
    Board of Comm’rs of Excise of the City of Auburn v. Garden F. Merchant.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    1. Excise laws-violation of—Proper parties to sue for penalties.
    The board of commissioners of excise are the proper parties to sue for a violation of the excise laws in the city of Auburn. Board of Commissioners of Excise v. Burtis (ante, 758), followed.
    2. Same—Evidence—Laws 1857, chap. 628, § 12.
    By statute authorizing the issuing to storekeepers and shopkeepers of licenses to sell liquor in quantities less than five gallons, not to be drunk upon the premises, proof of the drinking of liquor on the premises is made prima facie evidence of sale with that intent.
    3. Same—Jury—instruction to.
    Where the proof tending to show that liquor was drunk on the defendant’s premises extends over a period greater than that covered by the defendant’s license, instructions to the jury that such drinking was prima facie evidence of a sale in contravention of the provisions of the statute,/ are not erroneous, there being-no specific evidence that any of the drinking took place in the time during which the defendant held no license.
    4. Evidence—constitutionality of Act regulating- the rules of— Laws 1857, chap. 628, § 12.
    A statute provision that proof of the drinking of liquor upon the premises of parties holding licenses allowing the sale of liquor not to be drunk upon the premises, shall be prima facie evidence that it was sold with the intent that it should be drunk upon the premises, is constitutional.
    Appeal from judgment general term, fifth department, affirming judgment for plaintiff entered upon verdict at Cayuga circuit, and denying motion for new trial.
    
      N. C. Moak, for app’lt; F. D. Wright, for resp’t. ,
    
      
       Affirming, 34 Hun, 19.
    
   Earl, J.

The main question to be determined in this case is whether this action should have been commenced by the present plaintiff, or by the board of charities and police for the city of Auburn, and upon this question our views have been sufficiently expressed in the case .just decided against Burtis, and we refer to the opinion pronounced in that case. Board Comm’rs of Excise, etc., v. Burtis, ante, 755.

Upon the trial of this action the judge .charged the jury that “the law provides, in such case as this, that upon proof being made of the fact that liquor was seen to be-drunk on the premises, that is prima facie evidence that it was sold with intent that it was to be drank upon the premises.” To this portion of the charge defendant’s counsel excepted, and the exception is now relied upon as pointing out error fatal to the judgment.

In section 11 of the excise act (chapter 628, Laws 1857), provision is made for licenses to storekeepers and shopkeepers, authorizing them to sell spirituous liquors in quantities less than five gallons not to he drank upon the premises. Then, in section 12, it is provided as follows : “Such license shall not be granted unless the commissioners are satisfied that the applicant is of good moral character, nor until such applicant shall have executed a bond to the people of this state * * * 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, or in any outhouse, yard, or garden appertaining thereto, and that he will not suffer any such liquor, sold by virtue of such license, to be drank in his shop or house, or in any outhouse, yard, or garden belonging thereto; and, whenever any person is seen to drink in such shop or house, outhouse, yard, or garden belonging thereto, any spirituous, liquors or wines forbidden to be drank therein, it shall be prima facie evidence that such spirituous liquors or wines were sold by the occupant of such premises, or his agent, with the intent that the same should be drank therein. On any trial for the offense last aforesaid, such occupant or agent may be allowed to testify respecting such sale.” It. was, undoubtedly, this law to which the judge referred in his charge.

All the provisions in section 12 have reference to license-to sell liquors in quantities less than five gallons not to be drank upon the premises, and the rule of evidence prescribed applies only to cases where such licenses have been granted. The defendant had such a license from September 6, 1880, to May 1, 1881, when it was revoked. Upon the trial the plaintiff gave evidence tending to show violations-of the license by the defendant by the sale of liquor to be-drank upon his premises between September 1, 1880, and June, 1881, and the proof of sales was limited to that period. The charge of the judge was authorized by the statute, if applied to drinking liquor upon defendant’s premises during the time he had the license. But it was not authorized if applied to the drinking of liquor there before September 6th, or after May 1st. There was no specific, definite evidence that any of the drinking took place before the first or after the latter date; and, if the defendant desired to-have the charge so qualified as to apply only to drinking which took place, while the license was in force, he should have called the attention of the judge to the facts, and Rave requested the quahfication; and now the charge must Re treated as if it applied only to the period covered by defendant’s license.

Thus the charge was authorized by the words of the statute. But the learned counsel for the appellant claims that this provision of the statute is unconstitutional on the ground that it violates the constitutional guaranties of due process of law and trial by jury We think the claim unfounded. The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted While the power has its constitutional limitations, it is not easy to define precisely what they are. A law which would practically shut out the evidence of a party, and thus deny him the opportunity for a trial, would substantially deprive him of due process of law. It would not be possible to uphold a law which made an act prima facie evidence of crime, over which the party charged had no control, and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act, and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense, and to submit all the facts to the jury to be weighed by them upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds. Affidavits in town-bounding acts and tax deeds have been declared to be prima /acfirbvidence of regularity and validity, and numerous statutes of similar •character are to be found in this and other states. In Com. v. Williams (6 Gray, 1), it was held, in a criminal prosecution for a violation of an excise law, that a statute which provided that the delivery of any spirituous and intoxicating liquors in or from any building or place other than a -dwelling-house, “ shall be deemed prima facie evidence of a sale,” was constitutional and vand. In State v. Hurley (54 Me., 562), it was held that an act which provided that “whenever an unlawful sale of intoxicating liquor is alleged, and a delivery proved, it shall not be necessary to prove payment, but such delivery shall be sufficient evidence of sale,” was constitutional. In Howard v. Moot (64 N. Y., 262), Allen, J., said: “The rules of evidence are not an exception to the doctrine that all rules and regulations affecting remedies are at all times subject to modification and control by the legislature. * * * It ■ may be conceded for all the purposes of this appeal, that a law that should make evidence conclusive which was not so necessa.rily in and of itself, and thus precluded the adverse party from showing the truth, would be void, as indirectly working a confiscation of property, or a destruction of vested rights. But such is not the effect of declaring any circumstance, or any evidence, however slight, prima facie proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence.”

Here the act which is made prima facie evidence of an illegal sale takes place upon the premises of the person charged, has some relation to and furnishes some evidence •of the alleged illegal sale, and occurs in a place where liquors are authorized to be kept and sold. To make drinking the liquor in such a place and under such circumstances prima facie evidence of an illegal sale to the person drinking, violates no constitutional guaranty. It leaves a party ample opportunity to make his defense. It is specially provided, what is now the general law, that the party can be a witness in his own behalf, and thus it can never be difficult for him to show what the facts really are. The burden of proof is not even really changed. The statute enables the prosecutor to make a prima facie case by proof of the drinking. But the defendant can show the circumstances attending the drinking, his relations thereto, and any other facts tending to absolve him from liability, and then, on the whole case, the burden still rests upon the prosecution to establish the alleged sale. The defendant has the full benefit of jury trial and due process of law, and a full and fair opportunity free from any undue hindrance or embarassment to make his justification and defense. Hence the charge resting upon the statute was not erroneous.

■ But the statute need not be invoked to uphold the charge. Under the circumstances of this case the drinking was good common-law evidence of a sale in violation of the statute. •The defendant kept liquor for sale, and was shown to be engaged in selling it to be drank upon his premises quite indiscriminately to persons calling for it. It is against all experience that he gave it away, or that persons came there to drink liquors'bought elsewhere. It was in his power to prevent the drinking, which took place- from glasses presumably furnished by him. Evidence of the drinking under such circumstances was certainly prima facie proof that the liquor was bought to be drank there, and sufficient to justify the charge.

We are thefore of opinion that the judgment should be affirmed, with costs.

. All concur, except Miller, J., absent.  