| N.Y. Sup. Ct. | May 15, 1847
The territory included in the village of Clintonville constitutes a part of the towns of Au Sable and Chesterfield; and the inhabitants of the village continue subject to the town authorities in the town to which they respectively belong. The powers conferred upon the village corporation are in addition to those which may be exercised by the towns; and do not, unless it be in the matter of granting licenses to sell spirituous liquors, abrogate any power which before belonged to the towns. The village was incorporated in 1825; and by the third section of the act, the trustees have power to make “ such prudential by-laws, rules and regulations as they, from time to time, shall deem meet and proper; and such in particular as shall relate” “to the public markets, inns, and taverns in said village, and the number thereof; to the regulating, restraining and suppressing of all manner of shops and places for the sale of ardent spirits by retailand to various other subjects. And by the fourth section, the trustees are authorized to impose fines and forfeitures for the breach of the by-laws, not exceeding fifteen dollars for any one offence. (Stat. 1825, p. 172.) The power to grant licenses which should authorize the sale of spirituous liquors was no where given in terms; and it cannot be fairly inferred from the power to make by-laws. Nor can it be inferred from the fourth section of the act of 1844, by which the powers vested in the trustees of the village by the third section of the charter are “ declared to be exclusive, within the limits of the said village, of the powers of the town officers of Au Sable and Chesterfield in respect to the licensing of inns, taverns, shops and places for the sale of ardent spirits by retail.” (Stat. 1844, p. 137.) The section does not profess to make a new grant; but only to declare the powers already granted to the trustees to be exclusive cf those which had been given to the town officers by the general excise law of 1830. (1 R. S. 678, tit. 9.) Those officers had been authorized to license inns and other places for the sale of ardent spirits; and if the authority could be annulled, it could not be transferred to the trustees by a mere power, though, exclu
It is not necessary to inquire what are the powers of the trustees in relation to inns and taverns; for no such question is made by this case. The defendant was not a tavern-keeper; but a ram grocer. With the exception of inns and taverns, if they constitute an exception, the trustees have power to make by-laws for “ the regulating, restraining and suppressing of all manner of shops and places for the sale of ardent spirits by retail.” The power is clearly broad enough to warrant the entire prohibition of any such shop or place within the limits of the village. And if the trustees may go to that extent, I see no reason why they may not stop short of it, and say, there shall be none, except such as we shall authorize or license to be kept. The word “ license,” as it is used in the ordinance of the trustees, does not mean an authority under the excise law to sell spirituous liquors; but an authority to sell notwithstanding the ordinance. The trustees did not attempt to raise revenue by granting licenses under the excise law; but only to protect the inhabitants of the village against the consequences of licenses which might be granted by the town authorities. As ardent spirits might sometimes be required for other purposes than that of producing intoxication, the general prohibition was qualified by reserving the right to grant licenses or permits to sell; which permits, it may be presumed, would either be restricted to sales for special and laudable purposes, or to persons who would not use the license for the purpose of making money at the expense of human happiness. But whether the power which the trustees reserved should be discreetly exercised or not, as they had the power to prohibit sales altogether, I cannot doubt that they might do it to a limited extent. (Coates v. The Mayor of New-York, 7 Cowen, 585.)
Upon the construction which I have given to the statute, if the trustees had forbidden sales, without any qualification^ it would, in effect, have superseded the authority of the town officers to grant licenses to sell within the village. But as the by-law does not forbid sales when made under the license or
If the powers granted to the trustees by the third section of the charter were taken away by the general excise law of 1830, (Harrington v. Trustees of Rochester, 10 Wend. 547; The People v. Morris, 13 id. 325,) they were fully restored by the act of 1844; or so far, at the least, as relates to “ the regulating, restraining and suppressing of all manner of shops and places for the sale of ardent spirits by retailand they were declared “ to be exclusive, within the limits of the said village, of the powers of the town officers.” The legislature must have intended that the trustees should be at liberty to use their powers to the exclusion of, or notwithstanding the powers which had been given to the town officers.
The power is, to make by-laws for “ the regulating, restraining and suppressing of all manner of shops and places for the sale of ardent spirits by retail.” This amounts to an authority to forbid the sale; for if there is a sale, it must be made in some place. The by-law is in both forms; it forbids the sale; and also forbids the using or keeping of any manner of shop or place for the sale of ardent spirits by retail. No question was made on the trial in relation to the form of the declaration, which is for selling ardent spirit^ contrary to the ordinance.
The defendant showed no license of any kind. We think the judgment of the common pleas should be reversed, and that of the justice affirmed.
Ordered accordingly.