Disbrow v. Saunders — 1 Denio 149

Majority

p. 149

Disbrow and Baldwin, overseers of the poor, vs. Saunders.

Headnote

' The provision prescribing the time during which a licence to sell liquors shall remain in force, (1 R. S. 679, § 5,) does not refer to the calendar year, but to the licence year ; and therefore a licence granted after the first Monday of May expires at the same time with those granted on that day.

Error to the Seneca common pleas. Disbrow and Baldwin, overseers of the poor of the town of Waterloo, sued Saunders before a justice in debt for selling strong or spirituous liquors in quantities less than five gallons at a time, without having a licence; and on the trial in December, 1843, proved the selling in repeated instances between May and December of that year. The defendant produced a licence from the commissioners of excise of the town of Waterloo to himself, to keep an inn or tavern, and to sell strong and spirituous liquors therein ; which licence was dated the 31st day of December, 1842, and by its terms was “ to be and remain in force until the day after the first Monday of May next, and no longer.” The defendant then proved by parol, though the evidence was objected to by the plaintiffs, that the licence was in fact granted and delivered to him early in January,. 1843, and not in December preceding, when it bears date. In answer to this evidence the plaintiffs proved that although the licence was given in January, it was dated in December for the purpose of having it expire in May, 1843. This was talked over by the board of excise at the time the licence was granted—the defendant being present. It was further proved that the commissioners of excise, at their annual meeting in May, 1843, refused to grant any licences to sell strong or spirituous liquors in quantities less than five gallons; and at that time the defendant took a licence as a tavern-keeper under the licence law of 1843. (Slat. 1843, p. 79.) The justice gave judgment for the defendant, which upon certiorari was affirmed by the common pleas. The plaintiffs now bring error.

McAllister <£* Hadley, for plaintiffs in error.

John Knox, for defendant in error.

The defendant seeks to justify the selling of spirituous liquors after May, 1843, under a licence which, according to its terms, was to “remain in force until the day after the first Monday of May next, [1843,] arid no longer? If we look at nothing but the licence, it is not important whether we follow the actual date—-December, 1842—■ or consider it as taking effect in January following; for in either case the words “ May next” can only mean May, 1843. But the defendant refers to the statute, which provides, that the licence “ shall be in force, unless revoked, until the day after ¿the first Monday in May in the succeeding year.” (1 R. S. 679, § 5.) And this, it is said, extends the licence to May, 1844. It is quite evident from the case that the commissioners of excise, with the assent of the defendant, fixed -the date in December, 1842, for the very purpose of effectually limiting the continuance of the licence to May, 1843, whatever might be the true construction of the statute. If the purpose which the parties had in view was an illegal one, .the licence was void, and the defendant can derive no benefit from it. On the other hand, if the licence was ante-dated for an honest and lawful purpose, that purpose should be carried into effect; and so in either view of the matter the plaintiffs were entitled to judgment.

Btit there is another ground on which the plaintiffs were entitled to recover. I do not agree with the defendant in his construction of the statute. The commissioners of- excise are required to meet in their respective towns “ on the first Monday of May in each year, and on such other days as the supervisor shall appoint.” (§ 2.) They have power to grant licences, (§ 4,) which “ shall be in force, unless revoked, until the day after the first Monday in May in the succeeding year? (§ 5.) This does not mean the calendar, but the excise year. The commissioners are to meet annually on the first Monday in May for the purpose of granting licences, and although .other licences may be granted at a subsequent period in the year, they are all to expire on the day after the next annual meeting of the commissioners, when there will have been an opportunity to obtain a renewal. On the defendant’s construction of the statute, a li

p. 151

cense granted on the first day of January will continue in force a year and four months, while a licence dated only one day earlier will remain in force hut four months. I cannot think that such was the intention of the legislature.

Judgments reversed.