111 N.E. 66 | NY | 1916
Lead Opinion
The certificate in question was issued for the premises No. 196 North Water street of the city of Poughkeepsie, Dutchess county. The application of Joseph H. Miller, on which the certificate was obtained, contained the following questions and answers among others: "11. Since what date have said premises been continuously occupied for such traffic in liquors? Since October first, 1908." "34. Has a notice of abandonment of such traffic at said premises, pursuant to the provisions of section 8 of the Liquor Tax Law, been heretofore filed? No," and the statement that he might "lawfully carry on such traffic in liquors upon such premises." Upon the alleged falsity of those answers and the statement the certificate was canceled under the statutory provision: "At any time after a liquor tax certificate has been issued to any person under section eight of this chapter, said liquor tax certificate may be revoked and canceled if material statements in the application of the holder of such certificate were false * * * or if the holder of said *452 certificate was not for any reason entitled to receive or hold the same, or to traffic in liquors * * *." (Liquor Tax Law [Cons. Laws, ch. 34], § 27, subd. 2.) The state commissioner of excise by his petition asserted that the answers and statement were false, and that Joseph H. Miller was not entitled to receive the certificate or traffic in liquors.
The facts are: On September 30, 1913, a liquor tax certificate existed for the premises 196 North Water street, and traffic in liquor had been continuously lawfully carried on at said premises since October 1st, 1908. On September 30, 1913, the last day of the term for which the certificate was issued, there was filed with the county treasurer of Dutchess county, the officer charged with the duty of issuing liquor tax certificates in that county, a notice that the traffic in liquors was abandoned at those premises and was to be carried on at No. 40 College avenue of Poughkeepsie. The filing of such notice was authorized by the statute. (Liquor Tax Law, §
On November 1st, 1913, a liquor tax certificate was issued, and was unrevoked at the time of the trial in this proceeding, January 24, 1914, for the premises No. 40 College avenue. No liquor was at any time intervening September 30, 1913, and the trial sold at No. 40 College avenue, and the consents of the owner of those premises and of the owners of adjoining premises to the transfer of the traffic to those premises was on the express agreement and condition that no liquor was to be or should be sold at those premises under such transfer. *454
On December 5, 1913, the certificate revoked in this proceeding was issued. It was issued under a ruling by the state commissioner of excise, upon the submission of the matter to him, that the premises No. 196 North Water street were entitled to a liquor tax certificate which should be issued to the appellant upon the application in question. The state commissioner and the county treasurer then had full knowledge of all the facts and circumstances surrounding the application and neither of them has been in any way deceived or misled by the answers and statement of the application. The answer to the question number 34 was made pursuant to the express direction of the county treasurer of Dutchess county in accordance with the ruling of the commissioner.
The respondent asserts that the revocation of the certificate was compelled and justified by the single fact that the notice of abandonment was filed against the premises No. 196 North Water street. His argument is that the duties of the county treasurer in the matter were purely ministerial, excluding that of going behind the notice of abandonment and determining whether it was null and void, and as to him it would become null and void only by being expunged from his files by something of an official nature by way of a court order by which he could be governed; the fact that the notice was on file inflexibly and inescapably constituted the answer false within the meaning of the statute, regardless of the facts, if they existed, that the notice was in truth null and void, that it was not to be deemed an abandonment of the traffic at the premises No. 196 North Water street and that the state commissioner of excise with full knowledge of all the facts had ruled that the notice was null and void. He invokes in support of the assertion the parts of the statute we have referred to and additionally and especially the statutory prohibition (section 17) of the issuance of the certificate in case it shall appear by a notice duly filed with the certificate issuing officer that such traffic *455 has been abandoned at the premises described in the application statement.
We turn now to a determination of the effect of the untruthfulness of the answers considered by itself as the ground for the revocation of the certificate. The statute provided that the applicant should state in the application whether or not there had been filed with the certificate issuing officer a notice of abandonment by virtue of which traffic in liquors might lawfully be carried on at the premises described in the application statement, together with the date of the filing of such notice and other facts. (Liquor Tax Law, §
The respondent asserts that the answer to question 11 was false because of the filing of the notice of abandonment, although the notice had become null and void. In this he errs. The appellant prior to September 30, 1913, duly applied for and fulfilled all the requirements for obtaining the certificate. The notice of abandonment was filed and the certificate was not issued. On December 2, 1913, and when more than the sixty days next following the filing of the notice and more than thirty days next following the issuance of the certificate for the premises 40 College avenue had elapsed, he formally demanded the issuance of the certificate and was directed by the state commissioner of excise that a new application in the same form as that filed in September must be made and filed. He continuously occupied, within the meaning of the statute, the premises subsequent to September *457
30 for such traffic in liquors. (Matter of Kessler,
The next question presented is, was the appellant, because of the filed notice of abandonment, not entitled to receive or hold the certificate or to traffic in liquors at the premises 196 North Water street. It involves the right of the appellant to there traffic in liquors. It passes beyond the questions and answers of the application and comprehends the facts as they existed. At the time the certificate was issued, by virtue of the statute itself, the notice of abandonment had become, under the facts here presented, null and void and the filing of it could not be deemed an abandonment of the traffic at 196 North Water street. The validity of the certificate for the premises 40 College avenue depended primarily upon and ceased with that of the notice of abandonment. No valid transfer of it could have been or could be made. On December 5, 1913, the conditions in fact were: there was no notice of abandonment of the premises 196 North Water street, nor certificate for 40 College avenue; there was the application of the appellant for 196 North Water street, at which the traffic had been carried on within the year immediately preceding the Ratio Act. Those conditions in connection with others which the appellant unquestionably complied with entitled him to receive and hold the certificate and to traffic in liquors. The mere fact that the notice of abandonment was filed with the certificate issuing officer did not bar the issuance of or invalidate the certificate when issued. The county treasurer was not bound to seek information beyond that which the questions of the application might properly have evoked, or upon the entire information received might have refused to determine the right of the appellant to and to issue the certificate, thus leaving the appellant to the remedy of certiorari for its acquisition. (§ 27, subd. 1.) But, inasmuch as he issued the certificate, he cannot *458 support this proceeding by the mere fact that the notice was filed, even as he could not by it defeat the writ of certiorari issued to the appellant, upon the refusal of the certificate, to compel its issuance. Nor did the failure of the appellant to secure and file with the application new consents of property owners bar the issuance of the certificate.
The relevant statutory provision is: "Whenever the consents shall have been obtained and filed as required by law at the time of such filing, unless the same be given for a limited term, no further or other consent for trafficking in liquor on such premises shall be required so long as such premises shall be continuously occupied by such traffic." (Liquor Tax Law, §
The orders of the Appellate Division and of the Special Term should be reversed and the proceeding dismissed, with costs in all the courts.
Concurrence Opinion
I concur in the result on the sole ground that, under the rule laid down in Matter of Moulton (
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE and SEABURY, JJ., concur with COLLIN, J., and CARDOZO and POUND, JJ., concur in result in memorandum.
Orders reversed, etc. *459
