People v. Yarter — 28 N.Y. Crim. 137

Majority

p. 137

SUPREME COURT—APP. DIVISION—THIRD DEPT.,

Sept. 11, 1912.

THE PEOPLE v. LEVI YARTER.

(152 App. Div. 566.)

Headnote

(1.) Liquob Tax Law*—Local option election.

A vote upon local option resulted in the negative as to questions 1, 2, 3, and in the affirmative as to question No. 4. The affirmative vote upon question No. 4 modified the negative decision upon question No. 1, as to selling liquors to be drunk on the premises where sold, by reason of the condition contained in question No. 4, “ if the majority of the votes east on the first question submitted are in the, negative,” to the extent of permitting liquor to be sold to be drunk on the premises where sold, in connection with the business of keeping a hotel; but said vote in no way modified the negative decision as to question No. 2, which relates to the traffic in liquors not to be drunk on the premises where sold.

Held, that after such vote became effective, the holder of a liquor tax certificate, issued under subdivision 1 of section 8 of the Liquor Tax Law in connection with the business of keeping a hotel, was not authorized to traffic in liquors not to be drunk on the premises where sold, although the majority of the votes cast on the second question was in the negative.

(2.) Same—Indictment.

An indictment for unlawful trafficking in liquor is not defective upon the ground that it stated that the four local option questions were “ duly submitted,” instead of expressly alleging the various preliminary steps requisite to the legal submission of such questions.

Appeal by the plaintiff, the People of the State of New York, from a judgment of the County Court of Washington county, entered in the office of the clerk of said county upon the decision of the court made on the 2d day of February, 1912, allowing a demurrer to an indictment charging the defendant with a violation of the Liquor Tax Law.

Erskine C. Rogers, for the appellant.

J ere M. Gronin and J. H, Barker, for the respondent.

See note 19-41.

This is an appeal from a judgment allowing a demurrer to an indictment which charged defendant, who was a hotel-keeper in the town of Hartford, Washington county, with having in October, 1911, unlawfully trafficked in liquor, no part of which was to be drunk on the premises where sold. At a preceding town meeting the vote upon local option had resulted in the negative as to questions 1, 2 and 3, and in the affirmative as to question Ho. 4'. The vital question involved upon this appeal is whether the respondent, who was the holder of a liquor tax certificate issued under subdivision 1 of section 8 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39) to a person in connection with the business of keeping a hotel, was authorized to traffic in liquors not to be drunk on the premises where sold, when the majority of the votes cast upon the 2d question was in the negative. While the vote was against question Ho. 1, as to the selling of liquor to be drunk on the premises where sold, and also against question Ho. 2, as to the selling of liquor not to be drunk on the premises where sold, yet the affirmative vote upon question Ho. 4 modified the negative decision upon question Ho. 1, as to selling liquors to be drunk on the premises where sold, by reason of the condition contained in question Ho. 4, “ if the majority of the votes cast on the first question submitted are in the negative,” to the extent of permitting liquor to be sold to be drunk on the premises where sold, in" connection with the business of keeping a hotel, but question Ho. 4 containing no such condition as to question Ho. 2, said-vote in no way whatever modified the negative decision as to question Ho. 2, as to selling liquors not to be. drunk on the premises where sold. B-ut it is claimed by respondent that he had the right to traffic in liquors not to be drunk on the premises where sold by reason of the following provision of subdivision 1 of section 8:. “ The holder of a liquor tax certificate under this subdivision is entitled to traffic in

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liquors as though he held a liquor tax certificate under subdivision two of this section, subject to the provisions of section thirteen of this chapter.” In section 13 (as amd. by Laws of 1910, chap. 485), entitled “ Local option to determine whether liquor shall be sold under the provisions of this chapter,” we find this provision-: “ If the majority of the votes shall be in the negative * * * no person shall thereafter so traffic in liquors or apply for or receive a liquor tax certificate under the subdivision or subdivisions of section eight, referred to in the question or questions upon which * * * the majority of the votes cast shall have been cast in the negative.” Subdivision 2 of section 8 was referred to in question 2 as follows: “ Shall any person be authorized to traffic in liquors under the provisions of subdivision two of section eight of the Liquor Tax Law, namely, by selling liquor not to be drunk on the premises where sold.” The vote upon question -2 having been in the negative, the above-quoted provision of section 13 constituted a positive restriction of the right of the respondent to traffic in liquors under subdivision 2 of section 8, and negatived any right which respondent might claim to have to traffic in liquors by reason of the provisions of subdivision 1 of section 8 hereinbefore quoted. Prior to the passage of chapter 485 of the Laws of 1910, and since the amendment of section 13, then section 16, by chapter 312 of the Laws of 1897, the keeper of a hotel, who was the holder of a liquor tax certificate, had the right to traffic in liquors to be drunk in the hotel, and also' off the premises, by reason of the following provision of section 13: “ But if the majority of the votes cast on the fourth question submitted is in the affirmative, and a majority of the votes cast on the first-question submitted is not in the affirmative, a liquor tax certificate may be granted under subdivision one of section eight to the keepers sof hotels, who may traffic in liquor to be drunk in the hotel and off the premises, though the majority of the votes cast on the second question submitted is not in the affirmative.”

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(See Gen. Laws, chap. 29 [Laws of 1896, chap. 112], § 16, as amd. by Laws of 1897, chap. 312; Laws of 1899, chap, 398; Laws of 1900, chap. 367; Laws of 1901, chap. 640; Laws of 1905, chap. 680; Laws of 1907, chap. 345, and Laws of 1908, chap. 144; Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 13.) By chapter 485 of the Laws of 19-10, which went into effect June 14th of that year, the Legislature repealed this provision of section 13, since which time there has been no provision of law authorizing the holder of a liquor tax cretificate under subdivision 1 of section 8 to traffic in liquors in towns in which the majority vote on question Ho. 2- was in the negative, as though he held a liquor tax certificate under subdivision 2 of section 8. Attention may be called to the amendment of section 36 by chapter 485 of the Laws of 1910 by the insertion of the words “ by reason of the result of a vote on the local option questions,” as further indicative of the intent of the Legislature.

The objection that the indictment is defective upon the ground that it stated that the four questions were “ duly submitted,” instead of expressly alleging the various preliminary steps requisite to the legal submission of such questions, is without merit. The words “ duly submitted ” imply the existence of every fact essential to the regularity of the proceedings. (Hall v. People, 90 N. Y. 498 ; Brownell v. Town of Greenwich, 114 Id. 518, 527 ; Baxter v. Lancaster, 58 App. Div. 380 .)

For the foregoing reasons we are led to the conclusion that the facts stated in the indictment constituted a crime, and, hence, that the judgment allowing the demurrer should be reversed, the demurrer disallowed and the defendant required to plead.

All concurred.

Judgment reversed and -demurrer overruled and defendant directed to plead. .

Cases cited

Hall v. People 90 N. Y. 498 N.Y. 1882-12-12 p. 140