Furman v. Knapp , 19 Johns. 248 ( 1821 )

Spencer, Ch. J.

delivered the opinion of the Court. The plaintiffs sued for two penalties of twenty-five dollars each, for that the defendant had sold at different times, in the tenth ward of the city of New-York, half a pint of spirits, at his grocery-store, to be drank in his house or store, in the one case ; and in the other, to be conveyed out of his house, without having the license of the commissioner of excise.

* The offences were fully proved; and it was also fully proved, that at the time of such sales, the, defendant had been duly licensed by the mayor of New-York, and had en» tered into the recognizance required by law, but had taken n0 license from the commissioner of excise. On these facts, the jury found a verdict for the defendant, and declared, on being interrogated, that they so found on the law of the case.

By the charter of Ncw-York, the mayor has the exclusive power to give and grant licenses, annually, under the seal of the city, to such persons as he shall think fit, to keep a tavern, inn, ordinary, or victualling house, and to sell wine, brandy, rum, &c. and all sorts of exciseable or strong liquors, within the city, by retail or small measure; and the mayor may ask and take a sum, not exceeding thirty shillings, for each license.

The first section of the act laying a duty on strong liquors, and for regulating inns and taverns, (1 N. R. L. 176.) authorizes the governor, with the consent of the council of appointment, to appoint, from time to time, such person as they may think proper, in the city of New-York, to be the commissioner for collecting the duty of excise from the several retailers of strong and spirituous liquors in said city and it constitutes the supervisor and any two justices of the several towns in the state, as commissioners for collecting the duties in the several towns.

It will be seen, by a reference to the second volume of Greenleaf’s edition of the laws, (p. 116.) that on the 1st of March, 1788, the very same provision was made by the legislature for the appointment, by the governor and council, ' of a commissioner for the collection of the duty of excise from the several retailers of strong and spirituous liquors in that city. The provision is precisely the same in both the statutes.

The third section of the present act, (1 N. R. L. 177.,) renders it lawful for the commissioners of excise in the several towns, annually, under their hands and seals, and in the several cities, annually, in the manner directed by their respective charters, or by any statute prescribing such manner therein, to grant licenses to retail strong or spirituous liquors under five gallons; and then follows a proviso, regulating licenses to retail strong or spirituous liquors for keeping a house or tavern.

■ The fourth section enacts, that it shall be lawful for the commissioner of excise in the city of New-York to deter-" mine the sum to be paid for each license for retailing strong or spirituous liquors under five gallons, not less than five dollars, nor more than fifty dollars, as a duty of excise, and direct, the sum demanded to be paid to the commissioner before the license shall be issued ; the money thus received is to be paid to the overseers of the poor of the city, to be applied for the relief of the poor thereof.

The sixth section requires, that before any person shall sell by retail, to be drank in his house, &cc. he shall enter into a recognizance as therein specified, but as to those who retail liquors not to be drank in the house, but carried elsewhere, they shall not be obliged to enter into such recognizance.

The seventh section enacts, that if any person shall sell by retail any strong or spirituous liquors, without having such license as aforesaid; or if any person shall sell any strong or spirituous liquors to be drank in his house, &¿c. without having entered into such recognizance as aforesaid, every person guilty of either of the offences, shall, for each of-fence, forfeit twenty-five dollars.

It has been strenuously contended by the defendant’s counsel, that the act is either inoperative, fronri its direct violation of the charter, or is inefficient, from its incongruity ; and that, notwithstanding the statute, the license from the mayor supersedes the necessity of obtaining a license from the commissioner, and is a protection to the defendant.

It is not necessary to inquire into the reasons of requiring a double license to do the same act, because if we should not be able to assign any satisfactory reason for it, and if the inconvenience of this course should be admitted, it would not aid the argument, nor lead to any conclusion upon the present question. There can be no doubt that from the year 1788, to the present period, both the mayor and commissioner have granted their licenses, the first under the charter, and the latter under the statute.. After such a lapse of time, we are bound to presume that the corporation of Neie-York gave their assent to the act. It is not necessary, therefore, to discuss or consider how far the legislature, without the consent of the corporation, might mojjfy and change the charter: It is sufficient, that after an acquiesence by the corporation in the act, for such a length of time, we must take it, that the charter was modified:, jn this particular, by their consent.

But it is said, that the act requires the excise licenses in New-York to be granted by the commissioner “in the manner directed by the charterthat, therefore, it must be granted by the mayor, and that consequently it excludes the commissioner. If the act was justly liable to this construction, it would be absurd, indeed. The defendant’s counsel mis^take the provisions of the third section; it is thus : “ that it shall be lawful for the commissioners of excise, in the several towns of this state, annually, by writing under their respective hands and seals, and in the several cities aforesaid, annually, in the manner directed by their respective charters, or by any statute prescribing such manner therein, to grant,” &c. Now, in the preceding section, the cities of New-York, Albany, Hudson, and Schenectady, were particularly mentioned j and it is well known that, technically speaking, no charters had been granted incorporating Hudson and Schenectady. Those cities were incorporated by statutes. When, therefore, the act under consideration used the words, “ or by any statute prescribing such manner therein,” the mode of granting such licenses, provided for by the acts of incorporation, and by that very statute, was legalized. '

If the charter of the city of New-York, authorizing the mayor to grant licenses, was not altered by the statute, as I think it was not; and if the statute also provided for the granting of excise licenses by the commissioner, as I clearly think it did, then it follows that there was a concurrent jurisdiction, and that to entitle any person to sell or retail strong or spirituous liquors under five gallons, a license both from the mayor and commissioner was necessary.

It is very certain that the rights of the corporation are not affected by this construction; for the moneys received by the commissioner of excise go into the coffers of the corporation, for the support of their poor: this consideration, too, very much strengthens the presumption, that the act was not passed in hostility to the rights of the corporation, hut in furtherance of those rights. We perceive that the mayor cannot exact for his license a larger sum than thirty shillings, whilst the commissioner may exact as much as fifty dollars. This, probably, induced the legislature .to adopt this mode of increasing the revenues of the city, upon a subject which they judged would hear an indirect tax; and it is not improbable, that it was considered more correct to devolve that business on a distinct officer. Whether any conflict has existed between the mayor and 'the commissioner, in the exercise of their respective duties, .it is not material to inquire ; nor whether the commissioner would not be bound to give a license to every person having one from the mayor.

It seems to me that we give full effect to the charter, by saying, that the power and authority of the mayor yet exists in full force; and we are bound to say, that the statutory provision remains unaffected by the charter, because we are bound to presume that the statute was passed with the assent of the corporation. It then turns out, that the charter requires a license from the mayor, and the statute requires a license from the commissioner also ; and the only inconvenience that a retailer is subject to, is the necessity of obtaining both.

Judgment reversed.