40 N.Y.S. 1107 | N.Y. Sup. Ct. | 1896
The questions here presented arise on the petition of the plaintiff for a writ of certiorari to John 0. Lammerts, as county treasurer of Niagara county, and his return thereto. From these papers it appears that the premises known as “ 601 Main street,
It is undisputed that, within 200 feet of the premises where the business is proposed to" be carried on, there are a number of buildings occupied exclusively for dwellings and the consents of the owners of such buildings have not been obtained. It is also undisputed that on the same street, and opposite, within 200 feet, is a piece -of property belonging to a church society; that no building has been erected, but a church edifice has been commenced, and the foundation walls have been laid, and at the time of this application, and for some time previous, work on the building was and had been suspended. It is now claimed by the plaintiff that, inasmuch as the premises where the business is proposed to he carried on were at the time of the passage of chapter 112 occupied as a place where traffic in liquor was actually lawfully carried on, he is not required, under the exception to subdivision 8 of section 17 of the act, to procure the consent of two-thirds of the owners of such buildings, and that the prohibition contained in subdivision 2 of section 24 with reference to buildings occupied exclusively as a church has no application to the facts in this case. Section 11 provides: “ Excise taxes upon the business of trafficking in liquors. Excise taxes upon the business of trafficking in liquors shall be of four grades, and assessed as follows:
This section then goes on to provide what tax shall be imposed upon the business in the different cities of this state. If the language of the law is to be taken literally, the tax is upon the business of the person, and not a license to the person; as was the case under the law of 1892, which required the applicant to be a person of good moral character; and this language is employed through all of the sections of this statute— “a tax upon the business77 — and is nowhere called a license of the business, or to the person. It is provided by subdivision 8 of section 17 that: “ When the nearest entrance to the premises described in said statement as those in which traffic in liquor is to he carried on is within 200 feet of the nearest entrancé to a building or buildings occupied exclusively for a dwelling, there shall also be so filed simultaneously with said statement a consent, in writing, that such traffic in liquors be so carried on in said premises during a term therein stated; executed by at least two-thirds of the owners of such buildings within 200 feet so occupied as dwellings, and. acknowledged as are deeds entitled to he recorded, except that such, consent shall not he re
Section 24 of the act declares: “ Place in'which traffic in liquor shall not be permitted. Traffic in liquors shall not be permitted * * *. (2) Under the provisions of subdivision 1 of section 11 of this act, in any building, yard, booth or other place which shall be on the same street or avenue, and within two hundred feet of a building occupied exclusively as a church or a schoolhouse. * * * Provided, however, that this prohibition shall not apply to a place which is occupied for a hotel, nor to a place in which such traffic in liquors is actually lawfully carried on when this act takes effect; nor to a place which at such date is occupied or in process of construction by- a corporation or association which traffics in liquors solely with its members.”
By section 43 of chapter 401 of the Laws of 1892 it was provided that: “No person or persons who shall not have been licensed prior, to the passage of this act shall hereafter be licensed to sell strong or spirituous liquors, wines, ale and beer -in any building not used for hotel purposes, and for which a license does-not exist at the time of the passage of this act, which shall be on the same street- or avenue and within 20Ó feet of a building occupied exclusively for a church or a schoolhouse.”
It was held by the Court of Appeals in People ex rel. Cairns v. Murray, 148 N. Y. 171, that this section was a prohibition against any person selling liquors in such a place unléss the party applying for a license was the same person who had a license, and had occupied the proscribed premises, at the time of the passage of this act. But the legislature, by the act of 1896, seems to have purposely changed the reading of this provision of the law. The language is significant. It reads: “ Place in which traffic in liquors shall not be permitted. Traffic- in liquors shall not be permitted,” etc.
This section is a substitute for section 43 of the act of 1892, which the Court of Appeals, in- People ex rel. Cairns v. Murray, supra, had under consideration; and it is manifest that the change made by the legislature was not accidental, but for the purpose of extending the proviso to the premises which had at the time of the passage of the act been occupied for the sale of liquor. It seems to me it would be doing violence to language to hold that under this section, as it now stands, the only person who occupied the premises under a license at the time the act went into' effect
If I am right in the construction I have placed on this section, then it would not be necessary to procure the consent of two-thirds of the owners of buildings occupied exclusively for dwellings, nor would the provision prohibiting such traffic within 200 feet of a church have any application to this case; for it is undisputed that at the time chapter 112 became a law the premises in question were occupied as a saloon, and traffic in liquors was then actually carried on in that place. Had such traffic been continued down to the time of this application, the relator-would be entitled to the relief which he now seeks. It does not seem to me, however, that the conceded fact that a church society owns property within 200 feet, upon which no building has been erected, is within the prohibition. The language of the statute' is, “ within 200 feet of a building occupied exclusively as a church,” and, as there is no building there, it cannot be, and is not, occupied as a building for a church, and hence the language of the statute has no application to a case of this kind. It is undisputed that Mingay quit the_ business of selling liquor at this place oU the 11th day of June, and no business has been carried on in the premises since that time. The plaintiff claims that he leased the premises of the owner, and intends to carry on the business, if he can procure a tax certificate from the defendant, and that the reason he has not occupied the premises since June 11th is that he could not procure the transfer of the former occupant’s license, and that he has, in fact, been in possession of the premises, it should be considered as still a place where liquors are sold. Mingay quit the business June 1.1th, and made application for a transfer of.his license on June 15th. There is, concededly, a time when, no person had any license,- excepting Mingay, to carry on the liquor business. I can see no reason why a liberal construction should be given to the restrictive provisions of this act. It was probably intended by the legislature to reduce the number of places in which the liquor traffic was carried on, and to increase the revenues by increasing the tax for doing business, and, in a measure, protect dwellings, schools, and churches from
A case somewhat analogous has been recently passed upon by the Supreme Court of Kings county, in the -matter of the application for the revocation of the liquor tax certificate issued to Adolph Samuely, ante. It appeared that, at the time of the passage of the act, one Easier conducted a liquor business at 108 Union ayenue, under a license obtained from the board of excise of the city of Brooklyn; that on April 10, 1896, he' gave up the liquor business, and moved away from the premises, and the same remained vacant until June 16, 1896, Vhen Samuely made application and received a. liquor tax certificate to carry on the business. An-application was then made to the court to cancel the license on the ground that Samuely had not gotten the consent of two-thirds of the owners of the buildings, exclusively used as dwellings, situated within 200 feet of such place of business, as required by subdivision 8 of section 17 of the act. It was there contended that inasmuch as the premises were, at the time of the passage of the act, occupied as a place where liquors were sold, it was not necessary, under the exception contained in subdivision 8, to procure the consent of the owners of buildings used as dwellings. The court held that,-when such premises were abandoned by the party occupying them at the time óf the passage of the act, no right or franchise remained in the premises themselves. While the learned judge seems to take- the view that the premises cannot be occupied by any other than the person holding the license at the time the act took effect, the case is authority upon the question that, when the place has once been abandoned, it loses its privileged character which the act gave it> and must be treated as any other place where this business is sought to-be carried on, and falls within the prohibition óf -the statute.
Writ dismissed, with costs.