People v. Schwartz

183 A.D. 367, 36 N.Y. Crim. 536, 169 N.Y.S. 954, 1918 N.Y. App. Div. LEXIS 7920

Opinion

Rich, J.:

The defendant appeals from a judgment of the Court of Special Sessions, convicting her of a violation of the Liquor Tax Law, in having, on August 22, 1917, sold hard cider without having paid the tax required by section 8 of said law

Footnotes

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* and without having obtained and posted the liquor tax certificate as required in and by said law. There is no dispute as to the facts, and the question presented is whether hard cider is a liquor, the sale of which is prohibited by the statute. The defendant concedes that hard cider is a fermented liquor containing more alcohol than beer, but contends that the use of the word “ and ” in the statutory definition of the word “ liquors ” (which in section 2 of the Liquor Tax Law [Consol. Laws, chap. 34 (Laws of 1909, chap. 39), as amd. by Laws of 1910, chap. 485] is as follows: “The term ‘ liquors,-’ as used in this chapter, includes and means all distilled or rectified spirits, wine, fermented and malt liquors ”) requires proof that the cider was both fermented and malted before her conviction was justified, and that hard cider is not, and was not proven to be, a malted liquor. Prior to the enactment of the present Liquor Tax Law, as originally enacted (Gen. Laws, chap. 29; Laws of 1896, chap. 112), the question as to whether the beverage alleged to have been sold without having obtained a license therefor, was a “ strong,” “ spirituous ” or “ intoxicating ” liquor, was a question of fact, and upon proof that the beverage was hard cider containing a percentage of alcohol sufficient to produce intoxication, it was held that such sale constituted a violation of the statute prohibiting the sale of strong, spirituous and intoxicating liquors. The Liquor Tax Law has omitted the words “ strong,” “ spirituous ” and “ intoxicating ” as applied to the prohibition of the sale of liquors without having paid the tax, and by this intended omission and the prohibition of traffic in all alcoholic beverages within the definition of “ liquors ” the question of whether the beverage sold was or was not intoxicating has become immaterial. (People v. Cox, 106 App. Div. 299.) It was ever the intention and purpose of the Legislature, in its regulation of the liquor traffic, to suppress intemperance, so far as possible, by prohibiting the indiscriminate selling and giving away of such alcoholic liquors as would or could result in the intoxication of the persons indulging in their use, and there can be no doubt that the Legislature intended by its definition of “ liquors ” in the Liquor Tax Law to include within its prohibition all alcoholic beverages whether fermented, malt, or both. The conclusion contended for by the appellant, that the Legislature intended to prohibit the sale or giving away of fermented and malt liquors containing two or three per cent of alcohol as the result of fermentation, and to authorize the sale of hard cider containing, as in the case at bar, six and three-tenths per cent alcohol as the result of fermentation alone, is incapable of belief. In the Cox case, which involved the sale of a beverage called “ malt rose,” containing between seventy-four hundredths of one per cent and one and eighteen hundredths per cent in volume of alcohol, the court in considering the provisions of the statute recognized no distinction between a fermented and fermented and malt liquor, saying: “If the alcohol contained in the malt rose as sold was produced therein by fermentation of the ingredients forming it the beverage comes within the plain terms of the statutory definition of liquor.” It is conceded in the instant case that the alcohol contained in the hard cider sold by the appellant was the result of fermentation, and the contention that the statute could not have meant to include within its provisions any liquor which was fermented but not malted (because there are many such, including spruce beer, ginger beer, kumiss and similar beverages, the sale of which the Legislature has never sought to regulate), is fully met by the statement in the Cox case that “A construction of the act that would exclude from its terms all beverages that had not of themselves been rectified, distilled, fermented or malted would deprive the act of much of its value as a police measure.” In the interpretation of statutes that construction should be adopted which will harmonize best with the context and promote in the fullest manner the apparent policy and object of the Legislature. (Manhattan Co. v. Kaldenberg, 165 N. Y. 1; Matter of Mathews, 59 App. Div. 159.) Words, phrases and sentences must yield to the intention of the Legislature and the object of the statute. (People ex rel. Gress v. Hilliard, 85 App. Div. 507; affd., 176 N. Y. 604; Topharn v. Interurban Street R. Co., 96 App. Div. 323; Matter of Board of Rapid Transit R. R. Comrs., 128 id. 103; Hurst v. City of New York, 55 id. 68; Manhattan Co. v. Kaldenberg, supra.) The cases are numerous in which the courts have construed the word “ and ” as “ or,” and vice versa, the words being convertible, and a substitution of the one for the other being frequently resorted to in the interpretation and construction of statutes when the evident inten tion of the Legislature requires it. (People, ex rel. Municipal Gas Co. v. Rice, 138 N. Y. 151; 1 Words and Phrases Judicially Defined, 387-389; Ludlow v. City of Oswego, 25 Hun, 260.) Such rule applies to criminal as well as civil statutes. (People v. Lytle, 7 App. Div. 553,562,563; 1 Words & Phrases Judicially Defined, 389.) In Matter of Stiller (175 App. Div. 211) a special agent of the Excise Department made a complaint under the provisions of section 33 of the Liquor Tax Law, as amended by chapter 614 of the Laws of 1913* (which provides that upon the verified complaint of a special agent setting forth facts establishing that “ liquors ” are stored or kept in any place for the purpose of an unlawful sale, a county judge may issue his warrant to a peace officer or special agent, commanding a search of the premises and a seizure of such liquors if found), alleging upon information and belief the deposit of liquors by one Drosos upon his premises which were not licensed, stating the source of his information to be the sale of hard cider, upon which complaint a warrant was issued by the county judge of Broome county. The officer executing the warrant found three-fourths of a barrel of hard cider upon the premises, which he took into his possession. Upon the return of the warrant Drosos appeared and moved to dismiss the complaint and vacate and set aside the warrant, the contention being that the cider taken, or hard cider generally, was not a liquor within the meaning of the Liquor Tax Law, and, therefore, the complaint did not state facts sufficient to give jurisdiction to the county judge to issue such warrant. The motion was denied, and upon appeal the order was sustained. In that case Mr. Justice Woodward, who wrote for the court, said: “ Without going to the extent of holding that the court might take judicial notice of the fact that hard cider is a liquor within the meaning of the Liquor Tax Law it is sufficient for the purposes of this appeal to say that we are not prepared to hold that where the affidavits show that hard cider is actually sold in a place which is without a license there is such a lack of jurisdictional facts as to warrant the refusal of a warrant for search and seizure. Upon ajull argument of the question, and in support of the policy of the law, it may be held that hard eider is within the letter and the spirit of the act, and that it is subject to confiscation the same as other liquors under the provisions of the act. Cider, considered merely as the juice of apples, may not be a fermented liquor, but when it becomes hard cider it has undergone a distinct chemical change, and we should dislike to hold judicially that it is not a liquor within the meaning of the act.” We are likewise unwilling to adopt a construction of the statute which will exclude hard, fermented cider, containing more than six per cent of alcohol, from its prohibitive provisions, and conclude that the word “ and ” in the statute must be read as the word “ or ” and that hard, fermented cider is within both the spirit and letter of the act.

The judgment of conviction is affirmed.

Jenks, P. J., Thomas, Mills and Putnam, JJ., concurred.

Judgment of conviction of the Court of Special Sessions affirmed.

Amd. by Laws of 1917, chap. 623,-[Rep.

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Since amd. by Laws of 1916, chap. 417.— [Rep.