| N.Y. App. Div. | Jul 1, 1896
This is an appeal from an order of the Special Term denying a motion for a temporary injunction.
The plaintiff alleges in his complaint that he is a citizen of the United States and a resident of the State of New York. That on the 21st day of March, 1896, the board of excise commissioners of the city of New York in conformity with chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, granted him a license to conduct the business of a retail dealer in intoxicating liquors at 103 Second avenue, in the city of New York, for which he paid the sum of $250 ; that such license has never been revoked, and that the plaintiff has never done anything for which it should be forfeited. That by section 4 of chapter 29 of the General Laws, which became a law on the 23d day of March, 1896, it is provided that after the 30th day of June, 1896, the plaintiff’s right to continue in the business of a retail dealer in. intoxicating liquors shall absolutely cease and determine unless the plaintiff shall pay to the defendant’s duly appointed deputy such further sum of money as, computed at the rate of $800 per annum, would cover the period .extending from the 1st day of July, 1896, to the 30th day of April,
The plaintiff further alleges, upon information and belief, that he will not be able to pay the tax required by said law on the 30th day o; June, 1896, or to furnish the bond required, and that the enforce-m nt by the defendant, his deputies and agents, against the plaintiff, of the provisions and penalties in said chapter 29, will work irreparable injury to plaintiff, for which he has no adequate remedy at law; involving him in a multiplicity of civil and criminal actions in order to determine his rights; and further alleges, upon information and belief,, that so much of section 4 of chapter 29, above referred to, as cancels, annuls and determines on the 30th day of June, 1896, the; license granted to plaintiff by the said board of excise is repugnant to section 1 and section 6 of article 1 of the Constitution of the State of Yew York, and to section 10 of article 1 of the Constitution of the United States, and to the 14th amendment to said Constitution; and he asks relief that such portion of section 4 of chapter 29 of' the General Laws be declared null and void, and that the defendant, his deputies and agents, be enjoined from in any way interfer--" ing with plaintiff in his business of a retail dealer in intoxicating liquors until after the 21st day of March, 1897. In an affidavit-attached to the complaint the plaintiff reiterates the statements'of the complaint and sets forth his financial condition, showing that he-has no means excepting the furnishings and fixtures in his place of: business and stock of goods, and that he is largely indebted thereon,, and that if the-provisions of the law complained of are enforced, he will be without any means to pay the tax and be left heavily in debt. There is no answer to plaintiff’s complaint or affidavit upon the part of the defendant.
The act designated in the complaint as chapter 29 of the General. Laws is published in the official series of the reports of the Session Laws as chapter 112 of the Laws of 1896. It will be observed that:
Whether we • regard the law in question as strictly a tax law or not, it is evident that one of its results, if not one of its purposes, is to raise a revenue to assist' in defraying the expenses of State and local government, and it is to an extent at ■ least to be regarded as a revenue law. Therefore, the same objections apply to any efforts to. stop its enforcement and- prevent the collection of the revenue expected to be derived therefrom as are to be made to the - enforcement of any other tax or revenue law.
The defendant is the State officer who is charged with the enforcement of this law; the method provided for its enforcement is by obtaining injunctions restraining persons who have not complied with its provision's from trafficking in intoxicating liquors, and also by causing their arrest- in criminal actions for not complying with its provisions. The plaintiff is, therefore, seeking to restrain the State officer charged with enforcing a revenue or tax. law from employing the means provided by the statute for the enforcement and collection of the fee or tax provided for by the law in question. ' The rule is well settled that the courts will not interfere by injunction to restrain the collection of a tax, unless the case is brought
It has been held that an injunction will not lie to restrain the collection of a tax on the ground that its assessment is illegal. (Susquehanna Bank v. Supervisors, 25 N.Y. 312" court="NY" date_filed="1862-09-05" href="https://app.midpage.ai/document/susquehanna-bank-v--supervisors-of-broome-county-3610882?utm_source=webapp" opinion_id="3610882">25 N. Y. 312; Comins v. Supervisors, 64 id. 626. See, also, Mesick v. Board of Supervisors, 50 Barb. 190" court="N.Y. Sup. Ct." date_filed="1867-09-04" href="https://app.midpage.ai/document/messeck-v-board-of-supervisors-5461562?utm_source=webapp" opinion_id="5461562">50 Barb. 190; R., W. & O. R. R. Co. v. Smith, 39 Hun, 332; Matter of Bridgeford, 65 id. 227; Mutual Benefit Life Insurance Co. v. Supervisors, 20 How. Pr. 416" court="N.Y. Sup. Ct." date_filed="1861-03-15" href="https://app.midpage.ai/document/mutual-benefit-life-insurance-v-board-of-supervisors-5469277?utm_source=webapp" opinion_id="5469277">20 How. Pr. 416; Betts v. City of Williamsburgh, 15 Barb. 255" court="N.Y. Sup. Ct." date_filed="1853-05-20" href="https://app.midpage.ai/document/betts-v-city-of-williamsburgh-5458427?utm_source=webapp" opinion_id="5458427">15 Barb. 255.)
As stated before, the rule is one of public policy. The collection of revenue is necessary for the maintenance of the government; appropriations for the support of the State government are made in reliance upon its collection. “ If there existed. in the courts, State or National, any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary.” (Cheatham v. United States, 92 U.S. 85" court="SCOTUS" date_filed="1876-03-27" href="https://app.midpage.ai/document/cheatham-v-united-states-89244?utm_source=webapp" opinion_id="89244">92 U. S. 85-89. See, also, Dows v. City of Chicago, 78 id. 108; Hannewinkle v. Georgetown, 82 id. 547.)
It has also been held that an action to restrain a prosecution for the collection of penalties imposed by statute, on the ground: that the statute is invalid, cannot be maintained, unless the invalidity of the statute has previously been decided. (Wallack v. Society, 67 N.Y. 23" court="NY" date_filed="1876-09-19" href="https://app.midpage.ai/document/wallack-v-society-for-reformation-of-juvenile-delinquents-3611489?utm_source=webapp" opinion_id="3611489">67 N. Y. 23.)
The injunction prayed for is that the “ defendant, his deputies and agents may be enjoined from in any way interfering with plaintiff in his business of a retail dealer in intoxicating liquors carried on,” etc. The only way provided by the, law for such interference is by obtaining an injunction restraining the plaintiff from carrying on such business, or by causing his arrest for so doing. The relief then asked by the plaintiff in effect is to enjoin the defendant, his deputies and agents, from causing the arrest of the plaintiff for alleged violation of the law, and to' enjoin them from making any application for an injunction to restrain him from dealing in intoxicating liquors.
It has been held that an injunction may not be had to restrain an
It -seems to me unnecessary to cite any authority to show an injunction ought not as a rule. to be granted to restrain a person from making an application to the court to procure an injunction. An injunction to restrain the procuring of an injunction would be rather an anomalous judicial proceeding.
By a careful reading of the cases holding that injunctions should not be granted restraining the enforcement of revenue laws, it will be seen that they qualify the rule by excepting therefrom cases where the enforcement of such laws will lead to a multiplicity of suits, or where irreparable injury would result, or where the plaintiff has no 'adequate remedy by the ordinary process of law. Before an injunction should be granted in these exceptional cases it should be made clearly to appear to the court that it is such an exceptional case.
The plaintiff’s statement in his complaint that the enforcement of - this law will expose him to a multiplicity of suits I do not think can be held to be a statement of fact, but rather of the plaintiff’s con-' elusion, and in that conclusion I cannot agree with him that such will be the necessary effect of the enforcement of the law by the defendant.
A single proceeding will test the legality of the law, and it is not to be assumed that the defendant will harass and annoy the plaintiff with unnecessary litigation.
The only way in which the plaintiff alleges that he may be damaged is by an injunction obtained against him to prevent the sale of liquors without procuring a new license or certificate, or by being arrested in criminal proceedings. Neither he nor his property can be seized, or his business interfered with except by due process of law. If proceedings are taken to procure an injunction against him he will have notice and an opportunity to be heard, and make the same contention as to the constitutionality of the law in question that he seeks to make here. A criminal proceeding can only be taken against him in a court of record (§ 35), where again he will have an ojiportunity to assert the illegality of the law, so that under the ordinary forms of procedure, both in our courts of equity and of law, the plaintiff has the means of protecting himself from injury.
The order denying a motion for a preliminary injunction should, therefore, be affirmed, with ten dollars costs and disbursements.
All concurred in result..
Order affirmed, with ten dollars costs and disbursements.