Liquor Tax Law, §§ 22, 34.) A. B., being duly sworn, deposes and says, that he resides In in the county of ; that C. D. is engaged in carry- ing on the business of selling groceries [dry goods, provisions or drugs as a pharmacist] at No street, in such city [village or town]; that the said C. D. has a liquor tax certificate under subdivision 1 of section 11 of the Liquor Tax Law [if such is the fact]; that the said C. D. did knowingly and unlawfully traffic in liquor in the same place [or a place communicating with the place] in which such groceries [or dry goods, etc.] are sold, in violation of sections 22 and 34 of the Liquor Tax Law, by selling a glass of whisky to one E. F. on the .... day of 189.. [or as the case may be]. E A. B. Subscribed and sworn to before me, this day of 189.. [Signature of notary.] No. 7. Information for traffic by persons not entitled to certificate. (Liquor Tax Law, §§ 23, 34.) A. B., being duly sworn, deposes and says, that he resides in in the county of ; that one C. D. did traffic in liquors at [describe premises] in violation of sections 23 and 34 of the Liquor Tax Law by selling a glass of whisky to one E. F. on the .... day of , 189. . [or as the case may be], and that at the time of such sale the said C. D. had been convicted of a felony [or was under the age of twenty-one years] [or that the company making such sale is a corporation or associa- tion incorporated or organized under the laws of ] [or that the company maJ^ing such sale is a copartnership, and that the owners of at least one-half interest in the business thereof are not residents of the State of New York (or citizens of the United States)] [or that at the time of such sale the said 0. D. had had a license revoked under the laws in force prior to the passage of the Liquor Tax Law, for a violation of such OF THE State of New Yoek. 213 Formsi laws] [or that said G, D, at the time of such sale had been con- victed of a violation of the Liquor Tax Law within five years], A. B. Subscribed and sworn to before me, this day of 189.. [Signature of notary.] No. 8. Information for traffic in liquors in place where such traffic is not permitted. (lAguor Tax Law, §§ 24, 34) STATE OF NEW YORK, i County of j*®- A. B., being duly sworn, deposes and says, that he resides in In , in the county of ; that one 0. D. did unlawfully and knowingly violate sections 24 and 34 of the Liquor Tax Law as follows: The said C. D. did, on the day of 189.., traffic in liquors in the county poorhouse [or other name of institution] as follows [state facts which constitute traffic]: A. B. Subscribed and sworn to before me, this day of , 189.. [Signature of notary.] No. 9. Petition to change place of traffic. (Liquor Tax Law, §26.) To A. B., county treasurer of county [or deputy com- missioner of excise for county] : Your petitioner respectfully shows that on the . . . day of 189.., a liquor tax certificate was granted to your petitioner, under subdivision 1 of section 11 of the Liquor Tax Law [or as the case may be] to traffic in liquors upon premises situated at No street, in the city [village or town] of which certificate does not expire until the day of , 189.., and that your petitioner desires to carry on such business upon other premises, situated at No street, in said city [village or town]; Wherefore, your petitioner hereby makes application in pur- suance of section 26 of the Liquor Tax Law for permission to 214 Excise and Hotel Laws Forms. carry on such business, upon such other premises, during the balance of the term of such liquor tax certificate. Dated , 189.. O. D. Note.— Applicant must file a new application and bond, as In the first instance. The applicant is required to pay ten dollars for the indorsement of his certificate allowing the transfer of location. [Liquor Tax Law, § 27.] No. 10. Petition to transfer liquor tax certificate. {Liquor Tax Law, § 37.) To A. B., county treasurer of ........ county [or deputy com- missioner of excise for county] : Your petitioner respectfully shows that on the day of , 189.., a liquor tax certificate was granted to your petitioner, under subdivision 1 of section 11 of the Liquor Tax Law [or as the case may be], to traffic in liquors upon premises situated at No street, in the city [village or town] of , which certificate does not expire until the .... day of , 189. . ; that your petitioner desires to transfer such liquor tax certificate to E. F. of said city [village or town], in pursuance of section 27 of the Liquor Tax Law, to enable the said E. F. to carry on, upon such premises, the business for which such liquor tax certificate was issued, for the balance of the term thereof. Wherefore, your petitioner hereby makes application, in pur- suance of section 27 of the Liquor Tax Law, for permission to transfer such liquor tax certificate to the said E. F. during the balance of the term thereof. Dated 189.. C. D. Note.— Transferee must file a new application and bond, as in the case of an original application. Applicant is required to pay ten dollars for the indorsement of his certificate, allowing the transfer. -' Iss.. OF THE State of New Yoek. 215 Forms. No. II. Information for illegal trafficking in liquor with or without certificate. (Liquor Tax Law, §§ 30, 34.) STATE OF NEW YORK, County of A. B., being duly sworn, deposes and says, that he resides in , in the county of ; that on the . . . day of 18.., in such city [village or town], one 0. D. did unlawfully and knowingly violate sections 30 and 34 of the Liquor Tax Law as follows: By selling [or giving away] a glass of whisky [or as the case may be] [to , a minor under the age of eighteen years] [or to , who was intoxicated at the time] [or to , who is an habitual drunkard] [or to who is an Indian] [or to , a person to whom the said C. D. had been forbidden to sell, by notice in writing, in pursuance of subdivision 5 of section 30 of the Liquor Tax Law] [or to , a person, who at the time thereof was confined in the county penitentiary (or other institution)]. A. B. Subscribed and sworn to before me, this .... day of 189.. [Signature of notary.] Note.— See exception in subdivision 6 of section 30 of the Liquor Tax Law, allowing liquor to be sold to inmates of penal and charitable institutions on physician's prescription. No. 12. Information for illegal sale without certificate. {Liquor Tax Law, §§ 81, 84.) STATE OF NEW YORK, ) ^ _ County of > ) A. B., being duly sworn, deposes and says, that he resides in , in the county of ; that on the .... day of 189.., in such city [village or town], one 0. D., did unlawfully and knowingly violate sections 31 and 34 of the Liquor Tax Law as follows: 216 Excise and Hotel Laws Forms. [By selling (offering or exposing for sale or giving away) beer (or as the case may be) in a quantity of less than five gallons to without having obtained and posted a liquor tax cer- tificate therefor] [or by selling (offering or exposing for sale or giving away) beer (or as the case may be) to , in a quantity of less than five gallons to be drunk or used on the premises where the same was sold (or in any outbuilding, booth, yard or garden appertaining thereto or connected there- with describing it), without having obtained a liquor tax certifi- cate therefor]. A. B. Subscribed and sworn to before me, this day of , 189.. [Signature of notary.] No. 13. Information for illegal sale with or without certificate. (Liquor Tax Law, §§ 81, 34.) STATE OF NEW YORK, 1 Countyof , f**-' A. B., being duly sworn, deposes and says, that he resides in , in the county of ; that on the day of 189. ., in such city [village or town], one C. D. did un- lawfully and knowingly violate sections 31 and 34 of the Liquor Tax Law, as follows: By selling [or offering or exposing for sale, or giving away] a glass of whisky to [such day being Sunday] [or between the hours of 1 and 5 o'clock in the morning of such day] [or such day being the day of a general (or special) election (or town meeting), and the sale being made within one-quarter of a mile of the polls of said election (or town meeting) while the same were open] [or within two hundred feet of the grounds or premises upon which the agricultural or horticultural fair was being held] [or such liquor being adulterated with a deleterious substance injurious to health, to-wit ] [or by giving away food to be eaten on the premises where the traffic in liquors is carried on, as follows (state facts)] [by permitting a woman who is not a member of his family, to sell or serve liquor upon the premises] [or by having open (or unlocked) a door from the street (alley, yard, etc.) to a room where liquors are sold or kept for sale during the hours of OF THE State of New Yoke. 217 Forms. , it not being necessary for the egress or ingress of such person or member of his family]; [or by having, during the hours of , a screen (or curtain, etc.), which obstructed a view from the sidewalk, of the bar or place In such building where liquors are sold or kept for sale]. A. B. Subscribed and sworn to before me, this day of 189.. [Signature of notary.] No. 14. Action to recover forfeiture where security has been taken. (Liquor Tax Law, § 32.) SUPREME COURT — County of E. F., County Treasurer of. V. A. B. The plaintiff complains of the above-named defendant and for cause of action alleges, upon information and belief: That the said A. B. is engaged in the traffic in liquors at No on street in the city [village or town] of ; that on the day of , 18. ., one 0. D. deposited with the said A. B., various articles of personal property, to-wit: A watch, etc., as security for the payment by the said C. D. to the said A. B. of the sum of fifty dollars, such indebtedness having been incurred by said 0. D. to the said A. B. for liquor sold by said A. B. to the said 0. D. to be drunk on the premises where the same was sold. That by reason of receiving or depositing of such security the said A. B. has violated section 32 of the Liquor Tax Law and become indebted to the plaintiff, in behalf of the county of and the people of the State of New York, in the sum of one hundred dollars. That, thereupon, I, the county treasurer of the county of have begun this action, in pursuance of section 32 of the Liquor Tax Law. 28 218 Excise and Hotel Laws Forms. Wherefore, plaintifE demands judgment against defendant, for the sum of one hundred dollars, together with the costs of this action. Dated , 189.. [Signature of attorney for plaintiff.] STATE OF NEW YORK, i County of , f**" E. F., being duly sworn, deposes and says, that he is the county treasurer of the county of ; that he has read the foregoing complaint and knows the contents thereof, and that the same is true, as he is informed and verily believes. E. F. Subscribed and sworn to before me, this day of 189.. [Signature of notary.] No 15. Notice to dealer not to sell or give away liquor to a person. (Liquor Taos Law, §§ 30, 39.) To : Take notice that you are hereby forbidden, in pursuance of sections 30 and 39 of the Liquor Tax Law, to sell or give away any liquors to , of the city [village or town] of Dated , 189.. [Signature.] Note.— If such person is wholly or partly a charge upon the town, the notice must be signed by a magistrate or overseer of the poor of the town. Otherwise it must be signed by the parent, husband, wife or child over sixteen years of age. [Liquor Tax Law, § 32.] No. 16. Notice to owner of building not to allow liquor to be sold or given away. {lAqu'ir Tax Law, § 39.) To : ! Take notice that a notice has been served on A. B., occupying premises owned (or rented) by you, at No street, in OF THE State of New York. 219 Forms. the city [village or town] of forbidding him to sell liquors to of the city [village or town] of , and this notice is served upon you in pursuance of section 39 of the Liquor Tax Law. Dated 189.. [Signature.] No. 17. Information for public intoxication. (Liquor Tax Law, § 40.) STATE OF NEW YORK, ^ County of ) **"" A. B., being duly sworn, deposes and says, that he is a police oflScer [or constable] in and for the city [town or village] of , in the county of ; that on the .... day of 189.., he found O. D. Intoxicated and behaving in a disorderly manner in a public place in such city [town or village], viz.: In part in such city [town or village] in violation of the provisions of section 40 of the Liquor Tax Law. A. B. Subscribed and sworn to before me, this day of 189.. [Signature of notary.] No. 18. Information for purchasing or procuring liquor for person to whom the sale of liquor is forbidden. (Liquor Tax Law, § 40.) STATE OF NEW YORK, ) County of , S A. B., being duly sworn, deposes and says, that on the day of , 189. ., O. D. did unlawfully and knowingly violate section 40 of the Liquor Tax Law by piurchasing [or procuring] for , a person under eighteen years of age [or other per- son to whom the sale of liquor is forbidden by section 30 of the Liquor Tax Law] liquor as follows [state facts of purchase]. A. B. Subscribed and sworn to before me, this day of 189.. [Signature of notary.] 220 Excise and Hotel Laws Forms. No. 19. Information for common carrier employing person addicted to intoxication. (Liquor Taw Law, § 41.) STATE OF NEW YORK, i County of ) **" A. B., being duly sworn, deposes and says, that he resides at , In the county of ; that 0. D. is engaged in the business of conveying passengers and property for hire by omnibus to and from [describe business]; that he has continued to employ K. F. as conductor of one of such omnibuses, after having received notice that such person has been intoxicated while in the actual service of said C. D.; that said E. F. habit- ually indulges in the use of liquors, and that by reason of such employment the said G. D. has violated section 41 of the Ijiquor Tax Law. A. B. Subscribed and sworn to before me, this day of , 189. . [Signature of notary.] INDEX. A. Acknowledgment : PAGE. of instrument, how made 5 Actions and proceedings: pending at time of taking effect of act 114 Administrator : surrender of certificate by 69 may continue in traffic in liquor 69 Adulterated food and drink: selling or manufacture of, a misdemeanor 154 Adulteration of liquors: sale of, illegal 84, 94 of wines, liquors, ales and beer 116 Agents: . See Special Agents. ! Agfricultural grounds: sales not permitted on or near 84, 94 Agricultural societies: sales of liquor, etc., near grounds of, illegal 84 Albany: \ courts of special sessions in 162 Alcoholic drinks: study of effects of, in schools 1.30 Ale: See Liquors, etc. Application: for liquor tax certificate, statement to be made upon 55 by purchaser of liquor tax certificate 71 of persons, surrender of certificate by 69 may continue in traffic in liquor 69 222 INDEX. Assignment: page. of liquor tax certiScate 71 Association: ' term defined 25 Asylum: traffic in liquor not permitted in 65 liquors not to be sold to persons confined in 79 Attorneys: appointment of 34 powers of 34 compensation of 35 B. Barmaid: not to serve liquor 84, 85 Barrels: use and disposition of 123 to be stamped, when used by manufacturers of malt liquors 123 stamped, not to be used, etc 123 Beer: See Liquors, etc. Blanks: to be furnished by commissioner of excise 48 Boards of excise: abolished 27 licenses granted by, when to terminate 28 duties of existing 30 books and records of 31 special deputies, to perform duties of 33 Bonds : blanks to be furnished county treasurers and special deputies .'. . 48 of applicants for liquor tax certificate 57 amount and conditions of 57 how executed 57 sureties on 58 upon sale, assignment, or transfer of certificate 71 forfeiture of 104 judgment may be collected from sureties on 105 INDEX. 223 Bonds — Continued: PAQE. conditions of official 136 force and effect of 138 notice of neglect to file 138 validation, of acts of officer before filing 139 neglect to file, creates vacancy 140 Books: to be furnished by commissioner of excise 48 record, of county treasurers and special deputies, what to contain ' 43 Bottles: stamping of, by liquor dealers, etc 125 when not to be used when stamped 126 when use of, deemed unlawful 127 presumptive evidence of unlawful use 127 stamped beer and ale, not to be refilled 152 keeping same, with intent to refill 153 Brand: of butts, hogsheads, barrels, casks and kegs, by liquor manufacturers 123 Brewer: special tax upon 181 Brooklyn: courts of special sessions in 160 O. Casks: branding of, by liquor manufacturer 123 branded, when not to be used 123 Certificates, liquor tax: to be of four grades 36 holder of, may traffic iu liquors to be drank on or off the premises 37 of common carriers, amount of tax for 39 blanks to be furnished to county treasurers and special deputies 48 not to be issued in towns voting no license 52 statements to be made upon application for 55 to be issued upon payment of taxes 59 form of 61-63 posting of 64 224 IISTDEX. Certificates, liquor tax— Continued: pmk. not to be granted to certain persons 65 surrender and cancellation of 69 pro rata amount of tax to be refunded upon 69 may be sold, assigned and transferred 71 indorsement upon certificate 71 fee for 71 may be revolied, upon petition to supreme court 73 to be forfeited upon two convictions of employes 100 not to be Issued to persons convicted, within five years. . 101 Certiorari, •writ of: upon refusal to issue or transfer certificate 72 Children: in saloons 151 Church: traffic in liquors not permitted within 200 feet of 66 measurements, how made 66 effect of exception, as to places formerly licensed 67 City courts: jurisdiction of, as to violations of Excise Law 155 indictments, when sent to 156 Civil action for damages: recovery not to be had unless written notice be given .... 107 persons injured by intoxication may recover from seller, 107 who may mUlntain action 107 Civil Damage Act: See Civil Action for Damages. Civil service: rules of, how applied to officers appointed by commis- sioners of excise 35 Classification: of tax certificate 36-39 Clubs, social: illegal sales by 88 Commitment: form of 169, 174 when and how made 172 ball upon 173 INDEX. 225 Commissioner of Bzcise: PASS. appointment of 31 bond of 31 salary of 31 oflflce of, how furnished 32 may appoint secretary and clerks 32 special deputy commissioners 33 special agents and attorneys 33, 34 attorneys 34 to furnish books and blanks 48 certificates to common carriers, to be issued by 60 Common carriers: tax, for sale of liquors by 39 application for tax certificate by 56 employment of persons addicted to intoxication, by 113 Compensation : of state commissioner of excise 31 of deputy commissioner, secretary and clerks 32 of special deputies 33 of special agents 34 of attorneys' 35 Consents: of owners of premises to be filed with statements 55 of authorities controlling public parks 56 of owners of dwellings within 200 feet 56 Constables: to notify district attorneys of violations 106 may enter premises where liquors are sold 106 Constitutionality: of Liquor Tax Law 22 Contempt of court: violation of order of injunction a 78 Corporations: foreign, certificate not to be granted to 65 County clerk: : register of county same as 7 County courts: 1 | jurisdiction of ^^^ 29 226 IISTDEX. County treasurer: w^ax. taxes paid to 46 how distributed by 47 compensation of 48 blanks and books to be furnislied to 48 to approve of bond of applicants 60 certificates to be issued by 60 refusing to grant certificate, to state reasons 72 review of action of 72 to notify district attorney of violations 106 may be removed by governor for failure to perform duty, 107 Courts: jurisdiction of, as to violation 103 Credit sales of liquor, etc. : civil actions for, no recovery in 98 Curtain : i not permitted during certain hours 84, 95 D. I Damages: See Civil Action for Damages. Days: calendar, includes what 8 how computed 8 Definitions: property 2 real property 2 personal property 3 person 3 judge 3 lunacy ; idiocy 3 gender; number; time 3 heretofore; hereafter; now 3 last; preceding; next; following 4 folio 4 writing; signature 4 seal 4 oath; afiidavit; swear 4 choose; elect; appoint 6 village 7 state; territory ,. . . . 7 INDEX. 227 Definitions — Continued: paob. year 7 montli 8 days 8 liquors 24 trafficking in liquors 24 association 25 hotel 85 Deputy commissioner of excise: appiointment of 32 salary of 32 bond of 32 Disorderly persons : ' intoxicated persons are 112 who are 177 arrest of 177 Disorderly places: what are 1^2 not to be kept 152 Discrimination : because of color, race or creed, misdemeanor 205, 206 penalty therefor 205, 206 District attorney: to be notified by public officers of violations 107 may be removed by governor for failure to perform duty, 107 Doors : to be closed during prohibited hours 84, 95 Druggists: ^ See Pharmacists. Drunkard, haljitual: liquors not to be sold or given to 79 Dwellings: owners of, within a limit of 200 feet, to consent to traffic . ,. 56 in liquors Dry goods business: persons engaged in, when may traffic in liquors 64 228 INDEX. E. Election days: p^ob_ sales not permitted on 84, 94 screens, etc., not permitted on 84 pharmacists may sell on 85 Employes: of holder of tax certificate, when liable 99 upon two convictions of, certificate of employer to be forfeited 100 Endorsement: upon certificate, upon receiver, assignee, executor or administrators continuing traffic in liquors 69 fees for 71 Erie county: special deputy for 33 Examination: > defendant in criminal proceedings 168 depositions to be read 168 of witnesses in presence of defendant 169 who may be present 171 testimony, how taken and authenticated .... 171 Excise: See Boards of Excise. Excise board: See Board of Excise. Excise commissioner: See Commissioner of Excise. Excise moneys: See Taxes. Execution: articles exempt from, not to be sold or pledged for liquors, etc 98 Executor: surrender of certificate by 69 may continue in traffic in liquor 69 INDEX. 229 Fair grounds: p^o, sales near 84, 94 False statements: penalties for 100 Felony: certificate not to be granted to person convicted of 65 Fermented liquors: what are 26 Fines: for violation of act, hov? collected 104 to be entered as a judgment 104 Fire-escapes: hotel-keepers required to provide 203 notice to be posted 204 duty of chief engineer as to 204 penalty for not providing 205 Food: not to be given away and eaten on premises where liquor is sold 84 Forms: of liquor tax certificates 61-6S G. Girls: not to serve liquor 84, 95 Governor's memorandum: memorandum 13 Grand jury: violations of Liquor Tax Law, prosecuted by indict- ment of 103 power of, to inquire into crimes 174 evidence receivable before ' 174 not bound to hear evidence for defendant 175 members of, to declare their knowledge of crimes 175 must inquire as to persons imprisoned 175 as to management of public prisons 175 as to conduct of officials 175 Groceries and provisions: persons engaged in selling, when may traffic in liquors.. 64 230 INDEX. Chiests of innkeepers: ' paoe. liquors served to, on Sundays, etc 85 who are 193 loss of property of 193 sale for valuables of 198 neglect to deposit valuables 198 jevFels and ornaments, what are 199 notice to, that safe is provided 199 clothing, loss of 200 H. Holidays : public, what days are 7 half, term includes what 7 Hotels: ' " ' liquor tax certificates for 36 term defined 85 may sell on Sunday, etc., to guests 85, 98 fire-escapes upon 208 notice to be posted 204 duty of chief engineer 20* penalty for not providing 205 See Certificates; Sales of Liquor; Revocation of Certificates; Civil Actions for Damages; Innkeepers, etc. Hotel-keepers : local option as to sale of liquors by 50 may sell liquors on Sunday, etc., with meals 85 See Innkeepers. Hours : | sales of liquors not permitted between certain 84, 93 screens, etc., not permitted during certain 84 I. Indians: i sales of liquors, etc., to, illegal 79 pawns or pledges by, for liquors, etc 129 Indictment: for illegal sales without license 102 proof on trial of 102 violations of Liquor Tax Law, prosecuted by 103 when sent to city courts 156 degree of evidence to warrant 175 See Grand Jury. INDEX. 231 Industrial school: traffic in liquor not permitted in 05 liquors not to be sold to persons confined in 79 Information: what it is, to whom made 163 informant to be examined 164 forms of. (See Forms.) , See Examination. Injunction: to restrain traffic in liquor without certificate 76 petition to supreme court for 77 violation of order of, a contempt of court 78 Innkeepers : who may keep an inn 191 who are responsible as 191 common-law liability of 192 same as common carrier I93 guests of 193 liability for loss of property of guests 194 to provide safe for valuables 19s notice that safe is provided 198 not liable if guests neglect to deposit 198 liability for loss of clothing of guest limited 199 loss by fire caused by incendiary 199 limitation of value of animal burned 199 liens of, how enforced 200 sale of goods under 200 notice of sale 200 surplus upon sale, how disposed of 201 fire-escapes, to provide 202 notice to be posted 203 penalty for not providing 204 not to discriminate because of race, creed or color 204 penalty for illegal discrimination 205 in New York city, to report deaths 206 refusing to receive guest, guilty of misdemeanor 207 frauds upon, how punished 208 not to exclude persons of color 208 See Hotels; Certificates; Traffic in Liquor; Taxes, etc. Intoxicated persons: sales to, illegal 79, 82 employment of, by common carriers 113 232 INDEX. Intoxication : p^s, , in public place a misdemeanor 112 employment of persons addicted to, by common carriers, 113 act committed in state of 149 physicians causing death while under 149 in a state of, administering poison 149 of persons running trains or boats 149 J. Jail: liquors, etc., to inmates 79 Judgment: fines and penalties to be entered as a 104 execution to be issued thereon 105 how satisfied 105 Jurisdiction: of governor, to sign Liquor Tax Law 13 of courts, as to violation of tax laws 103 K. Kegs: branding of, by liquor manufacturer 123 branded, when not to be used 124 Kings county: special deputy commissioner for 33 L. I Legislature: right of, to regulate liquor traffic 23 Licenses: granted by boards of excise, when to terminate 28 rights and liabilities of holders of, how regulated 28 effect of repeal upon existing 29 are not contracts 29 Lien: ! I amount of tax a lien on premises 46 of innkeepers and boarding-house keepers, how enforced, 201 sale of goods 201 notice of sale 201 surplus upon sale, how disposed of 202 of boarding-house keeper 203 upon baggage of guests 203 INDEX. 933 Liquors: ^ FAOB. intoxicating, powers of legislature to regulate traffic in... 22 term defined 24 trafflclsing in, term defined 24 fermented, what are 26 malt, what are 27 taxes upon business of trafficking in 36 selling of, local option as to j^O not to be sold or given away to certain persons t9 not to be sold or given away at certain times 84 adulterated, not to be sold 84 civil action not to lie for sale of, to be drunk on premises, 98 sales of, without a tax certificate, illegal 83 what constitutes illegal sale of 86 furnished by social clubs 88 indictment for illegal sale of ; 102 proof on trial of 102 adulterations of 116 spirituous, fermented or malt, analysis of 119 use of kegs, casks, etc., used by manufacturers 123 children In places where sold 151 See Certificates; Commissioner of Excise; Special Dep,uty Commissioners; Special Agents; Sales of Liquors; Taxes, etc. Liquor tax certificates : See Certificates. Liquor Tax Law: not a tax law 21 constitutionality of ^ 22 copies to be printed 114 when to take effect 115 Local option: granted to towns ^^ ballots for, what to contain 50 propositions to be submitted 50 vote upon ^■'■ not to affect term of tax certificate 51 questions when again submitted 51 petitions for submission 51 statement of result of vote upon, filed with county treas- urer ^^ 52 constitutionality of 30 234 INDEX. M. Magistrates: p^qb, who are 163 warrants issued by 103, 164 Halt liquors: what are 27 Uanufacturers of liquors, etc.: brand upon butts, hogsheads, barrels, etc 123 may issue search warrant for 124 stamping of bottles, syphons and kegs 125 stamps and brands to be filed 123, 125 special taxes upon 181 llessenger boys: sent to unlicensed saloon 151 llinor : liquors not to be sold or given to 79 Houth : means a calendar month 8 how computed 8 N. I New York city: deputy commissioner for 33 courts of general sessions of, jurisdiction 158 special sessions, courts of 161 No license: tax certificates not to be issued in towns voting for 52 O. Oath: includes what » official, where filed, etc 136 notice of neglect to file 138 validation of acts of officer, before filing 139 neglect or refusal to file, creates vacancy 140 Office: qualifications for holding 133 commencement of term 133 oath of, how taken i 136 vacancies in, how created 140 removals from, how made 144 expenses of, to be paid 147 INDEX. i35 Officers: PASS, local, term includes what 133 qualifications 133 holding over after expiration of term 133 commissions of, to be in writing 134 oflicial oaths of 130 official undertakings 136 acts of, before filing oath or bond, validation 139 resignations of, how made 140 local, rem.oval, how made 144 expenses of, to be paid 147 See Commissioner of Excise; Special Deputy Commissioners; Special Agents; Oath; Bond; Vacancies, etc. Order of supreme court: revoking and cancelling a liquor tax certificate 73 restraining traffic in liquor 77 violation of, a contempt of court 78 P. Parks, public: authorities controlling, to consent to traffic in liquors .... 56 Pawns: for purchase price of liquor, void 98 by Indians for liquor, void 129 Peace officers: rights of, on licensed premises 106 who are 163 to carry vagrants before magistrate 177 Penal institution: traffic in liquor not to be permitted in 65 liquors not to be sold to person confined in 79 Penal;ties: for violations of the act 109 for false statements ^^^ for violations of act, how collected 104 to be entered as a judgment 104 Penitentiary: liquors, etc., to inmates '^ Person: term includes corporation 236 INDEX. Petitions: Pioi. for submission of questions as to selling liquors in a town, 51 to supreme court to revoke certificates 73 forms for. See Forms. Pharmacist: amount of tax paid by 38 to sell liquors upon prescription 38 submission of question as to sale of liquors by , 50 may sell liquor upon prescription, on Sundays, election days, etc 85 sales by, generally 97 Physicians : acts of, while intoxicated 149 Physicians' prescriptions: druggists to sell liquors upon 38 liquors not to be sold or given to inmates of public institu- tions without 79 Pledges or pawns: for liquor, void 98 by Indians for liquors, void 129 Police courts: jurisdiction of 163 Police of9.cers: to notify district attorneys of violations 106 may enter premises where liquors are sold 106 Poor house: trafQo in liquors not permitted in 65 liquors to inmates 79 Posting: liquor tax certificates in conspicuous places (54 Population: of a city or village, how determined 39 of cities and villages, by census of 1890, 1892 40 Premises : consent of owners of, to traffic in liquors on 56 rights of officers upon licensed 61 near churches and schools not to be licensed 68 INDEX. 9,37 Protectory: traffic in liquor not permitted in ^^^^5 liquors not to be sold to person confined in.............. 79 Public officers: to notify district attorney of violations : 106 penalties for neglect to perform duties IO7 Public Officers Law: applies to civil officers J32 R. Bates: of taxes for liquor tax certificates 3g Receiver: of corporation, etc., surrender of certificate by 69 may continue in traffic in liquor 69 Becord-book: of county treasurers and special deputies, what to contain, 48 Bef ormatories : liquors to inmates 7q Befusal: of officers to issue or transfer certificates may be re- viewed 72 Beligious meeting: disturbing, a misdemeanor 150 what constitutes ofCense 150 Bemoval: of local officers, how made 144 of officers by senate, proceedings 143 by governor, proceedings 143 evidence in proceedings 143 Bepeal: of amendatory act, effect of 9 of statute, does not affect rights 10 of laws by Liquor Tax Law, effect of 114 schedule 115 Residents of other states: certificate not to be granted to 65 Resignations: of public officers, how made 141 238 INDEX. Jletail liquor dealers: Piai. must pay special tax 178 must register with internal revenue collector 178 amount of tax 182, 183 when due 179 how paid 179 to post stamps upon payment 179 not exempt from state penalties 181 instructions as to payment of special tax 184 regulations relating to tax on distilled spirits 18(> Bevocation: of liquor tax certificate upon petition to supreme court 73 nights of citizens : protected 206 ! S. Sale: of liquor tax certificate ' 71 Sales of liquors: illegal, to minors under eighteen years 79 ^__-— to intoxicated persons 79, 82 to habitual drunkards 79, 83 to Indians 79 to person, forbidden by written notice 79 to inmates of public Institutions 79 without tax certificate 83, 85 on Sunday or before 5 a. m. on Monday 84, 92 between 1 and 5 a. m 84, 93 near fair grounds 84, 94 on election day 84, 94 by hotel-keepers on Sundays, etc 85, 98 what constitutes illegal 86 by social clubs 88 indictment for illegal 102, 103 proof on trial of 102 Saloon: certificates for; fees 36-39 children in, not allowed 151 unlicensed, messenger boys not to be sent to 151 See Retail Liquor Dealers; Certificates; Application; Bonds; Revocation of Licenses. INDEX. 239 Saving clause: pAas. of Liquor Tax Law, as to rights accrued, etc 114 Schoolhouse: traffic in liquor not permitted within 200 feet of 66 measurements, how made 66 effect of exception as to places formerly licensed 67 Screens : not permitted during certain hours 84, 95 Secretary of state: to print copies of act 114 Secretary: of state commissioner of excise 32 salary of 32 Securities: for liquor, void 98 persons taking, to forfeit double the sum secured 98 Sheriffs: to notify district attorneys of violations 106 Social clubs : liquors furnished by 88 Special agents: state commissioner to appoint 33 salary and bond of 34 deemed confidential agents of commissioner 34 duties of 34 may enter place where liquors are sold 34 how classified under civil service 35 to notify district attorney of violation 106 penalties for neglect to perform duties 106 Special deputy commissioner : special deputy commissioner 33 salaries of, in counties of New York, Kings and Erie 33 oath and bond of ^3 duties of ^3 taxes to be paid to 46 how distributed by *'^ bonds of applicants to be approved by «> certificates to be issued by 60 to notify district attorneys of violations 106 penalties for neglect to perform duties 106 240 INDEX. Special sessions, courts of: paob. jurisdiction of 158 case removed to grand jury 159 proceedings therein 159 powers of 160 in Brooklyn, jurisdiction 160 recorder of cities may hold 161 in New York city, jurisdiction 161 in Albany, jurisdiction 162 Special tax: • registry of persons liable to 178 additional 178 for more than one business 179 when due 179 how paid 179 payers, to post stamps 179 list of, to be kept by collector 180 not exempt from state penalties 181 instructions as to payment 184 amount and rate of 185 Spirits : includes what 26 rectified, what are 26 distilled, what are 26 State board of health: duties in respect to adulterations 118 analysis of liquors, etc., by 119 State commissioner of excise: See Commissioner of Excise. State hospital: traffic in liquor not permitted in 65 liquors not to be sold to persons confined in TO Statements : upon application for liquor tax certificates 55 consents of owners of premises to be filed with 55 of prisoner in criminal proceedings 170 what to contain 170 waiver of right 170 to be read 170 INDEX. 241 statutes: PASE. repealing, effect of , g by Liquor Tax Law (Laws 1896, chap,. 112) 114 Statutory Construction Law: applicable to every statute 2 laws repealed by 12 Sunday: sales of liquor, etc., upon, illegal 84, 92 hotel-keepers may sell to guests 85, 98 sales on, prohibited 150 disturbing religious meetings on 150 what constitutes ofCense 150 Sureties: on bonds, who may be 57 justification of 58 Surrender: of liquor tax certificate, amount refunded upon 69 by receiver, assignee, administrator or executor 69 T. Taxes: amount assessed upon business of trafficking in liquors 36 when due and payable 46 amount of, a lien on premises 46 to be paid to special deputies and county treasurers 46 how distributed 46 certificates to be issued upon payment of 59 amount refunded upon surrender and cancellation 69 Term: of oflice of commissioner of excise 31 of oflice, commencement of 133 holding over after expiration 133 of officers chosen to fill vacancies 145 Time: standard, what is 9 Town meetings: liquors not to be sold during 84 pharmacists may sell on S5 31 P^OE. 242 INDEX. Towns: questions as to sale of liquor in, to be submitted to vote.. 60 Traffic in liquors: local option as to, in towns 50 in connection -with other business, restricted 6» persons not to engage in 65 not to be permitted, in public institutions 65 within 200 feet of church or school 66 without liquor tax certificate, injunction to restrain 76 punishment for 100 Transfer: of business to other place 70 certificate to be indorsed upon 70 of liquor tax certificate upon sale 70 U. United States: special tax upon wholesale and retail liquor dealers 178 V. Vacancies : in offices generally, how created 140 terms of officers chosen to fill 145 in office of officer appointed by governor, how filled 143 filled by legislature 146 other, how filled 146 Vagrants: who are 176 peace officers to carry before magistrate 176 Villages : term means incorporated village 7 population of, how determined 39 table showing population of, in 1890 41 Violations of Liquor Tax Law: persons liable for 99 penalties for 100 to be prosecuted by indictment 103 of the act generally 113 INDEX. 243 W. Warrant of arrest: p^g^. form of 104 . when -win issue Itsi contents of 165 to whom directed 165 indorsement upon, for service in other county 166 Wholesale liquor dealer: not to engage in business before special tax is paid 178 to register with collector 178 amount of tax 183 instructions as to payment of tax by 184 regulations concerning payment of tax on distilled spirits, 186 monthly returns by, to United States collector 187 Wines: \ | adulterations of 120 duties of state board of health in regard to 118 analysis of, by state board of health 119 pure, defined 121 half and made, defined 121 packages of, how stamped or labeled 121 Woman: not to serve liquor 84, 95 Writ of certiorari: See Certiorari, Writ of.