
    MICHAEL O’ROURKE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    
      Excise Laws—chap. 628, Laws of 1857 ; chap. 856, Laws of 1869, and chap. 175, Lancs of 1870 — Sti'ong liquors — licenses for sale of— ale and heer.
    
    Under the provisions of the Excise Laws of this State, licenses to sell strong and spirituous liquors and wines (except ale and heer), to be drank on the premises of the licensee, can only be granted to an inn, tavern or hotel keeper.
    Licenses for the sale of ale and beer may be granted by the board of excise, in its discretion, to any person applying for the same, and no restriction is imposed by the law, as to the place where such liquors are to be drank.
    Upon the application of the plaintiff in error, who was not the keeper of an inn, tavern or hotel, the board of excise granted a license, authorizing him to “ sell and dispose of strong and spirituous liquors, and wines, ale and beer, in quantities less than five gallons,” at his saloon. The license did not, in terms, either authorize or forbid the drinking of the liquors on the premises. Held, that' although so much of the license as attempted to authorize the sale of intoxicating liquors (except ale and beer) was inoperative and void, yet it was valid as a license to sell ale and beer, and that such liquors might be drank on the premises.
    It is not necessary that the statute should, in express terms, declare the unauthorized sale of intoxicating drinks a misdemeanor; it is sufficient that the act charged in the indictment is declared to he an offense, and is made penal.
    The interpretation which renders a statute in operative cannot be admitted. It is an absurdity to suppose that after it is reduced to terms it means nothing.
    
      ' Writ of error to the Court of General Sessions of the county of Saratoga, to review the conviction of the plaintiff in error of the offense of selling intoxicating liquors without a license.
    
      P. H. Oowen, for the plaintiff in error.
    
      E. W. Paige, for the defendants in error.
   Bookes, P. J.:

The plaintiff in error,' O’Rourke, was indicted for unlawfully selling strong and spirituous liquors,, wines, ale and beer, in quantities less than five gallons, by retail, to be drank in his house. The proof was that he kept a saloon, and sold ale on draught to be drank on the premises. He was convicted on the indictment, and was sentenced by the court to pay a fine of fifty dollars, and to stand committed until the fine was paid. Thereupon he sued out a writ of error to this court.

By way of justification and defense, the plaintiff in error offered in evidence a license granted to him by the board of commissioners of excise in and for the village in which he conducted his business of saloon keeping, covering the time laid in the indictment for the commission of the offense, to wit: February, 1874; by which license he was authorized “ to sell and dispose of strong and spiritous liquors, wine, ale and leer, in quantities less than five gallons,” at his saloon. The license did not, in terms, allow the drinking of the liquors, wine,- ale and beer on the premises; nor did it declare that such license should not be deemed to authorize the same to be drank in the house.” The court held that such license afforded no justification or protection to the defendant, and excluded the evidence. The question is, therefore, whether this ruling was correct in law.

The examination of this case involves the construction of three legislative acts, now constituting the excise system of the State. The first was adopted in 1857; the second, amendatory thereof, passed in 1869; the third, after making some general provisions, adopted the act of 1857, in so far as its provisions were not inconsistent nor in conflict therewith. These three acts must be considered as one consolidated act, and all their provisions must be made to harmonize, so far as may be, in order to carry out the purpose the'legislature had in view in their enactment.

It may be well, first, to note the provisions of the Law of 1857, before it was amended by the act of 1869. The Law of 1857, as originally passed, provided for two kinds of licenses, one to be granted to keepers of inns, taverns or hotels; the other to persons denominated store-keepers.” The former were to be allowed to sell intoxicating drinks in quantities less than five gallons, to be drank on the premises. The latter were to be allowed to sell by small measure also, but not to be drank in the shop, house, outhouse, yard, or garden of the licensee. To these two classes of persons, and to none other, could licenses be granted under the original law. Then came the amendatory act of 1869, which in no way affected the subject as to inn, tavern, or hotel keepers, but authorized the licensing of persons, in the discretion of the commissioners of excise, to sell “ ale or beer,” without, however, making an expression on the subject whether such beverages might or might not be drank on the premises of the licensee. This section reads as follows: “ 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 licenses 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.” This amendment, as will be observed, provided for the licensing of a third class of persons; and thereafter, there were three classes of persons to whom licenses might be granted, to wit: inn, tavern, or hotel keepers, store-keepers, and such others as might be especially licensed to sell “ ale or beer.” Then came the act of 1870, which restated in general terms to whom licenses might thereafter be granted, and adopted the act of 1857 (as amended of course), wherein were prescribed the qualifications and restrictions attached to the power of the board, as to the granting of licenses; and also as to the right of sale by licensees. The act of 1870 omitted store-Jceepers, under that designation, but authorized the licensing of “ any person or persons” of good moral character, who should apply in due form, and be approved of by the board.

We must now recur to the provisions of the act of 1857, in order to determine the restrictions which attached to the authority of the board of excise to license; or, in other words, what rights of sale the board had the power by law to confer on licensees.

1st. As regards inn, tavern or hotel keepers, there is no question here raised. They might be licensed to sell intoxicating drinks by small measure to be drank on the premises, subject to certain conditions and restrictions particularly specified in the act. But, as above stated, no question is here raised affecting the rights of persons licensed to keep inns, taverns and hotels.

2d. So, too, the board of excise could grant license to any person or persons, in their discretion, to sell by small measure, but not to be drank on the premises of the licensee.

The qualifications of this class of licensees are declared in the act of 1870; and the fee for license to them should not be less than thirty, nor more than one hundred and fifty dollars. Under such license the licensee would be authorized to sell ale and beer, because within the signification of strong liquors, Besides, ale and beer are specifically designated in the act. The condition or limitation which the law attaches to this class, is, that the licensees shall not be allowed to sell, to be drank on the premises.. This restriction is imposed by the provisions of the Law of 1857. It is claimed (but as I think, without basis of support), that such restriction does not exist since the passage of the act of 1870; that no such limitation is declared in that act; and that the provisions of restriction contained in the Law of 1857, are in conflict therewith. The question then arises, are the provisions of the Law of 1857, which prohibit the granting of licenses for the sale of intoxicating drinks by small measure, to be drank on the premises, to others than inn, tavern, and hotel r keepers, and to persons especially licensed to sell ale and beer . only, in conflict or inconsistent with the general provision in ■ the Law of 1870? Let us consider this subject by bringing the two provisions together. The Law of 1870 provides that the board of excise “shall have power to grant licenses to any person or persons * * * permitting him and them to sell and dispose of, at any one named place * * * strong and spirituous liquors, wines, ale and beer in quantities less than five gallons at a time,” etc. This act also provides that the provisions of the act of 1857 shall remain in force, and be taken and construed as part thereof, except in so far as the same are inconsistent or in conflict therewith. The act of 1857 declares that licenses shall not be granted to any person to sell strong and spirituous liquors, to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel, (The purport and effect of the amendatory act of 1869, as to ale and beer, will be hereafter separately considered.) blow, are these provisions of law, above cited, inconsistent or in conflict, to an extent that both cannot stand and have effect ? It has been deemed a wise policy during a long period in the history of our State, to prevent the sale of intoxicating drinks on the premises where sold, except under circumstances of restraint; hence two kinds of licenses were provided for: one of which, while it allowed a sale in quantities less than five gallons, yet did not allow it to be drank on the premises. This was deemed to be, and doubtless was, wholesome in its results; as then no encouragement was given t-y the congregating of dissipated and idle persons at the place of sale. The result was attained by a special provision in the law qualifying the general provision; and such qualifying provision was never supposed to be inoperative for repugnancy. The act of 1857, like all, or nearly all, preceding excise laws, recognized this policy. It authorized the licensing of inn, tavern, and hotel keepers, to sell strong and spirituous liquors to be drank on the premises of the licensee, and it also provided for the licensing of store-keepers,” who were authorized to sell in quantities less than five gallons, but not to be drank in their shops, houses, out-houses, yards or gardens. Then came the act of 1870, with the provision above cited, which extended the right of license to others besides store-keepers, to wit: “ To any person or persons * * * permitting him and them to sell and dispose of, at any one named place * * * strong and spirituous liquors, wines, ale and beer, in quantities less than five gallons at a time.” This provision does not abrogate the section of the act of 1857, which declares that licenses shall not be granted to others than inn, tavern and hotel keepers, to sell strong and spirituous liquors to be drank on the premises. These provisions are to be read and construed together. The section of the act of 1857 having been adopted by express terms into the act of 1870, qualifies and limits the provisions of the latter act, in so far as that act gives the right to the board to license persons, other than inn, tavern, and hotel keepers, to sell intoxicating drinks. It is often the case that one section or provision of a law operates as a qualification and restriction of another ; then the law remains in force as qualified and restricted. Thus the Law of 1857 prohibits the granting of licenses to persons, other than inn, tavern or hotel keepers, to sell in small measure to be drank on the premises of the licensee. The act of 1870 adopts this prohibition, and declares it operative. The Law of 1857 authorized the licensing of storekeepers, giving them also permission to sell by small measure; and the Law of 1870 extended this right to any person, leaving however the general provision in the act of 1857, in force, which prohibited all persons, except inn, tavern and hotel keepers, from selling by small measure to be drank on the premises of licensees. Thus read together, there is no conflict or inconsistency in these provisions ; and thus construed, they harmonize, and effect is given to the evident intent of the legislature.

It would seem that the Law of 1870 superseded the provision in the act of 1857, which authorized the licensing. of store-heepers by that designation: for, by the Law of 1870, permission is given to the board of excise to license arvy person or persons to sell intoxicating drinks -by small measure, in its discretion. In this law the right to license is not restricted to store-keepers, but extends to any person in the discretion of the board, and of course would embrace the former. Thus any person may be authorized* by license, in the discretion of the board, to sell by small measure; not however to be.drank on the premises, for, by another provision, none but inn,, tavern and hotel keepers could be licensed to do that. This prohibition remains in force unless repealed by implication. A repeal of a law by implication is never allowed, except from necessity: as when the two cannot stand together, the former is deemed to be repealed by the latter. Such is not this case. Kor is it reasonable to suppose that such result was intended; for if the restriction be repealed in this case, all restraint upon the licensing power to be exercised by boards of excise, is abrogated as regards the place where intoxicating drinks authorized by them to be sold, shall be drank ; and then, under a license granted in pursuance of section 4, of the act of 1870, the licensee might sell all kinds of intoxicating drinks by small measure, to be drank on his premises, with impunity. Such is not, in my judgment, the condition of the laws of this State. When read and construed as one legislative act, the Law of 1857 and of 1870 are harmonious in this: That inn, tavern and hotel keepers ■ may be licensed to sell intoxicating drinks by small measure, to be drank on the premises; and any person or persons may also be licensed to sell by small measure, not to be drank on the premises. Against the licensing of any person or persons (except innkeepers) to sell intoxicating drinks by small measure to be drank on the premises, there is a general and complete prohibition. It.is as follows: Licenses shall not be granted to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel.” This provision is not repealed by express terms; nor is it abrogated by necessary implication. It therefore stands in full force as the law of this State. The construction above given harmonizes the various provisions of the Law of 1857 and of 1870, secures wholesome police regulations, and sustains the general moral purpose sought to be attained by a useful and sound system of excise, applicable to the promiscuous sale of intoxicating drinks.

Particular note has not been above taken of the Law of 1869, which will now receive attention.

3d. There is also another class of licensees : persons who may be ’ licensed to sell “ ale or beer ” under the Law of 1869, amendatory of the act of 1857. For license to sell such beverage only, the fee is in the discretion of the board, not however to be less than ten dollars. Can this class of licensees sell such beverages by small measure to be drank on the premises % The law does not give this right in express terms, but I am inclined to the opinion that it gives such right hy fair, if not by necessary implication. The law reads as follows : “ 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.” Now this law qualifies every section of the act of 1857, which, by express terms or by implication, forbids the granting of licenses to persons to sell ale or beer. Therefore, in every such section, there must be understood to be an exception, which will give this amendatory law due effect. Let us then insert such exception accordingly, and see then what the law is, as applicable to the power of the board of excise to grant licenses to sell ale and beer.

The first section which bears on this subject, in the act of 1857, is section 6. Insert the necessary exception, and this section will read as follows: Licenses shall not be granted to any person to sell strong and spirituous liquors and wines, except ale or beer, to be drank on the premises of the persons licensed,” etc.; and close the section with an express power to grant licenses to sell ale or beer to any person, in the discretion of the board. The next section requiring an exception, is section 11. With the exception inserted, it will read as follows: In all' licenses that may be 8 granted to sell strong or spirituous liquors or wines, in quantities less than five gallons (except to inn, tavern or hotel keepers, and except also to persons to sell ale or beer), there shall be inserted an express declaration, that such license shall not be deemed to authorize the sale of any strong or spirituous liquors or wine, to be drank in the house or shop of the person receiving such license, or in any out-house, yard or garden appertaining thereto, or connected therewith. With the proper exceptions inserted in the next section requiring it, being section 14, it will read thus: “ Whoever shall sell any strong or spirituous liquors or wines, except ale or beer, to be drank in his house or shop, * * * without having obtained a license therefor as an inn, tavern or hotel keeper, shall forfeit fifty dollars for each offense.”

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 provisión of law which renders the selling thereof without license, penal. Section 13 declares that whoever shall sell apy 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 hoard 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 ease at bar, no justification was offered for the sale proved against the plaintiff in error under an innkeeper’s license. He was not an ifinkeeper, nor did he attempt to justify the sale as such. Eor 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 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

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' 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. It 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 purpose, and then specially provided as follows: “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 * * * to others than those who propose to keep an inn, tavern or hotel.” Notwithstanding the language of the. first clause in the sentence, taken alone, may seem to fail in giving full expression to the idea meant to be conveyed, the intention of the legislature is quite apparent when the entire section is read in connection with the various provisions to which it relates in the act of 1857. As the statutes are in pari materia, it is the duty of the court, in order to ascertain their meaning, to read and construe them together as one act. Thus read, there is no need of interpretation ; -the provisions are clear and consistent, and the sense is manifest. If we incorporate the two acts together, and read the original statute as amended, it will be as follows:'• “License should not be granted to any person to sell strong and spirituous liquors and wines (except ale and beer), to be drank on the premises of the person licensed, unless such person proposes 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 * * * to others than those who propose to keep an inn, tavern or hotel ”).

But if the act of 1869 be regarded as equivocal or ambiguous, it is incumbent on the court, in searching for its proper interpretation, to refer to the state of the law upon the matter involved prior to its enactment; to consider the purpose .or object had in view in its adoption; and, if possible, to give it some practical effect. The interpretation which renders a statute inoperative cannot be admitted; it is an absurdity to suppose that after it is reduced to terms it means nothing.” This, however, is the necessary result of the construction adopted in the court below. As before remarked, the board of excise had full power under the act of. 1857 to grant, licenses to all persons, in their discretion, to sell liquors, including ale and beer, for any other purpose than to be drank on their premises; and unless the amendment of 1869 gave the right to sell ale and beer to be drank on the premises of the vendor, the sole object of the provision is frustrated, and the entire section is a nullity.

It is urged, however, that the amendment does not in terms confer the power to grant a license to sell ale and beer to others than hotel keepers, to be drank on their premises, and under sections 11, 12 and 14, of the original act, no such license could be granted; and it ife insisted that the letter of the new act may therefore be obeyed by granting license to sell ale and beer by the measure, and not as a beverage. Aside from the objection already noticed, that this construction would render the amendment wholly inoperative, it is a perfect answer that no affirmative leave or assertion of the right to sell by the drink, either in the statute or the license, was necessary. Prior to the act of 1869, a license to any other person than a hotel keeper, tó sell ale and beer to be drank on the premises, would have been void, because section 2 of the statute, in terms, limited the power to grant a license to such person to sell, “in quantities less than five gallons, but not to be drank in the house or shop ” of the licensee; and section 6 also expressly prohibited the granting such a license, “unless the person proposed to keep a hotel.” It was necessary, in order to prevent the liquor from being drank on the premises of the vendor after the sale, to limit in terms the rights of the parties by an affirmative declaration ,to that effect. But in the absence of any limitation or prohibition, a mere license to sell confers the right to drink or use the liquor on the premises, or at any place where the parties have a right to be. When, therefore, the amendment of 1869 removed the prohibition in regard to the sale of ale and beer, a mere license to sell those liquors ipso facto carried the right to allow it to be drank or used on the premises, in any manner agreeable to the parties in interest. But power was given by the amendment to grant a license which conferred on the licensee the right to sell ale and beer to be drank on his premises. This was the obvious intention of the act, as the entire section is devoted to the removal of the old prohibition against granting licenses to sell ale and beer to others than hotel keepers to be drank on their premises, and to the express affirmation of the power to issue such licenses, in the discretion of the board, to all other persons. It excepts in terms from any application to the sale of ale and beer as a beverage, so much of the prohibition contained in section 6, of the original statute, as forbids the granting a license to any person but the keeper of a hotel, and explicitly confers the identical power which had previously been prohibited, to wit: the right to grant such a license to all other persons. The prohibition removed, the power conferred to grant such a license, and a license issued in pursuance of the power, the conclusion is obvious that the sale could no longer constitute a criminal offense.

There is no difficulty in adjusting any apparent incongruity „ between sections 11, 12 and 14 of the act of 1857 and the amendment of 1869, as the special license to sell ale and beer given in the latter act, must be regarded as an additional exception to the provisions' of the former. But if the two statutes were inconsistent and irreconcilable, the former would yield to the latter as the latest expression of the legislative will; and all portions of the original statute which were repugnant to the new act, would be regarded as repealed. • It follows that full power was conferred by the amendment of 1869 upon the board of excise to grant the plaintiff a license to sell ale and beer to be drank in his saloon, and that the license offered in evidence on its face was valid, and a legal defense to the indictment. It is hardly necessary to add that the license would have afforded „no protection to the plaintiff for the sale of any other liquors than ale or beer to be drank on his premises. Indeed, prior to 1870, it would have been necessary to have obtained a special license to sell ale and beer, to have secured protection under the amendment of 1869, but since the act of 1870, the leave to sell ale and beer to be drank on the premises, may be included in the general license. There is no force in the objection that the license was unauthorized because there was no petition of freeholders, or compliance with the other requirements of section 6 of the act of 1857, in relation to hotel licenses; as they have no application to licenses of this character, although those provisions are doubtless still in force, and must be observed in all cases where the applicant for a license proposes to keep an inn, tavern or hotel.” It does not appear whether the plaintiff complied with all the provisions of the statute applicable to this case, and no question of this kind was raised on the trial. The evidence was rejected, and the case decided, on the broad ground that the license on its face was invalid and conferred no right on the plaintiff to sell ale and heer to be drank in his saloon. As this ruling was erroneous, the conviction and judgment must be reversed, and a new trial granted.

Present — Bocees, P. J., Landón and Countryman, JJ.

Judgment and conviction reversed, and new trial granted. 
      
       Sec. 11, act of 1857.
     
      
       Sess. Laws 1857, chap. 628.
     
      
      
         Sess. Laws 1869, chap. 856.
     
      
       Sess. Laws 1870, chap. 175.
     
      
       Section 2.
     
      
       Act of 1857.
     
      
       Commissioners v. Taylor, 21 N. Y., 173.
     
      
      
         Section 6.
     
      
      
         Section 6.
     
      
      
         Section 2.
     
      
       Section 2.
     
      
       Spratt v. Huntington, 48 How., 97,101.
     
      
       See last clause of section 4 of act of 1869.
     
      
       Bollan 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.
     
      
       Sec. 12.
     
      
       Sec. 14.
     
      
       Commissioners of Excise v. Taylor, 21 N. Y., 173.
     
      
       Behan v. The People, 17 N. Y., 530; Morris v. The People, 2 Thomp. & Cook, 319.
     
      
       Laws of 1869, chapter 856.
     
      
       Section 4.
     
      
       Potter’s Dwarris on Statutes, 128.
     
      
       Laws of 1870, chap. 175.
     