Opinion
June 8, 1906.
Rowland Miles, for the appellant.
S.B. Mead [ Herbert H. Kellogg with him on the brief], for the respondent.
That parties may stipulate what the law is that governs their dispute, as well as what the facts are from which it arises, cannot be doubted. And the courts should and will give as complete effect to the former as to the latter class of stipulations.
The 11th paragraph of the stipulation upon which this proceeding was submitted, states that the defendant is and has been for twenty years last past the owner of the premises where liquor is sold under the liquor tax certificate by this proceeding sought to be canceled, and that on such premises there is a building which has been used by the defendant and his predecessors as a hotel, in which liquor "has been legally sold continuously, without interruption, for a period of more than forty years."
It is our view that if the sale of liquor was legal during the time referred to in the stipulation, it was legal at the time of the institution of this proceeding. It is the contention of the petitioner that the amendment of the Liquor Tax Law (General Laws, chap. 29; Laws of 1896, chap. 112), made by chapter 104 of the Laws of 1905, was such as no longer to allow the lawful sale of liquor on the defendant's premises, described in the petition and mentioned in the 11th paragraph of the stipulation. Subdivision 1 of section 24 of the Liquor Tax Law, prior to the amendment of 1905, provided: "Traffic in liquor shall not be permitted: 1. In any building or upon any premises established as a penal institution, protectory, industrial school, asylum, State hospital, colony or institution established for the care or treatment of epileptics, or poorhouse, and if such building or premises, other than a county jail or State prison, be situated in a town and outside the limits of an incorporated village or city, not within one-half mile of any building or premises so occupied, provided there be such distance of one-half mile between such building and premises and the nearest boundary line of such village or city." (Laws of 1896, chap. 112, § 24, subd. 1, as amd. by Laws of 1897, chap. 312.)
As amended by chapter 104 of the Laws of 1905 the subdivision reads: "1. In any building or upon any premises or lands established as a penal institution, protectory, industrial school, asylum, State hospital, State agricultural and industrial school, colony or institution established for the care or treatment of epileptics, or poorhouse, and if such building, premises or lands, other than a county jail or State prison, be situated in a town and outside the limits of an incorporated village or city, not within one-half mile of any building, premises or lands so occupied, provided there be such distance of one-half mile between such building, premises and lands and the nearest boundary line of such village or city."
It is to be seen that aside from the added reference to the State Agricultural and Industrial School, the only change in the subdivision is the addition of the words "or lands" after the word "premises" in three places and of the words "and lands" after the word "premises" in another place. The incorporation of the term "lands" into the phraseology of the section, however, does not extend its meaning. For "premises" and "lands" are synonyms; if there is a distinction, it is that the word "premises" is the more inclusive. Bouvier and Worcester define the latter as "lands and tenements;" the Century Dictionary as "lands and houses or tenements," and the Standard as "land or lands; land with its appurtenances, as buildings."
It matters little, therefore, whether defendant's hotel, where he sells liquor, is within or without the half-mile limit; if his traffic in liquor was lawful before the amendment of 1905, and the stipulation says it was, it is now lawful, no matter whether he is within a half-mile of any of the buildings of the Long Island State Hospital or only within a half-mile of contiguous land owned and used by it.
The order must, therefore, be reversed, with costs.
HIRSCHBERG, P.J., WOODWARD, JENKS and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and proceedings dismissed, with costs.