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La Croix o. County Commissioners.

of police against the relator for keeping open his saloon on Sunday for the sale of beer and for selling beer therein on that day, in violation of the statutes. The respondent board thereupon summoned the relator to show cause before them why his license should not be revoked, as prescribed by section 8 of chapter 549 of the laws of New York of 1873. The relator appeared before the board and protested against further proceedings, on the ground that the board had no jurisdiction, and that the complaint preferred alleged no violation of the excise law. These objections were overruled by the board ; and thereupon the relator filed a motion in the Supreme Court of the Second Judicial Department of New York, at a special term, for a writ of prohibition, to compel the board to desist from proceeding to revoke the relator's license. The motion was there denied. The case then went, to the Supreme Court of the same judicial department at the general term, and there the order of the special term denying the motion was affirmed. The relator then took the case to the Court of Appeals, and there the order of the general term was affirmed. GROVER, J., in giving the opinion of the court, in which all of the judges concurred, said :—“ Section 8 of chapter 549, Laws of 1873, page 859, among other things provides that the board of excise of any city, town or village may, at any time, and upon the complaint of any resident of said city, town or village shall, summon before them any person or persons licensed as aforesaid, and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act or of the acts hereby amended, they shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do; and when necessary, to enter upon the premises and take possession of and cancel sich license. Upon an inquiry, the said board, or the party complained of, may summon, and the said board may compel the attendance of witnesses before them and examine them under oath. The acts referred to are the act regulating the sale of intoxicating liquors passed April 11th, 1870, and the act entitled an act to suppress intem

La Croix v. County Commissioners.

perance and to regulate the sales of intoxicating liquors, passed April 16th, 1857. These latter acts embrace the statutes now in force in regard to the sale of intoxicating liquors and for licensing the same. It will be seen that section 8 authorizes the board of excise, upon their own motion, whenever they suspect any person having a license for the sale of intoxicating liquors of having violated any of the provisions of the acts in question, to summon such person before them to inquire into the fact of such violation, and if they find him guilty, cancel his license; and upon the complaint of any resident of any city, &c., that such person has violated any such provision, commands them to summon such party and make inquiry as to the fact complained of. Complaint was made to the board by a sergeant of the police of Brooklyn, that the appellant, in substance, kept his saloon open upon Sunday for the sale of, and sold beer therein. Though this is not formally stated in the complaint, yet the facts stated therein show, if true, that this was done there at that time. That keeping open the saloon on that day for the public sale of beer for a beverage was a violation of the statute requires no argument.”

After stating that it was insisted by counsel for the appellant that section 8, supra, was repealed as to the city of Brooklyn, and holding that it was not, but was in force, the learned judge proceeds as follows:—“The counsel further insists that section 8 is unconstitutional, for the reason that it authorizes the conviction of a party of a crime without a trial by jury. But it authorizes nothing more than an inquiry into and determination of the question whether the party licensed continues to be a suitable and proper person to sell intoxicating liquors, the statute itself determining that a violator of the excise laws, while holding a license, is not such a person. That the power to license the sale of intoxicating liquors and to cancel such license when granted is vested in the legislature has been determined by this court. Metropolitan Board of Excise v. Barrie, 34 N. York, 657. The mode and manner rests in the discretion of that body.”

La Croix v. County Commissioners.

This decision and the other decisions to which I have referred, satisfy me that chapter 124 of the public statutes of 1881 violates no constitutional rights of the complainant or of any other citizen, and should therefore be held valid. It necessarily follows that the rule granted in this case must be discharged.




Where a defendant had been convicted
1. The statute (Gen. Statutes, tit. 18, ch. before a justice upon a complaint and

11, sec. 15.) provides that when any per- appealed to a higher court, it was held that
son shall be aggrieved by the allowance or as the appeal vacated the judgment, the
disallowance of any claim by commission- case stood, as to the facts that might be
ers on an insolvent estate, he may, within proved in support of the charge, precisely
twenty-one days after the report of the as it would have done if it had been
commissioners is accepted by the probate brought originally to the appellate court.
court, appeal to the next Superior Court.
Held-1. That as the court has the power

for cause to reject the entire report, the

1. An appeal can not be taken in a probate
acceptance of the report intended by the

court from the allowance or disallowance
statute is a formal acceptance, and not its
mere reception on its being returned by

of an appeal. Elderkin's Appeal from

2. That such an

the commissioners.
acceptance is complete and operative

2. If the appeal is improperly allowed the
although no record or entry of it is made

aggrieved party has a full opportunity to

make the question in

at the time. Bailey v. Whitman.

appellate court;
2. A report of commissioners was returned

and if an appeal is improperly refused

the remedy of the aggrieved party is by an
to the court of probate on the 9th of

application for a mandamus to compel the
August, and was in fact accepted by the

allowance of the appeal.

court on that day, but no entry was made
at the time except a memorandum on the APPLICATION OF MONEY.
back of the report that it was received on
that day. It was then laid with papers The plaintiff as accommodation endorser
that were ready for the clerk of the court

had been compelled to pay a protested
to record. On the 4th of September it note on which the defendants were prior
was discovered that no minute of accept-

accommodation endorsers. He held as
ance had been made, and the judge then security a mortgage made by another
added to the former memorandum “and party for the accommodation of the
accepted." Held that the report was to makers, which proving defective he re-
be taken as accepted on the 9th of August

leased it and the mortgagor made a new
and not on the 4th of September. ib. mortgage to a savings bank for a loan of

larger amount than the debt, of which

loan the plaintiff received and retained

the exact amount of the protested note,

but there was no agreement as to how the

money should be applied. In a suit

against the defendants as endorsers of the

note, it was held—1. That on all the facts,

which were reviewed by the court, the

note must be regarded as paid by the

money received by the plaintiff from the

security. 2. That if the money was to be
1. A horse or colt at large upon the regarded as only security in his hands, to
highway contrary to law is a nuisance. which the defendants would become enti-
Baldwin v. Ensign.

113 tled in equity on being compelled to pay
2. Where such an animal so at large does the note, the law would not allow him to

an injury to person or property the owner recover of them the amount of the note
is liable without reference to the question and leave them to recover back from him
whether the animal is vicious. The dam- the money in his hands, but would require
age is regarded as the consequence of the him to apply the money directly to the
negligence of the owner in allowing the payment of the note. Rowland y. Smith.
animal to be improperly at large. ib.


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