The People of the State of New York, Respondent, v. John M. Meyers

The People of the State of New York, Respondent, v. John M. Meyers. Under the provision of the Excise Act of 1873 (§ 4°, chap. 549, Laws of 1873), which provides that a conviction for a violation of any provision of said act, or of the acts thereby amended, by any person or at any place licensed as therein provided, shall forfeit the license, and authorizes the board of excise upon being satisfied of a violation of any such provision to cancel and revoke the license, a conviction of a bar-tender of a licensed person for an offense under the act, committed at the place licensed, operates ipso facto to annul the license. . The act casts upon the licensee the necessity, in order to protect himself in the enjoyment of his license, of seeing to it that no violation shall be committed upon the licensed premises ; and he may not claim that the offense was committed without his knowledge or consent. It is competent for the legislature to prescribe such a cause of forfeiture. It seems that the provisions of the act of 1857 (§§ 25, 26, chap. 628, Laws of 1857), providing for a revocation of a license, after “ a conviction or judgment” has been obtained against a licensee for a penalty given by the act, or upon his bond, apply only where there has been a recovery in a civil proceeding, and do not include the case of a conviction upon indictment. (Argued February 8, 1884 ; decided February 26, 1884.) Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order inade January 25, 1884, which affirmed a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered upon a verdict convicting the defendant of selling liquor without a license. Defendant had a license, but it was claimed by the prosecution that it was forfeited and revoked by a conviction of his bar-tender for selling liquor on defendant’s premises on Sunday. William F. Kintzing for appellant. As the license of defendant had not been revoked by the commissioners of excise, it was in full force and effect at the time charged in the indictment. (Laws of 1873, chap. 540, § 4; People v. Foote, 56 N. Y. 321; 2 Edmonds R. S., §§ 5-20.) The conviction of defendant’s bar-keeper did not operate as a revocation of appellant’s license ipso facto without action being had b.y the board of excise. (People v. Utter, 44 Barb. 170.) . John Vincent for respondent. A conviction of a violation of the act of 1873 annuls the license. (People v. Tighe, 5 Hun, 25.) The legislature have the right to regulate the sale of intoxicating liquors, and the license held by the defendant in this case was a mere permit to sell liquor on the premises occupied by him, it gave him no vested right, it was a mere privilege, and the legislature have a perfect right to revoke or continue licenses as they may deem proper. (Bd. of Excise v. Barry, 34 N. Y. 657; People v. Wright, 3 Hun, 307.) The selling without a license was a clear violation of the statute, and therefore a misdemeanor. (Foote v. People, 56 N. Y. 323.) [MAJORITY — Andrews, J.] Andrews, J. The question in this case turns upon the construction of the fourth section of the act, chapter 549, of the Laws of 1873, entitled “An act to amend an act entitled £an act regulating the sale of intoxicating liquors,’ passed April 11, 1870, and the act entitled ‘ an act to suppress intemperance and to regulate the sale of intoxicating liquors ’ passed April 16, 1857.” That section is as follows : “ Any conviction for the violation of any provision of this act, or of the acts hereby amended, by any person or persons licensed, or at any place licensed as herein provided, shall forfeit and annul such license. The board of excise of any city, town or village may at any time, and upon the complaint of any resident of said city, town or village, shall summon before them any person or persons licensed as aforesaid; and if they shall become satisfied that any such person or person's has, or have violated any of the provisions of this act or of the acts hereby amended, they shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do, and where necessary to enter upon the premises and take possession of and cancel such license. Upon an inquiry the said board or the party complained of may summon, and the said board may compel the attendance of witnesses before them, and examine them under oath.” The sale of intoxicating liquors by any-inn, tavern or hotel-keeper, or other person on Sunday, is made by the act a misdemeanor. (§ 5.) The conviction of the defendant’s bar-keeper for the sale of liquor on Sunday was, therefore, a conviction for an offense under the act. "We think the conviction operated ipso facto to annul the defendant’s license. The first clause of section 4, is awkwardly drawn, but in view of the whole act, its meaning is plain. The license authorized by the second section is a license to one or more designated persons to sell intoxicating liquors, etc., at a specified place within the city, town or village, within which the license is granted. It was competent for the legislature in its discretion to annex any conditions to the granting of licenses which it deemed proper, and to prescribe causes of forfeiture. (Board of Excise v. Barrie, 34 N. Y. 657.) It is plain that a conviction of a licensee, of an offense under the act works a forfeiture of his license. The act so declares. The words are “ such conviction shall forfeit and annul such license.” In addition the same result is made to follow any conviction for a violation of the act, at the place licensed. The act casts upon the licensee the necessity, in order to protect himself in the enjoyment of the license, of seeing to it that no violation shall be committed on the licensed premises. It is not left open to the licensee to claim, in case of the conviction of another for such violation, that it was committed without his knowledge or consent. The words “or at the place licensed,” were obviously inserted to meet this precise case. Any other construction would make the words meaningless. The subsequent clause of the section provides for the annulment of the license by the board of excise, upon proceedings instituted upon its own motion, or upon complaint of a resident. This jurisdiction does not depend upon the fact of a prior conviction under the act. It is an independent remedy for the annulment of a license by the board of excise, whenever it becomes satisfied upon inquiry, after notice, that the licensee has violated the act. It supplements the provision in the prior clause, and operates as an additional restraint upon the license. It is not necessary to consider sections 25 and 26, of the act of 1857. Those sections provide for the revocation of a license after a conviction or judgment has been obtained against a licensee for a penalty given by the act, or upon his bond. The word conviction in these sections is inaccurately used. But the power of revocation given is by the context plainly limited, and exists only where there has been a recovery in a civil proceeding, in one of the cases specified, and does not extend to the case of a conviction upon indictment. This question was considered in People v. Tighe (5 Hun, 25). The opinion of Gilbert, J., in that case contains a satisfactory exposition of the statute in question. The judgment should be affirmed. All concur. Judgment affirmed