81 N.Y.S. 567 | N.Y. App. Div. | 1903
This proceeding was instituted by the State Commissioner of Excise by verified petition and an affidavit of the facts which was made a part of it, accompanied by an order requiring the appellant to show cause why his liquor tax certificate should not be revoked, pursuant to the provisions of subdivision 2 of section 28 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1901, chap. 640). On the return day designated in the order to show cause, the appellant having-objected to the jurisdiction of the court and having also by objection raised the question that the provision of the law requiring him to present and file a verified answer to the petition, or in default thereof that its averments would be adjudged to be true, is unconstitutional (Const, art. 1, § 6), which objections were overruled, and having thereupon refused to present and file an answer, the order appealed from was granted revoking the certificate for violations of the law set forth in the petition and affidavit.
In Matter of Cullman, Micha Certificate (76 App. Div. 362; affd., 173 N. Y. 610) we held that a formal petition made by the State Excise Commissioner setting forth the essential facts upofi information and belief, when accompanied as in this instance by an affidavit containing positive averments of the facts within the personal knowledge of the affiant, constituted a sufficient compliance with the requirements of the statute even prior to the amendment of 1901. In that case the appellant was deemed to have waived the constitutional question by the filing of a verified answer. The question is, however, squarely presented on this appeal and must now be determined.
The liquor tax certificate issued under the existing law is essentially different from the former license. The license was a mere personal privilege which the holder took subject to all the conditions of law by which it was rendered revocable. The certificate represents a species of property which is transferable by the owner and which is accordingly protected by the general rules of law in any proceeding having for its object the forfeiture or destruction of the rights which it confers. (Matter of Lyman, 160 N. Y. 96; Niles v. Mathusa, 162 id. 546.) While it is undoubtedly true that the Legislature which gave the certificate has general power to provide in what manner and under what circumstances it may be revoked, and while it is equally true that the holder takes it subject to the provisions of law attached to it in that
It is contended by the learned counsel for the respondent that what has been quoted comprises dictum merely, and that the decision in the Cargill case was based wholly upon the insufficiency of the petition. Judge Landon dissented upon the ground substantially that the holder of the certificate in accepting it accepted the condition imposed by the Legislature as to the form of inquiry for violations. Judge Martin concurred in Judge O’Brien-’s opinion solely upon the ground that the petition was inadequate. The remaining members of the court concurred without limitation or qualification, and the views cited, constituting as they do in any event a. powerful argument against the constitutionality of the provision under consideration, may well be regarded as an expression of the opinion of a majority of the court.
It is further contended on behalf of the respondent that inasmuch as the order appealed from recites that the learned justice at Special Term offered to receive an unverified answer from the appellant, the question of the unconstitutionality of the act is unavailing to him. Such an offer was not effective to cure the act or to dispense with the necessity of taking proof of the truth
The order should be reversed.
Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.
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Order reversed, with ten dollars costs and disbursements. Order to be settled before Mr. Justice Hirschberg.