New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1895-07-02
NOT TOO NEAR THE SCHOOL.
AN IMPORTANT DECISION ON AN EXCISE
QUESTION.
IF THE PLACE WAS LICENSED AT THE TIME OF
TIE PASSAGE OF THE PRESENT ACT THE
200 FEET LIMIT DOES NOT HOLD
WHEN APPLICATION FOR RE-
NEwAI. IS MADE-TIIE sU-
PERTOR GENERAL


TERMS OPINION.
The General Term OF the Superior Court handed
down a decision yesterday reversing the action vi
the Excise Commissioners in declining 70 grant IL
license for a barroom upon the ground that 'he
saloon was within eighty feet OF the entrance 10
school building The decision Is OF great interest
to barroom-keepers as 1t Is said mat ABOUT one
thousand three hundred places. representing property
valued at sl.5Ooco. are affected by the decision.
The question was raised upon construction Oh
Cbapter 4Ol Section g. Laws OF ls'2, which pro-
v,des that mo person or persons who shall not nave
been licensed prior to the passage oil TINS ACT snail
hereafter be licensed to sell strong or spirituous
louors or wine In any building not used for hotei
purpos,s and for which license does not exist AT
the time OF the passage OF this act winch Shah Nv
on the same street or avenue ana WITHIN sW iee'
of building occupied exclusively as church or d
schoohousc"
The construction OF this section has led 10 diner
ences of opn,on and in consequence. the matter
has been called to the attention OF the courts on
applications against the Excise Board The case III
which the General Term has decided the ques'io"
u.os brought by Thomas Cairns. lie asked for
writ of certorari to review the proceedings OF 'he
Excise Board In refusing to grant him license
,oon the ground that the barroOm was WITHIN
eighty feet OF the entrance to ST. Agness parochai
school The writ of certlorari was granted oy
Judge McAdam. and made returnablc AT the zen
era. Term where it vas heard by Judges freedmah
and Gildcrsleeve.
June 49, 1892. Judge McAdam nei Il" opi''io"
In which he said:
The inhibition contained in Section 43 Of the act
Of 1892 Chapter io, applies only TO buildings iOr
which license did not exist at me time OF ,ns
the former llcensee OF applicant is material. 80
when the act took effect and the applicant pos,
sesses the qualifications required by section 10 OF
the act.
This construction OF the Law followed until
the new Excise Board came into power. when Its
attorney. Mr.. Page wrote opinion In which ne
said
ordinarily where a construction has been given TO
a statute By a court % competent Jurisdiction the
Roard should follow that decision until a higher
c"nr; has decided the Law BE- otherwise. but This
construction Of the statute Is manifesty "rrore-
Gus tina, II should De d!sregarded "a an exposition
OF law.
The General Term decision was written by Judge
elders ,ceve In which Judge Freedmen concurs'
sustaining the law laid down by Judge McAdam in
1882 reversing the action Of the Board. with So
COSTS and directing that man Janus Issue reluir-
ing the Board TO grant Cairns license The Gen
eral Term
Applyins to the section OF the statute under con
s,lerltlon iae w'l-establlshed ru'es 81 SohsItue-
NJ The Legislature. in enaciing Section a. 10 pro-
,,dc thar buildings within the prohibited Instance.
feet used Tor MOTEL plIpysss t9F hSh noi bs
a~cc,ei by H. and that "a 10 sucn buIlilsS any
person otherwise eligible saol.d ha's rs IA,
me fair reading Of the prohibition Gear l1,,
c,tcs INA, mo Legislature intended not 10 defroy
property rights in places OF business wh'on men, W ~
iNen established bu that no other places shou,n os
H.ns.l c',hln Inc prohibited other than those
witch were licensed ~ ne time ~ IN" passage Vi
the act ,.
Ex-Lieuienlnt-Governor sheenan' oa"ue' NJ
-,v.- and = J. Nvsrs represented Cairns. ana said
ina, me case would probably go - ne Gorr t 2,
Anoeals but that they believed the pen''a' ''''"
t'csi5n would be sustained