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The Pamphlet Collection of Sir Robert Stout: Volume 36

The Liquor Laws of New York, — In Force July, 1875

The Liquor Laws of New York,

In Force July, 1875.

Tt is the design of this tract to present a faithful summary of existing Excise laws with the various rulings and decisions of courts, so that all may understand how far the liquor traffic is subject to legal restraint and just suppression, and what measures and protection from intemperance are practically within the people's reach.

The present statute for "suppressing intemperance, and regulating the sale of intoxicating liquors" (with one or two unimportant additions, and a few special provisions for the cities of New York and Brooklyn, which are not here considered), is comprised in five different acts of the Legislature, to wit: Chapter 628, act of 1857; Chapter 856. act of 1869; Chapter 175, act of 1870; Chapter 549, act of 1873; Chapter 820, act of 1873; Chapter 444, act of 1874; and Civil Damage Law, act of 1873.

The character and intent of our Excise system will be gathered from the nine following particulars:
1.It proffers to the people "local prohibition," indirect, hut sure.
2.Where majorities will have drinking-houses, the law authorizes and licences them., but imposes so many restraints and hazards on the business that scarcely any man will ask for license who means intelligently to obey the law, or expects that his neighbors will honesty enforce it.
3.The law has annihilating penalties against unlicensed selling.
4.Makes Excise boards, magistrates, policemen, etc., punishable for official neglect.
5.Imposes line, imprisonment, and loss of license for Sunday dram-selling.
6.Inflicts penalties for offences.
7.Has a plain and sweepingly just civil damage section.
8.Severe punishment for the sale of adulterated liquors.
9.It opens the different courts to complainants, and entitles "any person" to make sure the prosecution of offenders.

Let us see how plainly all this can be made to appear.

page 2

Who are Excise Commissioners?

1.In towns three Commissioners of Excise are elected, in same manner as other town officers are elected, who hold their offices for three years respectively.
2.In cities, three commissioners, appointed by the mayor in some cases, and by the mayor and common council in other cases, constitute the licensing power. There is some ambiguity in the law respecting the appointment of a city Excise, which need not here be argued. (See Sections 2 and 3, act of 1870.)
3.Town and village boards meet for official business the first Monday of May, and on other days as they may direct, not exceeding one in each month.

Note.—Every license is for one year—no more, no less; and such "license is a personal trust, that cannot be sold or assigned to another," 14 Johnson, 231.

Powers of Excise Boards.

Section 4, act of 1870, amended by the act of May, 1873, enacts as follows:

"The Board of Excise in cities, towns, and villages shall have power to grant license to any person of good moral character who shall be approved by them, permitting him to sell at any one place in such city, town, or village strong and spirituous liquors, wines, ale, and beer, in quantities less than five gallons at a time, upon receiving a license lee, to be fixed, in their discretion, at not less than $30 nor more than $150 in any town or village, and not less than $30 nor more than $250 in any city. Such licenses shall only be granted on written application to the board, signed by the applicant, specifying the place for which license is asked, and the names of every person interested or to be interested in the business to authorize which such license shall be used. And the license shall be kept posted in a conspicuous position in the room where sales are made, and shall be exhibited at all times by the person so licensed. If certificate of license be not displayed and exhibited, it shall be presumptive evidence that the person is not licensed.

"Persons not licensed may sell strong and spirituous liquors, not to be drunk on their premises, in quantities not less than five gallons."

The powers of Excise boards are enlarged in the amended act just passed, thus: "Any board, upon complaint by a resident, may at any time summon before them a licensed person; and if they shall become satisfied that he has 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, which they are hereby empowered to do, and, when necessary, to enter upon the premises and take possession of and cancel such license."

This is a very important alteration of former statutes.

Note 1. The courts have ruled that this phrase, spirituous liquors,' page 3 includes ale, porter, and strong beer; while the legal intent as to Olager-been is left to juries to- be determined as a question of fact, by the evidence as to its intoxicating character, in each particular case. "Any liquor is within the statute, whether fermented or distilled, of which the human stomach can contain enough to produce intoxication," 21 N. Y. Reports, Court of Appeals, p. 173.

Note 2. The act of 1857 forbade licenses for retailing liquors, to be drunk on the premises, to any but inn or hotel keepers, who had accommodation for travellers, with three spare bods, stabling, and a sign. The same act also forbade license, except the application was accompanied by a petition of twenty respectable freeholders of the town, neither of whom had signed any other application for license. This requirement is not repealed by the statute of 1870. Three kinds of licenses maybe granted: (1) the innkeeper's license provided for by act of 1857, under which liquors sold may be drunk on the premises; (2) a license to such as are within the requirements of act of 1870-1873, but which does not permit selling liquors to be drunk on the premises; (3) a "beer license" to sell ale and beer to be drunk anywhere. This matter has been recently decided and settled by our courts.

Local Prohibition.

Note 3. No Board of Excise is compelled to give a single license. It is entirely in the discretion of these officers to grant or withhold from every applicant. This point has been definitely and repeatedly settled by the Supreme Court (1 Hill, 655; 7 Abbott, 34; 4 E. D. Smith, 142). Hence, the truest and best protection from the liquor traffic is to be found by the electors putting in office only such as will suppress it, and thus legal prohibition is indirectly but surely gained. From reliable information, there are one hundred towns and villages in this State now enjoying entire prohibition—actual suppression of the liquor traffic under the existing law; and doubtless there are three hundred towns where the temperance sentiment is so fully pronounced that with moderate effort such grand result would be gained.

Liabilities of the Excise.

Note 4. "License shall not be granted unless the Commissioners are satisfied that the applicant is of good moral character," Section 12. So far as I know, there is no judicial decision definitely describing this kind of person; but common sense and high authority in lexicography describe "good moral character" as "a life conformed to rules of right; as one who respects social duties; one who is virtuous, just." To license a person notoriously unlike and opposite to this description of character—as Excise boards sometimes knowingly do—is to violate their oath of office, and render themselves indict able for misdemeanor, 7 Barbour, 477.

Penalties for Unlicensed Selling.

Section 13, act of 1857, enacts that "Whoever shall sell strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor granted as herein provided, shall forfeit $50 for each offence."

Note 1. Few liquor dealers, and not all magistrates even, understand the very serious peril into which unlicensed traffic brings an offender. He is first page 4 liable in a civil action, and required to par $50 for each violation. He is then held on a criminal offence (see Section 29), and thus dealt with: "If an unlicensed person sells intoxicating liquor, such selling is, under the act of April 16, 1857, an indictable offence, and is to be punished as a misdemeanor. The rate of punishment is, by statute, fixed at three months' imprisonment in the penitentiary, work-house, or jail, besides the tine of $100; and no discretion is left to the court as to the extent of the punishment," 4 Parkers Crim. Rep., p. 27.

Last May, Justices Miller, Parker, and Potter, in General Term of the Supreme Court at Elmira, reaffirmed the above decision. Still later, Judge Morgan, another of the Supreme Court justices, has given the same opinion of the law, to wit: that retailing intoxicating liquor without license subjects an offender to three months' imprisonment and $100 fine; and that courts have no discretion in regard to this penalty. More recently still, different courts in Westchester, Rensselaer, Oneida, and Oswego Counties are understood to have pronounced the same identical judgments.

Note 2. Nor is the whole penal force of our Excise Law yet seen. Many of the offences against its provisions subject one to cumulative penalties. There is a sense in which an offence is treated as a civil action, the damages imposed being a debt due; and then, for the same offence, one is held to be a criminal, and punished for wrong done; just as is the practice in every penal code. For example, if one commits assault and battery, he is liable to be punished: first for breach of public peace; then, secondly, he is held for personal damages to the injured man. So with a licensed dramseller. If he sells on the Sabbath, to an apprentice or to one intoxicated, he is liable, first, to go to jail and lose his license for the Sabbath offence; then, secondly, to line for selling to persons forbidden; and if these customers, maddened by drink, injure person or property, the seller is "liable for all damages sustained." Or suppose one unlicensed keeps a dram-shop: for every sale he is liable in a civil action to pay $50; then, secondly, he may be taken on criminal indictment, sent three months to the penitentiary, and fined $100.

Note 3. There is a delusion in some minds that, when one has paid license on liquors to the General Government, he has a right to sell where and how he chooses, without regard to State regulations. But this is the law as explained in Waifs Digest of N. Y. Reports, p. 716: "The Supreme Court decide that an importer can sell liquor in packages and in condition in which it is imported, and in no other manner. This is the extent of the right. When the importer parts with property, or changes its condition, his right and all right to sell it, derived from the laws under which it is imported, ceases."

To Whom Liquor is Forbidden.

Sections 15,18,19, 20, and 21, act of 1857, forbid the sale or giving away of liquor to any Indian, apprentice, minor under the age of eighteen, without consent of parents; to an inmate of any poor-house, or to any intoxicated person, or to "any habitual drinker of intoxicating liquors," when liquor-sellers have been warned by magistrates or over page 5 beers of the poor not to sell to such drinker. It is unlawful, also, to sell or give liquor to any person guilty of habitual drunkenness, or to sell on the Sabbath, or on election days, or on any day of the week "between the hours of one and five in the morning" to any person.

The amended act of May, 1873, is very stringent in respect to Sabbath and election day violations. "All places licensed shall be kept closed at all times when selling is not authorized by law. Constable and police must enforce the observance of this provision."

Again. "Whoever offends by selling or giving away intoxicating liquor Sunday or election day, shall be guilty of a misdemeanor, and shall be punished for each offence by a fine not less than $30 nor more than $200, or by imprisonment not less than five days nor more than fifty days, or both such fine and imprisonment at the discretion of the court."

Note 1. For every violation of the law, .a licensed dealer, in addition to other penalties, has his license revoked, and is incapable of receiving another for three years. See Sections 25, 26, and 27.

Note 2. Magistrates and overseers of the poor are required, on complaint that a husband or other near relative is a "habitual drinker of intoxicating liquors," to issue written notices to all dealers complained of, forbidding them to give or sell any liquor to such person. If they do this, they are to be lined for each offence $50 and costs, Section 19.

Liabilities of Magistrates and Police.

Sections 16 and 17 of the amended act of 1869 require sheriff, constable, or policeman to "arrest all persons actually engaged in any violation of this act, and forthwith take them before a magistrate to be dealt with," etc. Such officers are also commanded to "arrest any person found intoxicated in any public place," to be examined, etc., by a magistrate. If either of these officers "neglect" their duty herein, they are to be fined $50 with lull costs of suit.

Civil Damage Section.

Section 28, act of 1857, provides that any "person who shall sell strong or spirituous liquors or wines to any individual to whom it is declared by this act unlawful to make such sale, shall be liable for all damages sustained in consequence of such sale; and the parties so offending may be sued in any court of this State by any individual sustaining such injuries, or by the overseer of the poor of the town where the injured party resides, and the sum recovered shall be for the benefit of the party injured."

This most important enactment, after having stood on the statute-book fifteen years, unused and almost unknown, is now supplemented, or in effect superseded, by a Civil Damage Act, passed at the closing of the last Legislature. This is an almost literal transcript of what is popularly known as "The Adair Law" of Ohio; and it may be well page 6 questioned whether any other enactment of so much real value to the whole people of New York as this could have been given. This new law we append in full on another page. The constitutionality of this law has been tested and affirmed.

Note.—Several legal questions respecting this act (especially its second section) will probably come before the courts; as—
1.That the rights of lessee or tenant, where lease was made before the passage of this act, cannot be affected by it.
2.That offenders who are tried by one or more justices must have right to a jury if they so elect
3.That property-holders who have rented buildings for drinking-houses before this Civil Damage Act cannot be held jointly responsible with the offender for damages caused by their selling. It is to be remarked, however, that, just before adjournment, the Legislature passed another act "defining some of the rights and responsibilities of landlords and tenants" [also appended in full], in which the use of any part of a rented building for "any illegal trade, manufacture, or other business," renders previous lease invalid, and enables the landlord at once to resume possession, etc. This will increase the liabilities of property-holders, but does not, after all, free such cases from judicial complication and uncertainty.

Of Adulterated Liquors.

Section 20, act of 1857, has a comprehensiveness of application not altogether apparent at the first reading. The enactment is in these words:

"It shall be the duty of courts to instruct grand jurors to enquire into all offences against the provisions of this act, and to present all offenders against this act, and also all persons who may be charged with adulterating imported or other intoxicating liquors with poisonous or deleterious drugs or mixtures, or selling the same, or with knowingly importing or selling intoxicating liquors or wines adulterated with poisonous or deleterious mixtures; which offences are hereby declared to be misdemeanors, to be punished by imprisonment in the penitentiary workhouse, or jail for a period of three months, and by a fine of one hundred dollars."

Note 1. To understand the full import of the phrase, Grand Jurors shall enquire into all offences against the provisions of this act, etc., be reader must turn back to the judicial expositions under the head, "Penalties for Unlicensed Selling," and to the classes of persons in Sees. 15, 20, and 21, to whom dramselling is forbidden.

Note 2. It is generally understood that nearly all the costly liquors sold in this State are mixed with hurtful drugs; much of them with virulent poisons. Prof. Lee, of New York, says there are immense establishments in that city for manufacturing adulterated liquors. There are twelve such flowing fountains in Syracuse, and so it is all over the land. Dealers can rarely be ignorant of the forbidden, deadly character of their drinks. And surely it is not difficult to procure a bottle from "sample-rooms" or hotels, and, with the analysis of a competent chemist, make out a perfect case against the venders

page 7

Of Railway and Ferry Companies.

Section 31, law of 1857, forbids railway, steamboat, ferry, or stage companies employing persons known to be intemperate. Penalty, $50 to $100 fine.

Offenders to be Closely Shut Up.

Section 32 enacts that, in any judgment given for violation of the law which requires imprisonment, the offender is "not entitled to the liberties of the jail," but must be actually confined.

Methods of Procedure.

Several sections in the law of 1857 (16, 17, 19, 25) authorize complaints for any violation of the Excise Law to be made before a police justice, justice of the peace, or by presentment to grand juries before the higher courts. All civil suits, except those under Sections 15, 19, and 28, are to be brought by the Overseers of the Poor. But in case these refuse or neglect for ten days to prosecute a complaint made to them with reasonable proof, then Sec. 30 provides that "any other person may prosecute therefor in the name of the Board of Commissioners of Excise."

Complaints, either civil or criminal, may be made at any time within three years after an offence has been committed. (See Sec. 92, N. Y. Code, and Revised Statutes, p. 726.)