127 N.Y.S. 61 | N.Y. App. Div. | 1910
Lead Opinion
As a result of the census taken in 1910 under the provisions of the acts of Congress . thereto applicable, it was found that the population of the borough of Brooklyn in the city of Hew York amounted to 1,634,351 persons: This .census was completed prior to'September 15, 1910. By section 9 of the Liquor Tax Law of this State (Consol. Laws, chap. 34; Laws of 1909, chap. 39) the liquor taxes are payable in advance on the fifteenth day of September of each year. ^' The relator Ahlers is engaged in business in the borough of Brooklyn as'retail dealer in liquors. He applied for the issuance to. him of a liquor tax cJrtificic»(e and tendered the amount of. $975 in payment of the tax thereon. 1A. certificate was refused unless -the relator paid the sum of $1,200. Tfite tender made by Ahlers was of an amount legally sufficient for the pmrpose, unless the rate of liquor tax payable in the borough of Brooddyh had been automatically advanced to the sum of $1,200 by the nncrease in population shown by the census aforesaid; The contentions ..of the State Department of ■ Excise is that there was such an autbqnatic advance. The relator thereupon brought this proceeding tó-, review the determination of the State Commissioner of Excise'yjis to the amount legally payable on the liquor tax certificate. It waXlield at Special Term that the amount so payable in advance on September 15, 1910, was the sum of $975. (69 Misc. Rep. 177.) Erorhj. that decision this appeal was taken to this court. The question involved is one of statutory construction, and arises from the true in terpr motion of subdivision 8 of section 8 of the Liquor Tax Law (as amd. by Liaws of 1909, chap. 281, and Laws of 1910, chap. 485). Before passing mq a consideration of the language of the statute which gives rise to this controversy, it may be well to make a few observations relative to the general aspects of the statute, in question. This statute is not a new enactment. It was intended as a coherent compilation or consoli
The rules of construction which apply to a statute which is a reenactment of preceding statutes are so well settled as to be recognized generally on their mere statement. The meaning of the language of the re-enactment is to be found in the intent of the preceding statutes so ré-enacted. In- ascertaining this intent the history of the various enactments is to be considered. In their grouping together in a consolidation it is to be deemed that the. Legislature has intended to preserve the ■ preceding enactments in force 'to the fullest extent in which they are consistent mutually.
The portion of the' consolidated statute here directly involved reads as follows : “ The amount of excise tax in every place in this State shall remain the same as assessed for the year- eighteen hundred and ninety-nine, until changed by an. enumeration authorized by the State Commissionér of Excise, or bjr an increase or decrease of population shown by a subsequent State or United States census, and such excise if x assessed in each place enumerated under this-subdivision and asf sed in each place where a change in the population is shown bytX latest State or United States census shall be the same as that prun^ >d in subdivisions one, two, three and six of this section, for places ch -taining the same population. The excise taxes assessed under this \ apter in cities containing a population of fifteen hundred thousand oi\more, which are or shall be formed by the consolidation of territory situate in one or more counties, shall be assessed in the several boroughs or portions of the territory so consolidated to form such city at an advance of one-half in the rate over the amount at which such taxes were assessed on the thirty-
As above indicated, we must ascertain the meaning of this provision, wherever any ambiguity or conflict seems apparent, by resorting to the preceding enactments here attempted to be consolidated. By chapter 112 of the Laws of 1896 the Legislature made an original act treating the subject-matter of liquor taxes on a general basis, instead of leaving it to be regulated as theretofore in the various localities largely by special statutes. This act became a law on March 23, 1896. It provided (§■ 31) a general scheme of tax or excise payments, varying according to the population of the respective places in which the business of liquor selling was to be carried on. It fixed rates from $800 as the maximum to $100 as the minimum. In adjusting these rates it fixed as the place for the ■ maximum a- city having a population of 1,500,000 or more according to “ the last State census,” and, in adjusting the other .rates, it chose for classification cities and villages with described population ' as shown by “ the last State census.” It did not attempt to carry this classification as to population beyond villages having not more than 1,200 population. As to villages not having that population, and as to every other place not in a city or village, it fixed the minimum rate of $100. The amount of the population was made ascertainable by “ the last State census,” for that census was the latest official census then in existence. (See Laws of 1892, chap. 5.) An enumeration of the inhabitants of the State was directed to be had in 1905 by section 4 of article 3 of the Constitution of 1894, and the same section provided for an enumeration every tenth year thereafter. Therefore the Legislature, in adopting as the basis of its classification as to population “ the last State census,” adopted the latest official census available, as the next latest' official census was the decennial census of the United States which had been, made in 1890. Where, however, the State census,of 1892 did not show the population of a city or village, it was provided that the population should be determined by the last United States census! (Laws of 1896, chap. 112, § 11.) The statute, as then enacted, contained no scheme for any advance or decrease in the rates of the liquor tax based upon ■ any subsequent increase or decrease of population in the classified
While this statute was in force in 1897, the Legislature enacted the Greater Hew York charter (Laws of 1897, chap. 378), which consolidated into one city several pre-existing cities of varying populations, and a very large number of incorporated villages, likewise of varying populations. The result of this consolidation would have been to bring apparently under the maximum rate of liquor tax a large number of communities to which it had not been the legislative intent to make such rate applicable. The Greater Hew York charter was to go into effect on January 1, 1898. To meet this situation chapter 442 of the Laws of 1897 was enacted. This act is entitled as “ an act supplementary ” to the Liquor Tax Law of 1896. It provided that, so far as the Liquor Tax Law was concerned, the rate of liquor tax payable in the localities consolidated into the new city of Hew York should continue at the same amount as was payable in these separate localities on December 31,1897. In no other particular, however, were these localities taken out of the general scope of the act of 1896. In 1900 an attempt was made for the first time to provide for an automatic scheme for. an increase or decrease of the rate of liquor tax in the various localities of the State upon the basis of an increase or decrease in population. This scheme was declared in chapter 367 of the Laws of 1900, which, in part, amended subdivision 7 of section 11 of chapter 112 of the Laws of 1896, as it stood in form as amended in the meanwhile. The new scheme was declared in language as follows: “ The amount of excise tax in every place in this State shall remain the same as assessed for the year eighteen hundred and ninety-nine, until changed by an enumeration authorized by the State Commissioner ot Excise, or by an increase or decrease of population shown by a subsequent State or United States census, and such ¿xcise tax assessed in each place enumerated under this subdivision and assessed in each place where a. change in the population is shown by the latest' State or United States census shall be the same as that provided in subdivisions one, two, three and six of this section, for places containing the same population.” Chapter 115 of the Laws of 1903 re-enacted this provision in the same form and, as will hereafter appear, added
A determination of the meaning and scope of this-new provision as it was enacted inT900 determines necessarily.this present controversy, for, as before indicated, this language which is re-enacted in 1909 in the very same words, means the very same thing as it meant when declared originally in 1900. It will be noticed that this then new provision declared in most comprehensive terms that it applied to “ every place in this State.” A broader’ term than “ every place in this State ” could not have been used easily, if at all. The phrase “ every place in this State” was clearly intended to mean “ every, place in this State” subject to. the provisions of the Liquor Tax Law. TJnmistakably it applied to the “places” described in the supplementary act of 1897, which were located within the territory of the greater city of Mew York after January 1, 1898. The suppletnentary act of 1897'did not take these “places” out of the provisions of the general act of 1896, but, on the contrary, simply continued and preserved them for the purposes of liquor tax rate in the same status of “place” as they had under the act of 1896, notwithstanding the consolidation of territory effected on January 1,1898, by the Greater Mew York charter.
' It seems, indisputable therefore, that the new scheme of automatic increase or decrease in the rate of the liquor tax “ in every place in this State ” was intended to apply in the city of Mew York as well as in every other place in the State. ■ The scope of the application of this new matter being thus determined, we are brought to a consideration • of the-meaning of this new matter so far as it provides for a basis of computation of population for its going into effect. In the language of the statute the basis provided was that “ shown by a subsequent State or United States "census,” or “by the latest State or United States census.” When this particular enactment was made, the latest State census was that of 1892 and the latest United States census that of 1890. The Legislature knew, that the next census would be the decennial census Of the United States (U.. S. Const, art. 1, § 2, subd. 3) to be made in 1900, in a few months after the enactment of the amendatory statute, which in turn would be followed by a State census in 1905, under the direction of the
As we construe this meaning, the rate payable for liquor tax in the borough of Brooklyn in advance on the 15th day of September, 1910, is to be determined on the basis of the population of said borough as shown by the United States census of 1910. These views require that the order and determination of the Special Term be reversed, and writ of certiorari be dismissed, with costs.
Jeitks, Thomas and High, JJ., concurred; Burr, J., .concurred in separate memorandum.
Concurrence Opinion
(concurring):
. I concur, but venture to suggest that any confusion arising from the language of subdivision 1 of section 8 of the Liquor Táx Law, which specifies the basis for fixing the amount of the tax as the population determined by the “last State census,” may be avoided if we keep firmly in mind that subdivision 1 is dealing with a condition existing at the time that the law became operative, while subdivision 8 deals with a condition subsequently to arise. As Mr. Justice Carr clearly points out in his opinion, when the act of 1900 was passed the Legislature knew that the last State census* was in 1892, and that the decennial United States census was about to be taken. So it may'be urged that when the act of 1909 was passed the Legislature knew that the most recent determination of population was that obtained through the State census of 1905, and it, therefore, referred to that as a basis for fixing the amount of the present tax. In providing for automatic changes in the future, it knew of the obligation to take a United States census in 1910, and another State census in 1915, and it, therefore, referred to each of these methods of enumeration as- a basis of computation.
Order and determination of the.Special Term reversed, and writ of certiorari dismissed, with costs.
