La Croix v. 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 such 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. INDEX TO THE FORTY-NINTH VOLUME. ACCEPTANCE OF COMMISSIONERS' REPORT. 1. The statute (Gen. Statutes, tit. 18, ch. 11, sec. 15.) provides that when any person shall be aggrieved by the allowance or disallowance of any claim by commissioners on an insolvent estate, he may, within twenty-one days after the report of the commissioners is accepted by the probate court, appeal to the next Superior Court. Held-1. That as the court has the power for cause to reject the entire report, the acceptance of the report intended by the statute is a formal acceptance, and not its mere reception on its being returned by the commissioners. 2. That such an acceptance is complete and operative although no record or entry of it is made at the time. Bailey v. Whitman. 2. A report of commissioners was returned to the court of probate on the 9th of August, and was in fact accepted by the court on that day, but no entry was made at the time except a memorandum on the back of the report that it was received on that day. It was then laid with papers that were ready for the clerk of the court to record. On the 4th of September it was discovered that no minute of acceptance had been made, and the judge then added to the former memorandum "and accepted." Held that the report was to be taken as accepted on the 9th of August and not on the 4th of September. ib. ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS. AGENT. See PRINCIPAL AND AGENT. ANIMALS AT LARGE. 79 APPEAL. Where a defendant had been convicted before a justice upon a complaint and appealed to a higher court, it was held that as the appeal vacated the judgment, the case stood, as to the facts that might be proved in support of the charge, precisely as it would have done if it had been brought originally to the appellate court. 1. APPEAL FROM PROBATE. An appeal can not be taken in a probate court from the allowance or disallowance of an appeal. Elderkin's Appeal from Probate. 69 2. If the appeal is improperly allowed the aggrieved party has a full opportunity to make the question in the appellate court; and if an appeal is improperly refused the remedy of the aggrieved party is by an application for a mandamus to compel the allowance of the appeal. ib. APPLICATION OF MONEY. The plaintiff as accommodation endorser had been compelled to pay a protested note on which the defendants were prior accommodation endorsers. He held as security a mortgage made by another party for the accommodation of the makers, which proving defective he released it and the mortgagor made a new 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 regarded as only security in his hands, to which the defendants would become entitled in equity on being compelled to pay the note, the law would not allow him to recover of them the amount of the note and leave them to recover back from him the money in his hands, but would require him to apply the money directly to the payment of the note. Rowland v. Smith. 404 |