115 N.Y.S. 457 | N.Y. App. Div. | 1909
This proceeding was instituted by the State Commissioner of Excise under subdivision 2 of section 28 of the Liquor Tax Law,
This court held in Matter of Cullinan [Santoro Certificate] (94 App. Div. 445) that the assignees of a liquor tax certificate should lia.ve been admitted as parties to a proceeding to cancel the liquor tax certificate where they applied for such admission, upon the ground that even though the. liquor tax certificate be not property in a strict sense, it constitutes a property right, and whether or not that property right could be forfeited without notice to them, they should be permitted, on their own application, to come in and defend and show, if they can, that there had been no violation of the statute which would justify a cancellation of the certificate. That case is quite analogous to this, for the statute did not require that the assignee of the holder of a liquor tax certificate should be made a party to the proceeding.
The authority of the Legislature under the police power of the State, to prohibit or regulate trafficking in liquor is very great, and it may be that it would be competent for the Legislature to provide that a liquor tax certificate may be canceled even without notice to the holder thereof or with notice to him and without notice, to his landlord or to the owner of the premises, and that after
We are of opinion that the court had power to allow such intervention, and that the facts required that the application be granted. It may be, as already observed, that the certificate could be legally revoked without notice to the owner of the premises or landlord of the holder of the liquor tax ^certificate, for the Legislature has prescribed that it shall be revoked on the conviction of the holder of the liquor tax certificate of the violation of the law (Liquor Tax Law, § 34, subd. 2, as amd. by Laws of 1897, chap. 312, Laws- of 1900, chap. 367, and Laws of 1908, chap. 350), and that if the particular violation be in allowing the premises to become disorderly or in permitting gambling therein, that the same disqualification shall attach to the premises with respect to again being used for trafficking in liquor as if the certificate had been revoked on that ground (Liquor Tax Law [Laws of 1896, chap. 112], § 17, subd. 8, as amd. by Laws of 1908, chaps. 144 and 350) — a question that we do not decide; but here the Legislature has prescribed a judicial proceeding for the revocation of the liquor tax certificate, and has provided that notice shall be given to the-holder of the certificate,' and a party whose prop-' erty rights may be adversely affected by such proceeding should be heard therein. r It has been held that in so far as the Legislature
The court at Special Term properly denied the application in so far as it demanded a jury trial. It is well settled that it was competent for the Legislature to vest the court with authority to cancel liquor tax certificates- without a jury trial (Matter of Lyman, 46 App. Div. 387; affd., 163 N. Y. 552), and it needs no argument to show that those who are admitted on their own application take the proceeding as they find it, are bound by the same procedure,
It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.
Ingraham, McLaughlin, Clarke and Scott, JJ., concurred. .
Order affirmed, with ten dollars costs and disbursements.
Amd. by Laws of 1908, chap. 350.— [Rep.