96 N.Y.S. 33 | N.Y. App. Div. | 1905
Lead Opinion
The petitioner presented a petition to the Supreme Court asking that a liquor tax certificate issued to one John P. Williams be
Subdivision 2 of section 28 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1903, chap. 486), after providing how, when and by whom a liquor tax certificate may be revoked and canceled, provides that upon the day specified in the order to show cause why an order revoking, and canceling such liquor tax certificate should not be granted, the justice, judge or court before whom- the same is returnable shall ¿rant an’ order revoking and canceling the liquor tax certificate, unless the holder of said certificate shall present and file an answer to said petition which denies each and every violation of the Liquor Tax Law alleged' in the petition, and raises- an issue as to any of the facts material to the granting of -such order, “in which event the said justice,.judge or court-shall hear the proofs of the parties and may, if deemed necessary or proper, take testimony in relation to the allegations of the petition or answer, or'appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court without opinion.”
• By chapter '680- of the Laws of 1905, subdivision 2 of said Section 28. was amerided so as to read as follows: “ On the day specified in such order, the justice, judge or court before whom the same is returnable shall grant such order revoking and cancelling the said liquor tax certificate, unless the holder of said liquor tax certificate shall present and file an answer to said petition, which answer denies each- and every violation of the Liquor Tax Law alleged in the petition, and raises an issue as to any of the facts material to. the grant
By this amendment there was stricken from the act the provision, by which the justice, judge or court was authorized to appoint a referee to take the proof; and the question presented -upon -this •appeal is whether when an application is made to the Supreme Court, the court has any power when an answer to the petition is interposed to have the proof taken before a referee.
Under the provisions of this statute, before the amendment of 1905, upon the return of the order to show cause, where no answer was interposed, it was held that the court had power to order a reference to take proof of the facts, although no such power was expressly given by the act. (Matter of Cullinan [ Watson Certificate], 93 App. Div. 540 ; followed in this department in Matter of Culinan, [Capdeville & Co. Certificate], 94 id. 619.) This, under section 3334 of the Code of Civil Procedure, is a special proceeding and it must be controlled by the general rules established for the hearing and disposition of special proceedings. Itr is not an action (Code Civ. Proc. § 3333), and the rules applicable to the taking of testimony in civil actions are not applicable. The situation was that a question of fact was presented to be determined by the court in this special proceeding where the court was directed by the statute to hear the proof of the parties in' relation to the allegations in the petition and answer. It was the evident intent of this statute that there should be a summary disposition of the proceeding by the court upon proof to be taken. The question is, how was that proof to be taken ? Must it be before the court, or may this proof be taken before a referee so that upon the proof so taken the court can determine the question raised by the petition and answer ?
. Section 1015 of the Code of Civil Procedure provides that the court “ may likewise of its own motion or upon the application of either party, without the consent of the other, direct a reference, * * * where it is necessary to do so, for the information of the court; and also to determine and report upon a question of fact arising in any stage of the action upon a motion or otherwise, except "Upon the pleadings.”
A consideration of this provision would seem to show that it.
Hor do I think that the fact that the provision allowing the justice, judge or. court to appoint a referee was stricken from the statute by the amendment of 1905 is an indication that it was the intention to compel the court to take this proof and not to allow it to be taken by a referee. The present situation of the business of the courts, in this department makes this a question of importance. The judicial - force is so inadequate to perform the duties required of it, and the arrears are now so great, that it would be manifestly - impossible to dispose of these applications in the summary manner in which the Legislature intended, if they -had to take their turn with the other judicial" work, Unless the testimony in these proceedings can be taken before a referee, it is difficult to see how they can be disposed of. That the present condition, of judicial work in this department was known to the Legislature when the amendment of 1905 was passed is apparent from the various reports that have been made to it in the endeavor to provide some -remedy for the existing con
My conclusion is that the court below had power to direct the proof to be taken before a referee, and that the order should, therefore, be affirmed, with ten dollars costs and disbursements.
O’Brien, P. J., and Laughlin, J,, concurred; Patterson and McLaughlin, JJ"., dissented.
Dissenting Opinion
I dissent. I think it is 'evident that the Legislature by the amendment of 1905-eliminating from subdivision 2 of section 28 of the Liquor Tax Law the provision which enabled a justice or j udge or court to appoint a referee to take proof in a proceeding for the revocation and cancellation of a liquor tax certificate, is a legislative expression of an intent to withdraw from the court authority to appoint referees in such proceedings. When a statute is amended so as to read “as follows,” and, as thus amended, omits provisions of the amended law, the omission is to be regarded as a repeal of such provision. (Matter of Prime, 136 N. Y. 355.) I am also of the opinion that the Legislature had authority to direct the method. in which judicial proceedings under the Liquor Tax Law should be conducted and that in the exercise of such authority it did not encroach upon the power or jurisdiction of the Supreme Court, as such power and jurisdiction inhere in it under the Constitution of the State, and have been defined generally in the Code of Civil Procedure. It never was a part of the general jurisdiction of the Supreme Court of the "State of Hew York, or of the Court of Chancery of the State of New York, to regulate or revoke and cancel licenses. A Liquor Tax Law is an enactment of the Legislature conferring rights upon certain persons, which rights are revocable under certain conditions. Whether those conditions exist
Here is an entirely new jurisdiction to adjudicate conferred upon courts and judicial officers. So.,far as the Supreme Court of the State is. concerned, the Legislature has full power to regulate pror ceedings under .the Liquor Tax "Law. By section 3 of article 6 of the Constitution of the State, it is provided that, except as therein otherwise provided, the Legislature shall have the same power to alter and regulate proceedings at law and in equity that it has heretofore exercised. Statutes have frequently been passed by the Legislature concerning the appointment of referees by judges, or judicial officers, as is remarked by Vann, J., in Matter of Davies (168 N. Y. 110), and if the right to -appoint may be conferred by the Legislature, it' may be revoked by it under its power to alter "and regulate proceedings. The j urisdiction and the method of exercising it are conferred by one and the same act and there is no question here of the general powers of the Supreme Court.
McLaughlin, J., concurred.
Order afiifraed, with tén dollars costs and disbursements.