180 A.D. 464 | N.Y. App. Div. | 1917
The relator’s liquor tax certificate, though a species of property (Matter of Lyman, 160 N. Y. 96), only ran to the end of the excise year. After expiration, the holder’s right to renewal is not absolute and unqualified. For example, if in the meantime a church has been built nearby, the certificate will not be renewed (Matter of Hering, 196 N. Y. 218, before the amendment of 1911; Liquor Tax Law, § 23, subd. 2, as amd. by Laws of 1911, chap. 643, and Laws of 1915, chap. 654), as the right to traffic in liquors is subject to the higher uses of the neighboring property. The issuance of such a license cannot divest the Legislature of the power to protect the lives, health and safety of its citizens. These belong to that class of objects which demand the application of the maxim solus populi suprema lex. They are attained by such appropriate means as the legislative discretion may devise. “ That discretion can no more be bargained away than the power itself.” (Beer Co. v. Massachusetts, 97 U. S. 25, 33; Fertilizing Co. v. Hyde Park, Id. 659; Stone v. Mississippi, 101 id. 814.)
The Legislature lays restrictions for other causes than the vicinity of churches or schoolhouses. Liquors cannot be sold within a half mile of the West Point Military Academy (§ 30a, as added by Laws of 1911, chap. 762), or within 1,320 feet of the Plattsburgh encampment (§ 30b, as added by Laws of 1917, chap. 172). A power to restrict the number of licensed places in certain parts of a town or city (§8, as amd,
The objection that this statute did not expressly forbid the “ issue ” of certificates, but instead authorized the Commissioner to “ suspend the privileges,” and prohibit the “ sale of alcoholic beverages,” is without merit. These terms are in keeping with like parts of the Liquor Tax Law, which provide for suspension, as distinguished from abandonment, of the holder’s privileges. The local option provisions (§ 13, as amd. by .Laws of 1910, chap. 485), by which the voters may forbid liquor sales, operate to suspend all traffic during two years. If thereafter the electors vote the other way, the privileges again become lawful. (People ex rel. Sandman v. Brush, 179 N. Y. 93.) Suspension is specially appropriate to such a temporary restriction imposed for an emergency, which may end with peace, or may be wholly removed by a transfer of the traffic out of the restricted area. The power to set bounds to such an area may be conferred on the excise officials, when called on by the application of the local city or town authority. (Village of Saratoga Springs v. Saratoga Gas, etc., Co., 191 N. Y. 123.) To deny the authority thus to appoint officials to carry out, apply and administer the legislative will, by defining the territory to be affected, would require the Legislature either to lay down an iron standard for all cases, or else to pass a special act for each camp, barrack or munition factory, which, being once fixed, could not be changed, except by fresh legislation. Examples of such delegated power over administrative details, are familiar in both State and Federal legislation; such as Public Service Commissions, commissions to fix rates, to exercise censorship over moving pictures, and appointive bodies to define harbor lines. “ The Legislature must declare the policy of the law and fix the legal principles which are to control in given eases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done there would be infinite confusion in the laws, and in an effort to detail and to particularize, they would miss sufficiency both
This court should not lightly declare such exercise of the State’s power to be unconstitutional. Justice Washington (in Ogden v. Saunders, 12 Wheat. 213, 269) said that a statute is presumed valid “ until its violation of the Constitution is proved beyond all reasonable doubt; ” or, as was declared by Savage, Ch. J., “ a case must be presented in which there can be no rational doubt.” (Ex parte McCollum, 1 Cow. 564.) Although modern courts have not always stated this rule so strictly, the case at bar is certainly amenable to its application, since the statute under examination is an instance of an exercise of the police power of the State, which is well said to be “ ‘ the least limitable of the powers of government.’ ” (Sligh v. Kirkwood, 237 U. S. 52, 59.)
This legislation now attacked is an emergency measure for the safety and efficiency of the enlisted men while in training and those engaged in munition and equipment services equally important. It is demanded by the “ high behests of war,” which may call the people to every sacrifice.
Accustomed, as we have become, to the war powers of the Federal government, we are not to overlook the unquestioned war powers still residing in the State. While the State cannot declare war, or in itself carry it on, it is bound to render loyal aid to the general government in the effective prosecution of the war. After raising the military and industrial personnel, it is still under a duty to safeguard them from evil influence, even when its citizens have been mustered into the Federal military service. The State has also in good faith to co-operate in the national policies for war efficiency.
In the corresponding English ¡Statute, industrial protection, from the sale of intoxicants is put before the demands of the military service. By Orders in Council, an area may be set off which will be subject to regulation, excluding all but the government from such liquor traffic, and imposing other restrictions, if it appear expedient, “ on the ground that war material is being made, or loaded, or unloaded, or dealt with in transit, in the area; or that men belonging to His Majesty’s naval or military forces are assembled in the area.” (Stat. 5 & 6 Geo. Y, ch. 42, § 1; L. R. 53 Stat. p. 79.)
Should a narrow and technical judicial policy weaken and annul this beneficent State statute, the result in this, as in many a past instance, would necessitate an enlargement of Federal control so as to bring the general government more and more into State affairs. The Draft Act,
The occasion for this enactment is not disputed. Conditions threaten to demoralize camps, and to hinder, obstruct and delay the production of needed war material. Sales of intoxicants in this region have also led to serious assaults on
We are confined to the questions arising on the records before us; and, therefore, have not considered the effect of this excise order upon the 1916 liquor tax certificates, which had not expired when the order took effect.
I advise that the order of the judge of the County Court of Kings county directing the issue of a tax certificate for the excise year beginning October 1, 1917, be reversed, with fifty dollars costs and disbursements of this appeal, and that the writ of certiorari be dismissed, with fifty dollars costs.
Thomas, Stapleton, Rich and Blackmar, JJ., concurred.
Order of the judge of the County Court of Bangs county directing the issue of a tax certificate for the excise year beginning October 1, 1917, reversed, with fifty dollars costs and disbursements of this appeal, and writ of certiorari dismissed, with fifty dollars costs.
Entitled: “ An act to authorize the President to increase temporarily the military establishment of the United States.” (Laws of the 65th Cong. Sess. I, chap. 15.) — [Note by Court.
