
    MATTER OF MUNDY v. EXCISE COMMISSIONERS OF NEW YORK CITY.
    N. Y. Supreme Court, First Department ; Special Term and Chambers,
    1880.
    Liquor Licenses.—Ale and Beer Licenses.—Statute Law.— Effect of a Reference to a Law which has been Amended.—Excise Laws Construed.
    A license authorizing the sale of ale and beer to be drunk on the premises, may be granted to a person who is not licensed as a hotel keeper.
    A general reference, in a statute, to another statute, which at the time- of the reference has been amended, means the statute as amended, and not as originally passed. Hence, where a law provides that an act passed at a specified date shall be deemed a part of it, it intends the act with its amendments, and not the act as it was at the date mentioned.
    The amendment to the act of 1857 (X. 1857, c. 628, p. 405), passed in 1869 (X. 1869, c. 856, p. 2060), —providing for the granting of ale and beer licenses elsewhere than in the Metropolitan police district, -—was by the act of 1870 (A. 1870, c. 175, p. 456), extended and made applicable to the whole State, including the city and county of New York.
    The power to grant licenses conferred by the act of 1870 (X. 1870, c. 175, p. 456), is not inconsistent with, and does not take away the power to grant ale and beer licenses given by the act of 1869 (X. 1869, c. 856, p. 3060).
    Even if the reference in the act of 1870 (X. 1870, c. 175, p. 456), to that of 1857 (X. 1857, c. 638, p. 405), did not include the amendment of 1869 (X. 1869, c. '856, p. 3060), yet as there is nothing which repeals that amendment, the act of 1870 should not be so construed as to exempt the district whose local law it repeals, from the provisions of the amendment.
    Application of William H. .Mundy for a warrant against Richard J. Morrison, Philip Merkle and George W. Morton.
    The defendants were the excise commissioners of the city of New York. The ground of the complaint against them was that they had granted licenses, for the sale of ale and beer to be drank on the premises of the seller, to persons who were not hotel keepers.
    
      William II. Mundy, for application.
    
      Memo Dieffendorf, opposed.
   Westbrook, J.

Application was made to me as a judge, whilst holding court in New York city, to issue a warrant against the above-named parties, who are excise commissioners of the said city of New York, upon a complaint charging them with having illegally and contrary to law granted to John Knell, of 95 Maiden Lane, in said city, “a license to sell ale and beer in quantities less that five gallons at a time, to be drank on the premises where sold, the said John Knell not being an inn, tavern or hotel keeper.”

The point upon which the charge depends is: Do the laws of this State permit the granting in the city of New York of an ale and beer license authorizing its sale to be drank on the premises, when the party selling is not licensed as a hotel keeper ? In other words, can the excise board of the city authorize ale or beer to be sold and drank on the premises of the seller without granting to him a hotel license ?

The complaint involves a pure question of law depending on the construction of statutes, which must be decided upon the laws as they are, without any regard to my own notion of what they ought to be.

By the act of 1857, as originally passed, entitled “An act to suppress intemperance and to regulate the sale of intoxicating liquors,” and the sixth section thereof, no such license could be granted.

By chapter 856 of the Laws of 1869, however, which both its title and provisions show, was amendatory of the act of 1857, and by section 4, it is provided : “ All the provisions of this act as amended shall be held to apply to the sale of ale or beer, except so much thereof as forbids the granting of license to any person, except to such persons as propose to keep an inn, tavern or hotel, and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer, for a sum not less than ten dollars, to other than those who propose to keep an inn, tavern or hotel, and the provisions of this act shall extend to all portions of the State, except the Metropolitan Police District.”

The reason of the exception of the Metropolitan Police District from the provisions of the act of 1869, was this : By chapter 578 of the Laws of 1866 a separate act existed therefor, excepting the county of Westchester, which authorized a license within such district ‘ ‘ to any person . or persons of good moral character, and who shall be approved by them, permitting him and them for one year from the time the same shall be granted, to sell and dispose of, at any one named place within said Metropolitan Police District, exclusive of the county of Westchester, strong and spirituous liquors, wines, ale and beer, in quantities less than five gallons at a time, upon receiving a license fee to be fixed in their discretion, and which shall not be less than thirty nor more than two hundred and fifty dollars.” That act allowed licenses to “ sell strong and spirituous liquors, wines, ales and beer in quantities less than five gallons at a time,” to be granted without the issuing of one to keep a hotel, to any person within the district to which such act referred (People v. Smith, 69 N. Y. 175, 179).

To return, however, from this digression to the act of 1857, and the amendments of 1869. By a well-known rule of law, the amendments made by the latter to the former became and wrere, from the'date of the enactment, parts of the original act, so that when the act of 1857 is thereafter referred to, unless there be some words used indicating the contrary, the act as amended is intended, as much so as when a reference is made to a physical object, which at the time of such reference is in a changed or altered form, the object as so changed or altered is thereby designated (Dexter & Limerick Plank Road Company v. Allen, 16 Barb. 15, 16, 17). This doctrine is well illustrated in the quaint language of an old case (Bayly v. Murin, 1 Ventr. 246 ; cited with approbation in Potter's Dwar. on Stat. 190): “ Because the 14 Eliz. is a kind of appendix to the 13th of Eliz. and does not repeal it, but sub modo a little enlarging it as to houses in market towns; wherefore the 18th of Eliz., reciting the 13th, does by consequence recite the 14th also.”

By section 6 of chapter 175 of the Laws of 1870, the separate act (chapter 578, Laws of 1866), in regard to the Metropolitan Police District was repealed, “ and the provisions of the act passed April sixteenth, eighteen hundred and fifty-seven; ” (i. e., the act entitled “An act to suppress intemperance and to regulate the sale of intoxicating liquors,” as it read in 1870, by force of the amendment made in 1869), “ except where the same are inconsistent or in conflict with the provisions of this act, shall be taken and construed as a part of this act, and be and remain in full force and effect throughout the whole of this State.”

That act now prevents, not only in the city of New York, but anywhere in the State, the granting of any license, except as part of one authorizing the keeper of an inn, tavern, or hotel, to “ sell strong or spirituous liquors or wines to be drank upon the premises,” because the provisions of the act of 1857 are still operative, “ except where the same are inconsistent or in conflict with the provisions” thereof; and the act of 1857, having expressly forbidden the granting of any such licenses except to hotel-keepers, the court of appeals in People v. Smith (69 N. Y. 175), decided that that provision of the act of 1857 was not inconsistent with the act of 1870, and was therefore, by the language of the act of 1870, to “be taken- and construed as a part thereof.”

There is no direct provision in the act of 1870, for the granting of 'ale or beer licenses as such, but authority is given “ to sell and dispose of . . strong and spirituous liquors, wines, ales and beer in quantities less than five gallons at a time.” This general license, however, as we have seen, the court of appeals have held could not be granted except to a hotel-keeper, because the restrictions placed upon the granting of licenses to sell “strong or spirituous liquors or wines to be drank upon the premises ’ ’ by the act of 1857, were not repealed, but were in full force. But the act of 1857 (as amended, for, in 1870, the amendments were a part of it) also provided for the granting of licenses “for the sale of ale or beer ... to other than those who propose to keep an inn, tavern or hotel,” and as that provision was not at all inconsistent with, the act of 1870, which, whilst it provided for a general license to sell all kinds of intoxicating drinks, to be granted, as held by the court of appeals, only in connection with a tavern or hotel license, did not abrogate and annul the power to grant ale or beer license only, it must now (for the act of 1870 so requires) “be taken and construed as a part” thereof, and be deemed to be “ in full force and effect throughout the whole of the State.” In other words, the power to grant a general license to sell intoxicating drinks, including ale and beer, conferred by the act of 1870, which can only be granted to a hotel-keeper, is not inconsistent with, and does not take away the power to grant an ale or beer license only, to a person, not a hotel-keeper, which the act of 1857, as amended in 1869, authorized, and therefore such provision of the act of 1857, because it is not inconsistent with said act of 1870, is by said act of 1870, made applicable to “ the whole of the State.”

The full argument, which has been for its proper understanding somewhat protracted, may be thus tersely stated: By the act of 1857, as amended in 1869, in addition to one permitting the sale of intoxicating drinks in small quantities, not to be drank, however, upon the premises of the seller, two kinds of licenses could be granted. First. A license to sell strong and spirituous liquors and wines, to be drank on the premises of the persons licensed, to be granted only, however, to persons who kept an inn, tavern or hotel; and, second, An ale or beer license “to others than those who propose to keep an inn, tavern or hotel.” This ale or beer license,. however, was engrafted in 1869 upon the act of 1857, and was not applicable to the Metropolitan Police District, for which a separate and distinct license law existed, passed in 1866, under which a general license to sell all kinds of intoxicating drinks could be issued, although the person licensed kept no inn, tavern or hotel. In 1870, however, another license law was passed, which repealed the local Metropolitan Police District Act, and made such act of 1870, and the act of 1857, as changed and amended in 1869, when not inconsistent with, the act of 1870, applicable to .the whole State. The act of 1870 did not profess to take away the power to grant a license for the sale of ale and beer only, nor was the right to grant a general license to sell all intoxicating drinks, including ale and beer, inconsistent with the special license allowed by the act of 1857, as amended in 1869, for the sale of ale and'beer only, and because not repealed or inconsistent with the act of 1870, such authority to grant ale and beer licenses only became from that time operative over the whole State, including, of course, the city and county of Hew- York, because said act of 1870 so expressly provides.

It follows, of course, that the defendants, in granting the license complained of, violated no law and were guilty of no offense, and that no warrant can issue to bring them before me to answer. It is their duty to execute the law as it is, and both they and judges are to interpret it as it reads, and neither are .responsible for provisions which may not meet their approval as citizens.

The foregoing opinion wa!s prepared to this point some days ago. Since its preparation, my attention has been drawn to a decision of a brother judge (Judge Barnard), which, as reported in the public press, holds that there is no power now to grant anywhere in the State, a license for the sale of ale and beer only, separate and apart from a hotel license. The sincere respect entertained for his learning and judgment, has induced me to review my conclusion hereinbefore expressed, but such review has not in the least shaken my conviction. After careful and further reflection, I am still constrained to hold that the act of 1870, when it declares, “ the provisions of the act passed April 16, 1857, except when the same are inconsistent or in conflict with the provisions of this act, shall be taken and considered as a part of this apt, and be and remain in full force and effect throughout the whole of this State,” refers to the act of 1857, as it read when such language was used, and not to it as originally enacted. The reference to the act is a general one, and there are no words limiting and controlling the reference. The amendments of 1869 were then part and parcel thereof, as much so as its original provisions. It is not the act as passed in 1857, which is made operative over the entire State, but “the act” of 1857, or “passed” in 1857, for either word—“of” or “passed”—in that connection has the same signification. If the act of 1870 had declared that the act of 1857 was thereby repealed, it seems to me clear that the entire law as it read in 1870, with all its amendments engrafted thereon, and then forming integral parts thereof, would have been abrogated ; and therefore, when the act of 1870 does not profess to repeal that of 1857, but re-enacts all the provisions of the latter not inconsistent with its own, and extends them over the entire State, that such enactment and extension apply not only to its original provisions, but to all others which had since become and then were substantial and vital portions thereof. It certainly, as it may be urged, would have been easy for the legislature, in speaking of the act of 1857, to have added the words “as amended,” and it would have been equally easy if the amendments were not also made applicable to the whole State, to have so declared in plain words. Neither, however, has been done, and the simple question then is, does a general reference to a statute, which, at the time of such reference is in an amended form, intend the statute as originally passed, or the statute as it reads at the time of such reference 1 This question can only admit of one answer, as shown in the former part of this opinion, and that must be, such a reference is to the act as amended.

There is also another answer to any assertion, if such has been made, that there is no authority now in boards of excise to grant an ale or beer license in any part of the State outside of the old Metropolitan Police District, and it is this : The question before me is, was the act of 1869, because amendatory of the act of 1857, expressly extended over the city of New York by the act of 1870 ? Unless this question can be answered in the affirmative the complaint against the Police Commissioners of the city of New York is well founded, for the act of 1869 excepted such city, as a part of the Metropolitan Police District, from its provisions. Suppose, however, I am wrong in the conclusion that the act of 1870, by extending the provisions of the act of 1857 over the whole State, thereby also necessarily extended the act of 1869, which was simply amendatory of that of 1857, over the same territory, when and where was the provision of such act of 1869, permitting the Commissioners of Excise to “ grant licenses for the sale of ale or beer ... to other than those who propose to keep an inn, tavern or hotel,” and which provision was declared to “ extend to all portions of the State except the Metropolitan Police District,” repealed % There certainly is no statute which directly repeals it, and as repeals by implication are not favored in the law, it must be shown that some later statute contains provisions necessarily inconsistent therewith, before a right so clearly and expressly conferred can be taken away. A careful search by me has failed to discover any subsequent enactment which is repugnant thereto. Plainly the act of 1870 is not inconsistent therewith, for that, as we have shown in the former part of the opinion, only confers the power to grant a general license for the sale of all intoxicating drinks to a hotel-keeper, and such general license is not inconsistent with the special one for the sale of' ale or beer only by an individual who is not a hotel-keeper. The two licenses are, of course, different, but difference and repugnance are not synonymous expressions. A power to do several acts under circumstances clearly prescribed, is not incompatible with, or repugnant to, an authority to do only one of those acts under a different condition of things, though the two grants are certainly unlike. This proposition is too clear to admit of discussion, and the question may therefore well be repeated, when and where was the authority given by the act of 1869, to grant an ale -or beer license anywhere in the State, except in the Metropolitan Police District, taken away ? If it has been, I have been unable to discover the repealing statute. Indeed it was plumply decided as early as December, 1874,. by the general term of the supreme court for the third department, held by Judges Bockes, Countryman and Landon (O’Rourke v. People, 3 Hun, 225), that the power to grant ale or beer licenses still existed. The opinions of Judges Bocees and Countryman in that case are so exhaustive as to leave nothing to be said, and are therefore referred to as conclusive upon the question at issue. How if, to make the argument applicable to the case before me, it be conceded, as it seems to me it must, that the power to grant such licenses anywhere in the State except in-the Metropolitan Police District exists, why should’the act of 1870 be so construed as to make that district an exception to the rest of the State % The act of 187.0 certainly repealed its local excise law, and intended to extend all the provisions regulating the sale of intoxicating drinks in the residue of the State over that locality. If it has not done so, it is because of a failure to express the plain purpose. Ho proper construction of the language used, as we have endeavored to show, makes such a conclusion necessary, and the evident propriety of so construing statutes as to work equally rather than unequally over the whole State, fortifies the argument already made to demonstrate that the act of 1870, in extending the provisions of that of 1857 over its entire territory, necessarily carried those of 1869, which had become a part of such act of 1857, with them.

To prevent any misapprehension as to the scope of the foregoing opinion, it should be added, that whilst in my judgment the parties complained of committed no crime in granting a license for the sale of ale or beer, that it is not held that any obligation to grant licenses of that character devolves upon boards of excise. No such question is involved in the proceeding before me, but as the act is very clear (section 4, chapter 856, of Laws of 1869), it may not be improper to say in its very words, that such licenses are “ in their discretion.” 
      
       1 L. 1857, p. 405, c. 628.
     
      
      
        L. 1866, p. 1242.
     
      
      
        L. 1869, p. 2060.
     
      
      
        L. 1870, p. 456.
     
      
       In People exrel. Dakin v. Byrne, N. Y. Court of Appeals, November, 1879, not reported, an alternative mandamus had been granted, by the court below, against the superintendent of police, to compel him to enforce the excise law, and compel the closing of liquor saloons on Sunday; and the return having denied the allegations of the writ, that the defendant intentionally permitted the violation of the law, an issue was formed and a special verdict found by a jury, to the effect that the defendant had failed and neglected to close and keep closed certain saloons during a specified period of time. Held, that it did not appear, from this verdict, that the failure so to do resulted from a design to allow the law to be systematically violated, and that therefore a peremptory mandamus should not be granted, but that a new trial should be had.
      
        It seems, that where a return to a writ of alternative mandamus alleges the performance of the duty, the neglect of which is charged in the writ, it is necessary for the relators to interpose a denial, or the facts alleged will be deemed admitted.
      This was a proceeding brought by George Dakin against John Byrne, as superintendent of police of the city of Buffalo, to obtain a peremptory mandamus requiring the defendant to close and keep closed the liquor saloons in that city on Sunday.
      An alternative mandamus was granted, to which a return was made denying all violation of duty. Thereupon the following issue was settled and directed to be tried by a jury.
      “Did John Byrne, superintendent of the city of Buffalo, fail and neglect, either himself personally, or to use the police force of the city of Buffalo under his command, to close and keep closed, on the several Sundays between January 1, 1876, and December 6, 1876, the following named saloons and places (naming them), licensed by the board of commissioners of excise of the city of Buffalo, to sell strong and spirituous liquors, wines, ale and beer, to him known to be in open violation of the provisions of the excise law ?”
      The jury answered the issue in the affirmative, and plaintiff then moved for judgment on the verdict, and the defendant moved for a new trial.
      Judge Daniels denied the motion for judgment, and granted a new trial, and his decision was affirmed by the general term.
      The court of appeals, on appeal from the general term, affirmed the order granting new trial, upon the following opinion of Daniels, J., at special term, and gave judgment absolute against plaintiff on the stipulation.
      All the judges concurred.
      Daniels, J.—The object of the relators in this action is to secure the enforcement of the excise laws of this State, against persons licensed under their provisions, by closing up their places of business 0 on Sunday. This duty has been in very plain terms devolved upon every sheriff, constable, policeman, and officer of police (L. 1873, c. 549, § 5, p. 859). The law has provided that “no inn, tavern, or hotel keeper, or other person, shall sell or give away any intoxicating liquors or wines on Sundayand a violation of this prohibition has been made a misdemeanor, punishable by fine and imprisonment {Id. § 21, p. 861). And it has been rendered the duty of every sheriff, under sheriff, deputy sheriff, constable, marshal, policeman, or officer of the police to arrest all persons engaged in the commission of that or any other offense created by the excise laws of the State (2 L. 1869, p. 2060, c. 856, § 16). The laws, therefore, have been sufficiently enacted, and clearly include all the authority required for their complete execution. No police office or officer of police is beyond their mandates, and no person violating their restraints has been made exempt from punishment.
      But in this case it was alleged that the respondent, as the superintendent of the police force of the city, had declined by himself and the force under his charge, to execute this law, and in substance that he intentionally allowed and permitted its violation. This he has denied by his answer to the writ of alternative mandamus which issued to secure the observance of the duty enjoined to keep these places closed upon Sunday. And by way of further supporting the denial made, he has directly asserted that he has instructed the police force under his direction and command, to perform their duty in all respects, and had not ordered or directed them in any other manner regarding the enforcement of the provisions of the excise laws, and the laws relating to the observance of the Sunday, or the arrest of offenders against the same, than in regard to the enforcement of all other laws and all other classes of offenders against law. He therefore not only denied the charges made against him, but alleged, in direct terms, that lie. had performed the duties enjoined upon him. And to that no plea or denial was interposed, as it seems there should have been, on the part of the relators (5 Wait Pr. 589; Bvpreme Gt. Bules, 46). The failure to take issue upon that statement would appear to have the effect of making the facts so stated controlling evidence in the case. And if that be so, no judgment can be rendered in favor of the plaintiff, so long as these facts must be regarded as admitted.
      But without deciding definitely whether that be so or not, the case stands in such a form upon the verdict of the jury, as to deprive the relators of their right to a peremptory writ of mandamus. This renders a determination of the other position needless at the present time. No general verdict has been rendered determining the entire controverted dispute in the relator’s favor. But the jury have confined their decision to a specific answer, given to one inquiry. And by that they have merely found that the respondent, between January 1 and December 6, 1876, failed and neglected to close and keep closed, upon the several Sundays included between those dates, twenty-nine different places, licensed to sell strong and spirituous liquors, ale, wine and beer, which were to him known to be in open violation of the excise laws. This was all that was found from the evidence by the verdict of the jury. And consequently it is the only violation of duty established in the case. It falls entirely short of finding the essential fact that the respondent designed to allow the excise laws to be violated by intentionally permitting persons licensed under their provisions, to keep their places open for the sale of intoxicating liquors, ales and wines upon Sunday; and simply deals with past events, of such a nature as are clearly beyond the corrective power of official authority. The court has no power, in its judgment, to exceed the facts found to have existed by the verdict. It may do less, but in a case of this description it clearly cannot transcend what has been found to be the truth concerning the facts.
      By the verdict the respondent has been merely found to have failed and neglected to close aud keep closed those t*enty-nine places, between January 1 and December 6, 1876. And that is all that has been found against him. The court cannot, by means of the .writ of mandamus, or any other process under its control, direct him now to perform that neglected duty. The period for its performance has passed by effluxion of time, and no earthly power can recall it. A writ directing him to do that would be useless, as it would be absurd. And as no other failure in the discharge of his duties, and no purpose to evade or avoid the laws, has been established in the case, there is nothing to be done which a court of justice can consistently or profitably perform. Until something has been established, showing that the law is not designed or intended to be enforced, a court of justice cannot interpose its authority. What is required by the application for judgment on the verdict, is that the court shall command the respondent, by means of the wi;it of mandamus, to close and keep closed on Sunday all places licensed under the authority of the excise laws, without the fact being first established that he is, or has been indisposed to perform the duty.
      The existence of that fact cannot be inferred from the other which' has been found, for it was not declared that he failed to close the places mentioned pursuant to any general or fixed purpose to allow the law to be violated. The simple fact alone shown is that he failed to close those particularly designated places. Why he failed in that duty was left entirely without explanation. It was the province of the jury to have found aud declared that this resulted, if such appeared to be the fact, from a design to allow the law to be systematically violated. But that they have not done, and because of that omission no case exists for the issuing of a peremptory writ of mandamus against the respondent. The writ can issue only for the purpose of securing the performance of what should still be lawfully done. And it must affirmatively appear that that the act is within the power of the party to be set in motion. Where the respondent is not shown to have it in his power to perform the duty required, the writ will be refused as vain and fruitless (People v. Commissioners of Port Edward, 11 How. Pr. 89, 90). No act whatever of a future character is within the verdict in this case, but it deals entirely with what has been already and fully accomplished. A “ mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be, that the persons whom it is sought to coerce by the writ will refuse to perform their duty whe1" the proper time arises.” “ And whenever it is apparent to the court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court is invoked, or for other sufficient causes, so that the granting of the writ must necessarily be fruitless, the court will refuse to interfere ” (High on Ex. Remedies, §§ 12, 14, and cases noted). To support the application for judgment it should be made to appear, in some form by the verdict, that the respondent had a fixed design to allow the law, through his neglect of duty, to be violated or evaded. And the case contains nothing from which that fact can be deduced, He may have allowed the specific violations, intending nothing beyond that. That he did intend anything more than that has not been made to appear. And for that reason there is no foundation presented for a judgment awarding the writ of peremptory mandamus.
      The case made by the alternative writ has not been determined in this respect. As it stands now it can be of no real service to the relators. And for the reasons already assigned concerning the insufficiency of the verdict, and the effect probably attributable to ,the affirmative answer of the respondent, the motion for a new trial should be allowed to prevail. The case will be disposed of, therefore, by an order denying the plaintiff’s motion for judgment, and directing a new trial on the defendant’s motion, with costs to abide the final determination of the action.
     