Bd. of Com'rs of Excise of the City of Auburn v. Merchant

• Decision Date: 05 October 1886
• Citation: 103 N.Y. 143,8 N.E. 484
• Parties: BOARD OF COM'RS OF EXCISE OF THE CITY OF AUBURN v. MERCHANT.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 143

8 N.E. 484

BOARD OF COM'RS OF EXCISE OF THE CITY OF AUBURN

v.MERCHANT.

Court of Appeals of New York.

October 5, 1886.

N. C. Moak, for appellant, Garden F. Merchant.

F. D. Wright, for respondent, Board of Com'rs of Excise of the City of Auburn.

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 Com'rs of Excise, etc., v. Burtis, ante, 482.

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 drank 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 liquous in quantities less than five gallons not to be 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, of 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 have requested the qualification; and now the charge must be 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...