#### The People ex rel. Richard W. Larkin, Relator, *v.*Carlos A. Hull, as County Clerk of Genesee County, Respondent.

(Supreme Court, Erie Special Term,

March, 1898.)

Liquor Tax Law — A special agent subpoenaed by a district attorney is entitled to full witness fees.

A special agent of the state excise department, appointed under the Liquor Tax Law (Laws of 1896, chap. 112), is not bound to take any part in the prosecution, by a district attorney, of an. alleged violation of the statute; and, when duly subpoenaed to testify as a witness before the grand jury as to a violation which he has investigated, is entitled to his legal fees and the court will compel the proper county clerk to certify to the days of attendance and the number of miles traveled.

Motion by the relator for a peremptory writ of mandamus.

J. M. Condon, for relator.

Safford E. North, for respondent.

White, J.

The relator is a special agent in the department of excise in this state, and the respondent is county clerk of Genesee county.

In the discharge of his duty, the relator investigated an alleged violation of the Liquor Tax Law in Genesee county, and made a complaint against the alleged offender, to the district attorney of that county, which complaint was presented by the district attorney to a grand jury.

The district attorney subpoenaed the relator at Hew York city to appear and testify as a witness before the grand jury, and pursuant to the subpoena- the relator traveled from Hew York to Batavia for that purpose and testified before the grand jury. His fees, as such witness, if he is entitled to any, amount to $34.30, and it is the intention of the relator to pay over to the. state of Hew York the amount of those fees if he shall receive them.

The relator requested the respondent to certify to the number of days he, the relator, attended before the grand jury and to the number of miles he had- traveled to so attend,' which the respondent refuses to da, upon the ground that the relator is not entitled to charge or receive fees or mileage as a witness for attendance before *64the grand jury, within.the meaning of sections 609 and 616 of the Code of Criminal Procedure; the respondent’s contention in that behalf being that the Liquor Tax Law imposes upon the relator, as a special agent of the excise department, the duty so to attend and testify, at the expense of that department.

It is understood to be the universal practice or custom now of counties to pay witnesses for the People who are not'special agents in the excise department, situated as Larkin was, when subpoenaed by the district attorney of Genesee county, that is, witnesses'who come from another county and travel a considerable distance to attend and testify before the grand jury, fees and mileagei for so attending and testifying; and for the purposes of this case it is assumed that that practice or custom is warranted by section 616 of the Oode of Criminal Procedure, and that the proceeding before the grand jury is the trial of a criminal action within the meaning of that provision of the statute. Ho objection to that construction of it is made by the respondent.

The refusal of the respondent, therefore, to give the "certificate asked for by the relator, he having made proof of the fact of his attendance and the number of miles he traveled for that purpose in the manner .prescribed by law, must be justified, if at ’all, by the Liquor Tax Law.itself.

The object, sought to- be attained by that law, is primarily to tax and regulate the traffic in liquors in such a manner as to- insure uniformity in the application and enforcement of the Excise Law in place of a great diversity in those respects, which prevailed before its enactment by reason of sympathies and prejudices which existed in different localities and which, it is generally conceded, many times caused acts of favoritism and injustice .on the part of" the officials charged with its administration.

The only provisions contained in the Liquor Tax Law which can be said to bear upon the question presented for solution here, are found in sections 10, 35, 36, 31, 38 and 12.

. Such provisions are, in substance, that special agents shall be appointed by the state commissioner, that they shall receive a salary of $1,200 a year, payable in monthly installments, together - with such necessary expenses as they may incur by direction of the state commissioner in the performance of the duties "of their office^.

The relations between the commissioner and those agents are made confidential by the statute, and they are required, under his direction, to *investigate*all matters relating to the collection of *65liquor taxes and penalties under the act, and in delation tq the compliance with law by persons engaged in the traffic in liquors; they may also investigate other matters in connection with the sale of liquor, and, with certain county and municipal officers, are required to notify district attorneys of violations of the statute which may come to their knowledge; that the offense investigated by the special agent, as far as we are now interested in that question, shall be prosecuted by' indictment by a grand jury of the County in which the crime was committed, and all fines .and costs imposed and penalties recovered by civil actions are to be paid, in the first instance, to the treasurer of the county where the offender is prosecuted and convicted, or penalties are collected, and are then apportioned and divided between the state and county as provided by the law.

Criminal actions are, generally speaking, local, and the expenses thereof are borne by the counties where they are tried. There is no provision either in the Liquor Tax Law or any other statute, imposing upon special agents of the excise department any duty or obligation to appear as witnesses, before grand juries or at all, otherwise than-under and by virtue of subpoenas. In-that respect they are situated precisely like other witnesses and are compelled to so attend and testify in the same manner. I am of the opinion that, if the legislature had intended to place such an obligation upon such special agents, the law would have so provided.

There is an entire absence of statutory law making it a duty of a special agent to take any part in the prosecution of violations of the Liquor Tax Law, after he shall have investigated the matter and made a report to the district attorney. In that respect the duty of a special' agent is exactly the same as that of other county and municipal officers, as has already been said. The only officer or person competent to enforce the law by criminal action is the district attorney.

The fact that the relator, by his original investigation and report of the Petrie case, thereby made himself an indispensable witness for the People; or that he now *understands*that he is obliged to turn over to the state the fees, if any, which he may receive, does not seem to me to be relevant to this discussion. There seems to be no basis for such an understanding, and, therefore, it is but an erroneous conception of the law.

Of course, if, as the respondent contends, the state or excise department has paid the expenses of the relator in going to Batavia *66from New York to testify, and the county is required to pay the same expense to the relator, ’he will receive a double payment of those expenses; but, as I construe the law, that is not the cáse. The expense of a witness once paid by the county to the witness, should not, and, it is assumed, will not, be again paid to him by the state or by the excise department. The *expense*incurred and paid by a . witness in such a case is not such as section 10 of the Liquor Tax Law provides for, because it is, not an expense incurred by direction of the state commissioner, within the meaning of that section of the statute.

The state commissioner not only does not direct or command the special agent to appear and testify before the grand jury but would have no right or authority to'do or to interfere in any way to prevent an exact and prompt obedience to a subpoena served upon a special agent in such a case.

The right to a fee for attendance is given expressly by statute to all witnesses alike who attend and testify before á grand jury.

In my opinion the writ asked for should be granted.

Writ granted.