1 Liquor Tax Rep. 273 | N.Y. App. Div. | 1898
The respondent, as special • deputy commissioner of excise, has applied to this court upon petition and affidavit for an order restraining the appellant from trafficking in liquors in the annexed district of the city, of Hew York, until the liquor tax assessed upon her premises shall have been paid and a liquor tax certificate obtained in pursuance of the law. A certificate was- issued to her in due form by the proper authorities, on the 20th of April, 1897, authorizing her to sell liquor for one year from the 1st of May, 1897. It is conceded that this certificate was valid at the time that it was issued, and it is not claimed that the appellant has in any way violated the Liquor Tax Law. The claim is that, by reason of the provisions of the amendments to that law which took effect on the day on which the certificate was issued to her, and which became operative live or six days afterwards, a certificate, which was valid when it was issued has ceased to be valid, and for that reason the commissioner of excise is entitled to an injunction to restrain her from continuing to sell liquor under its authority. Ho action has been commenced, but this is a special proceeding begun pursuant to section 29 of the law (Chap. 112, Laws of 1896) providing that if any person shall unlawfully traffic in liquor without obtaining a liquor tax certificate, the proper person, who in this case is the special deputy commissioner, may present a verified petition to a justice of the Supreme Court or to a Special Term of the court for an order enjoining such person from trafficking in liquor; and the court is authorized, if it is satisfied that such person is so doing, to issue the injunction. This mode of procedure is established by the statute, and exists only by its authority; and all the power which the court has to issue an injunction in this special proceeding, no action having been commenced, is derived solely from it. It is very doubtful whether this case comes within the statute, because the claim of the respondent is not that Mrs. G-iese is trafficking in liquor without obtaining a liquor tax certificate, but that the tax certificate which she has obtained and which undoubtedly was valid when it was issued, has, by the course of subsequent legislation, become invalid.
But, passing that point, which is not insisted upon by the appellant, it is necessary to consider whether, in fact, the appellant had a valid tax certificate, and whether that certificate, if valid when it
The certificate, when it has been issued, constitutes a contract
It appears in this case that Mrs. Griese was the owner of premises situated in that district of the city of the city of Hew York which was annexed in the year 1895. On the 20th of April, 1897, she applied in proper form for a liquor tax certificate to entitle her to traffic in liquors from the first of May following. The tax required from her at that time was $100. This sum she paid, and on that ' day a certificate in due form was issued to her. There is no doubt, and it seems to be conceded, that the certificate then issued was valid, and, in the absence of any change in the statute, would have been sufficient to protect her in the lawful conduct of the business for the year during which it was in force. On the day on which the application was made an amendment to the Liquor Tax Law became a law, by which it was provided that if, since the last State enumeration, the boundaries of a city should have been changed by the addition of territory not in the same judicial district, such annexed territory should not be deemed a part of the city for the purpose of determining the amount of excise tax therein, but the inhabitants of that territory should be enumerated for the purpose of determining the amount of the tax, and when the enumeration had been had the tax assessed therein should be the same as that jirovided for in other places containing the same population. (Laws of 1897, chap. 312.) Pursuant to that amendment an enumeration was taken under the authority of the commissioner of excise, which was completed on the 25th day of April, 1897, and it was determined by him that the amount of the tax to be paid by persons in the annexed district in which Mrs. Griese lived and did business should be $350 instead of $100 as it had been. Ho notice seems to have been given of this
For these reasons it was error to grant this injunction, and the order should be reversed and the petition for an injunction dismissed. As this is a special proceeding, costs as of an action should be granted to the appellant.
Van Brunt, .P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Order reversed and petition for injunction dismissed, with costs as of an action to the appellant.