49 N.Y.S. 605 | N.Y. App. Div. | 1898
It is obvious from a mere reading of the foregoing statement of facts that the sole question to be considered upon this review is the construction which shall be given to certain provisions of subdivision 2 of section 24 of the Liquor Tax Law. This section, 'so far as its language is of any importance in this connection, reads as follows:
“ § 24. Traffic in liquors shall not be permitted :
tip # * *
“2. * * * within two hundred feet of a building occupied exclusively as a church or schoolhouse; * * * provided, however that this prohibition shall not apply to a place which on the twenty-third day of March, eighteen hundred and ninety-six, was lawfully occupied for a hotel, nor to a place in which such traffic in liquors was actually, lawfully carried on at that date. * * * ”
While it is conceded that the relator’s place of business is within 200 feet of a building occupied exclusively as a church, it is nevertheless contended that he brings himself within the exception to the section just quoted by reason of the fact that the business of trafficking in liquors was lawfully carried on upon the same premises at the time the Liquor Tax Law went into operation ; and the fact stated being true, such contention must prevail, unless the privilege granted by the exemption clause was lost in consequence of the abandonment Of the business at this particular place for the period of two months subsequent to the time specified in the statute.
This statute was doubtless enacted under the police power of the State, and while its language should receive a just and reasonable construction, the object and intent of its enactment should not be lost sight of. The main object which the Legislature had in view was, of course, to confine the traffic in liquors within certain limits and to surround it with well-defined restrictions. One of these
A provision similar to the one which we are now considering was contained in the act of 1892 (Chap. 401), as amended by chapter 480 of the Laws of 1893. , It. is claimed, however, that under that act the privilege was personal in its character, while under the present law it is one which is impressed upon the place, and not the individual.
This distinction seems to us. somewhat forced, but whatever merit "there is in it, it must be admitted that the concession, whether it be to the person or to the place, is one which is clearly an exception to the general policy of. the law, and consequently it is one which ■should receive á strict interpretation. In a recent case it was said to be “ a familiar canon of construction that a thing which is within the intention of the makers of a . statute is as much within the statute :as if it were within the letter; and a thing which is within the letter ■of the statute is not within the statute, unless it be within the intention of the makers.” (Riggs v. Palmer, 115 N. Y. 506, 509.)
And we have the very best authority for declaring that when the intention of the lawmakers is once ascertained, it becomes the duty of judges to give such a construction as shall repress the mischief and advance the remedy aimed at. (1 Kent, *465.)
Applying then the rule thus stated to the present case, and it becomes our obvious duty to so construe the exceptional provision under consideration as that it shall conform, if' possible,'to the general design and policy of the statute as a whole. We have stated what that policy is, and we think it only remains to show how
The views to which we have thus given expression are, as we believe, not only in consonance with every principle of justice and propriety, but they are likewise in harmony with those expressed in numerous instances where a construction of this and similar statutes has been involved. (People ex rel. Cairns v. Murray, 148 N. Y. 171; People ex rel. Gentilesco v. Excise Board, 7 Misc. Rep. 415 ; People ex rel. Sweeney v. Lammerts, 18 id. 343; affd., 14 App. Div. 628; Matter of Ritchie, 18 Misc. Rep. 341; Matter of Zinzow, Id. 653; Matter of Korndorfer, N. Y. L. J., Nov. 23, 1897.)
Our conclusion of the whole matter, therefore, is that the order appealed from should be reversed and the writ dismissed, with fifty dollars costs and disbursements to the appellant.
All concurred.
Order reversed and the writ dismissed, with fifty dollars costs and disbursements to the appellant.