THIRD DEPARTMENT, DECEMBER TERM, 1874. Apply the amendatory Law of 1869 to these three sections of the act of 1857, in manner above stated, by inserting the proper exceptions therein to give the former law effect, and there will remain no provision forbidding the granting of licenses by the board of excise to any person in their discretion, to sell ale or beer to be drank on the premises of the licensee, nor any provision forbidding or making penal the selling of those beverages by the person licensed, to be drank on the premises specified in his license. Then why need any one take license at all to sell ale or beer? The answer is, that there is still a provision of law which renders the selling thereof without license, penal. Section 13 declares that "whoever shall sell any strong or spirituous liquors" [which terms embrace ale and beer] "or wines, in quantities less than five gallons at a time without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offense." This provision applies to the amendatory Law of 1869, which, while it removes all restriction upon the authority of the board of excise to grant licenses to any person in their discretion, to sell ale and beer in small quantities to be drank on the premises of the person licensed or elsewhere, yet, provides for the granting of a license to sell such beverage, and adopts the Law of 1857, which renders it penal to sell it without license. Therefore, no person without license can sell ale or beer, in quantities less than five gallons, with impunity. But having license to sell such beverage, as authorized to be granted by the amendatory Law of 1869, the licensee may sell it without any restriction as to the place where it is to be drank. If the conclusions above declared be sound, there are, under the provisions of the excise laws of this State now in force, three classes of persons who may be licensed by the board of excise to sell intoxicating drinks, to wit: Inn, tavern and hotel keepers, who may, under proper license, sell in quantities less than five gallons, to be drank on the premises; (2), persons who may sell by small measure, not to be drank on the premises; and (3), persons who may sell "ale or beer" only, without restriction as to the place where the same may be drank. In the case at bar, no justification was offered for the sale proved against the plaintiff in error under an innkeeper's license. He was not an innkeeper, nor did he attempt to justify the sale as 1 THIRD DEPARTMENT, DECEMBEK TERM, 1874. such. Nor did his license, offered in evidence, afford him protection for the sale of strong and spirituous liquors (except ale and beer) to be drank either on or off his premises. It could not justify a sale by him (except of ale or beer) in quantities less than five gallons, to be drank on his premises, for the board of excise had no authority to grant such license to any others than to inn, tavern and hotel keepers, and to persons to sell ale and beer under the provisions of the act of 1869. And it did not justify a sale by him (except of ale and beer) by small measure to be drank elsewhere, because it did not contain the clause required to be inserted by section 11 of the act of 1857, without which the licensee would, in case of sale, be amenable to section 13 of that act; which last mentioned section declares a penalty against persons who sell without license granted as in that act provided. The license offered in evidence was of no force or effect whatever, except as to ale and beer. The question then is, whether it was effectual to protect the licensee for the sale of ale and beer on draught. If so, there being by law no restriction as to the place where it might be drank, the sale proved against the plaintiff in error was justified by it. The Law of 1870 authorized an application for, and the granting of, a license to sell "ale and beer." Section 4 of the Law of 1869, fixed the terms. In this case the licensee applied for greater privileges, to wit: the right to sell generally, strong and spirituous liquors and wines, as well as ale and beer; and it seems the board of excise attempted to confer those greater rights. In this there was a failure. But I am unable to perceive any good reason why the license was not good to the extent the board had authority to license. It is plain that it was intended by the board to grant the privilege to the licensee to sell ale and beer. Such intent appears on the face of the license. It grants the right in express terms. Strike therefrom all that is valueless in law, and the license is complete as a license to sell ale and beer. It does not follow that if inoperative in part, it is therefore void in toto. The board of excise intended to grant, and did in fact grant, the right to the licensee to sell ale and beer at his saloon. This the board might do by law. Whatever else was desired, or was attempted to be done beyond the power of the board to do, and in no way effecting what it THIRD DEPARTMENT, DECEMBER TERM, 1874. might do, would not vitiate and render void that which was done by lawful authority. The granting of the license was a judicial act. The judgment and discretion of the board were exercised with a view to meet the requirements of law applicable to the granting of a license to sell ale and beer. So the board adjudged in favor of the application under the provisions of law; and, according to its requirements, determined the character of the applicant, the fitness of the proposed place of sale, and the amount to be paid for the license. I can perceive no reason why a license may not be so framed as to combine the right to a licensee, other than an innkeeper, to sell strong and spirituous liquors and wines by small measure, with the special right to sell ale and beer. If all the conditions and requirements of the law be satisfied, the applicant may, I think, be allowed to sell strong and spirituous liquors and wines to be drank off his premises, and ale and beer to be drank thereon. Both privileges may be granted to the same person, to be exercised at one and the same place. If so, why may not the board, observing all requisite formalities, combine both in one license? I can see no good reason why this may not be done. This subject of inquiry is not, however, of any importance in this case. The questions here are, whether the board of excise had authority in law to grant licenses to persons, other than inn, tavern and hotel keepers, to sell ale and beer, in quantities less than five gallons to be drank on the premises; and if so, then whether the plaintiff in error in this case held such license at the time of the sale of ale proved against him. These questions must be answered in the affirmative. The license offered in evidence afforded a justification of the sale proved against the plaintiff in error, and its exclusion on the trial was erroneous. There is no force in the suggestion that the statute does not, in express terms, declare the unauthorized sale of intoxicating drinks a misdemeanor, or declare it punishable as such. It is sufficient that the act charged in the indictment, is declared by law to be an offense, and is made penal. This subject is not open to discussion, having been elaborately considered and definitely settled THIRD DEPARTMENT, DECEMBER TERM, 1874. by the Court of Appeals. * But the conclusions above stated, require that a new trial be granted. COUNTRYMAN, J. : The important question in the case arises on the ruling of the court, rejecting the license offered in evidence, granting to the plaintiff leave "to sell and dispose of * *ale and beer, in quantities less than five gallons, at his saloon." The only sale proved on the trial to sustain the conviction, was of ale at the plaintiff's saloon, which had been drank on his premises. The court held that no power existed to grant a license giving the plaintiff the right to sell ale and beer to be drank at his saloon, and that the license in question afforded him no protection. The precise point is therefore presented, whether the board of excise had power, under the various statutes now in force regulating the sale of intoxicating liquors, to grant a license to a saloon keeper to sell ale and beer to be drank on his premises. * The act of 1857† gave the "power to grant licenses to keepers of inns, taverns and hotels * *to sell strong and spirituous liquors and wines to be drank in their houses, respectively; and to store-keepers * a license to sell such liquors and wines in quantities less than five gallons, but not to be drank in their shops." etc. It then prohibited granting a license" to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposed to keep an inn, tavern or hotel." § It also required that "in all licenses granted (excepting to inn, tavern or hotel keepers) to sell strong or spirituous liquors or wines, in quantities less than five gallons, there shall be inserted an express declaration that such license shall not be deemed to authorize the sale of any strong or spirituous liquor or wine, to be drank in the house or shop of the person receiving such license." It further provided that "such licenses " [to others than hotel keepers] "shall not be granted * * until such applicant shall have executed a bond with sufficient sureties * * * * conditioned that he will not sell, or suffer to be sold, any strong *Behan v. The People, 17 N. Y., 516; Hill v. The People, 20 id., 363; Foote v. The People, manuscript opinion by FOLGER, J. + Laws of 1857, ch. 628. + Sec. 2. § Sec. 6. | Sec. 11. THIRD DEPARTMENT, DECEMBER TERM, 1874. It or spirituous liquors or wines to be drank in his shop or house * * and will not suffer" the same to be drank there.* By another provision, it was declared that whoever should sell any strong or spirituous liquors or wines to be drank in his house or shop, or should suffer or permit the same to be drank there without having obtained a license therefor as an inn, tavern or hotel keeper, should forfeit fifty dollars for each offense. was subsequently determined in the Court of Appeals, that ale and beer were included in the terms "strong and spirituous liquors," as used in these provisions, and therefore came within the prohibition of the statute. And it was also judicially settled by the same high authority, that a willful violation of any of these provisions constituted a criminal offense, for which the party may be indicted, convicted and punished. § It is very clear that under these provisions, no valid license could have been granted to the defendant to sell ale or beer to be drank in his saloon, and his conviction, before the amendment of the statute, would have been unexceptionable. It will be observed that under the act of 1857, there was full power to grant licenses to hotel keepers to sell strong and spirituous liquors, including ale and beer, to be drank on their premises, and full power to grant licenses to all other persons (possessing of course the statutory qualifications) to sell liquors, including ale and beer, by the measure, in quantities less than five gallons, with the simple condition annexed, that the liquors could not be drank at the place of sale. The hotel keepers accordingly secured the monopoly of selling liquor, including ale and beer, as a beverage. This condition of affairs caused loud complaints on the part of the keepers of saloons and boarding-houses, who made repeated efforts to induce the legislature to grant them the same privileges held by the keepers of hotels. The act of 1869 was finally passed in answer to these complaints and petitions, and was manifestly intended to enlarge the rights of the petitioners. It amended the act of 1857 in several particulars not material to our present pur* Sec. 12. + Sec. 14. Commissioners of Excise v. Taylor, 21 N. Y., 173. § Behan v. The People, 17 N. Y., 520; Morris v. The People, 2 Thomp. & Cook, 219. Laws of 1869, chapter 856. |