5 A.D. 441 | N.Y. App. Div. | 1896
The opinion of Pryor, J., was as follows:
Upon the return to a writ of certiorari to review the action of the excise board in refusing a liquor license to the relator the facts are not in dispute, and the controversy involves only the construction of this provision of the statute, namely, “No person * * * shall * * * be licensed to sell strong or spirituous liquors, * * * in any building * * * which shall be on the same street or avenue and within 200 feet 'of a building occupied exclusively as a * * * school house ” the distance to be ascertained by measuring from the center of the nearest entrance of such building to ,the center of the nearest entrance of the place for which the license is solicited. (§ 43 of chap. 401 of the Laws of 1892, as amended by chap. 480 of the Laws of 1893.)
In view of its obvious policy in protecting the school against the evil influences of the saloon, the statute should be so expounded as to accomplish its benign intent, and to that end be accorded a literal or a liberal interpretation as may most effectually avert the apprehended mischief. (People ex rel. Cairns v. Murray, 148 N. Y. 171, 173; People ex rel. Gentilesco v. Excise Board, 7 Misc. Rep. 415, 417.)
The prohibition is explicit and imperative that no license is allowable for a saloon on the same street and within 200 feet of a school house. In this instance the school house and the saloon are on Fifty-eighth street, and are separated by less than the requisite distance. The case, then, is within the terms of the enactment. But the relator insists that, as the entrance to the saloon is on Sixth avenue, the actual predicament is not within the policy of the law.
Were the court authorized upon pretense of construction to nullify a plain and peremptory provision of the statute by imputing to the Legislature a meaning contradictory to its language, still I do not perceive that the situation is exempt from the evil against which the enactment is a studious safeguard. The school house and
But the presence of a saloon in proximity to a building is prohibited only when the building is “ occupied exclusively as a * * * school house,” and the relator contends that the house in question is not so occupied.
"What is the exclusive occupancy intended by the statute ? Obviously an occupancy for a different and independent purpose; for a purpose having no relation to the use of the building as a school house. If the additional use of the building be incidental only, and no way inconsistent with its primary and paramount use as a school house ; if the additional use be under the control of the school authorities, and instrumental to the end of imparting instruction ; if it be so trivial and insignificant as not to detract from the pervading character of the building as a resort for learning, then, surely, such use does not abolish the exclusive occupancy intended by the statute.
The fact which the relator affirms, that it forfeits this exclusive occupancy, is, that seven persons, not teachers in the school, live in the building and pay their board ; but these persons are teachers by profession and members of the Brotherhood by which the building is owned and the school conducted. They prosecute their studies in the building; they pay for their subsistence only, and the money goes to the support of the school; the fund so paid is the wages of teaching, and is expended in the interest of teaching; and, finally, the residence and maintenance of these teachers in the building is an essential principle in the system of economy by which the school is supported and administered. To what other use, than to promote the interests of education, can it be said, with reason, that the building is appropriated ?
“ A school or a college building may have in it rooms or apartments for the use of the students and teachers, and it would still be occupied exclusively as a school house within the meaning of the statute. Such use of rooms or parts of the building is incidental to
Indisputably, under the administrative system of Christian Brotherhood, the boarding in its buildings of members who teach in other schools is an incident of its process of education.
I conclude, therefore, that the occupancy by the seven persons of the building in question leaves it still essentially nothing but a school house.
"Writ discharged and proceedings dismissed.