People ex rel. Friel v. Commissioners of Excise

Majority

p. 89

The People of the State of New York ex rel. Henry W. Friel, Relator, v. The Commissioners of Excise of the City of Poughkeepsie, Respondent.

Headnote

Excise Law—revocation of a license for a sale by a woman—when justified— licensee entitled to be hearrd—1892, chap, 401, §§ 27, 28, subd. 3.

Upon the return to a writ of certiorari, directing the excise commissioners of the city of Poughkeepsie to return their proceedings relative to the revocation of the license of Henry W. Friel, it appeared that he was granted a license to sell ale and beer; that subsequently Kate Mixture was convicted of selling beer on Sunday at-the place .of business-.of Friel, and thaWthereupon the commissioners

p. 90

of excise, without notice to Friel, revoked his license. The return did not show that Kate Mixture sold the beer by permission of Friel, and it was’"not shown that she was not a member of his family.

Held, that the revocation. could not be sustained, as the essential facts that the sale had been made by permission of the licensee and by a woman not a'member of his family had not been proved;

That the licensee was, in any event, entitled to notice of the application to revoke the license, and to be heard in oppositibn.

Certiorari issued out of the Supreme Court, and attested On the 25th day of January, 1896, directed to the excise commissioners of the city of Poughkeepsie, commanding them to return to the office of the clerk of • the county of Dutchess all and singular their proceedings in regard to the revoking of the license of the relator to sell intoxicating.liquors.

William L. De Lacey, for the relator.

Hackett <& Williams, for the respondent.

. It appears by the return in this proceeding that on .May 1, 1895, ■a license to sell ale and beer was granted to the relator, Henry- W. Friel; that thereafter one Kate Mixture was convicted before the recorder Of Poughkeepsie of the offense of selling beer on Sunday at Fidel’s place of business; that Upon being advised of that conviction by the recorder, without notice to Friel or any hearing, the commissioners' revoked his license.

To sustain the action of the commissioners the court is referred to subdivision 3, section 28, chapter 401 of the Laws of 1892, winch is as follows: “ Á board of excise may revoke any license* granted by it in either of the following cases : * * * If .the licensee shall during the term of his license, permit any girl or woman not a member of his family, to sell or serve * * * upon the licensed premises any strong or spirituous liquors, wines, ale or beer.”

There is nothing in the return to show that the act of Kate Mix-, turc was done with the permission of the relator, or that she was not a member of his family; nor was her act one which, under section 2Y of the act cited, worked an immediate revocation of the license. . ... . •

p. 91

. The return does not, therefore, show facts sufficient to sustain the determination of the commissioners.

- ' It was essential to their determination that the sale of which Kate Mixture was convicted should have been shown to have been with the permission of Friel, and that she was not a member of his-family. We dp not find in the law any provision that the license could be revoked upon the conviction of any person other than the licensee for a sale on Sunday; and to warrant a revocation for such sales there must be two convictions. , (Subd. 6, § 28.)

We are also of the opinion that the relator was entitled to notice. of the application to revoke his license, and tc be heard in opposition thereto. The application to revoke his license was for an act done by another with his permission. Upon that complaint he was certainly entitled to a hearing. ■

The determination appealed from must be annulled, with costs.-

All concurred.

Determination annulled, with ten dollars costs and disbursements.