Opinion
August, 1907.
William G. Van Loon, for petitioner.
Albert J. O'Connor, for respondent.
The proof of the violation of the statute presented by the petitioner was abundant and no controverting evidence was offered by the defendant.
The defendant relied solely upon the objection that the West End Brewing Company was a necessary party to the proceeding.
The defendant called as a witness the deputy county treasurer of Oneida county, who produced a book from the office of the treasurer which contained an entry of which the following is a copy:
"Name of certificate holder, Olive Holmes. Location, Sherrill. Certificate No. 24667. Record No. 480. Assignee, West End Brewing Company. Date of assignment, 4-18-1907."
There was no other evidence of an assignment nor of the contents of an assignment before the court. This alleged record shows the assignment to have been made, if at all, April 18, 1907, before the certificate was issued.
There is nothing in the statute calling for such a record.
Section 27 of the Liquor Tax Law provides for the sale, assignment and transfer of a liquor tax certificate during the time for which it was granted; but to make such sale, assignment and transfer effective the statute requires that the purchaser should make and file a new application and bond, as provided by sections 17 and 18 of the Liquor Tax Law, and present the tax certificate to the officer who issued the same, or to his successor in office, who is required to write or stamp across the face of the certificate over his signature his consent to the transfer.
Section 25 of the Liquor Tax Law provides for the continuance of the business of the holder or holders of a certificate by his, their or its legal representative or representatives, for the remainder of the year under the original certificate; but in that case a statement and bond must be filed as provided in sections 17 and 18 and the consent of the officer who issued the original certificate, or his successor in office, written or stamped across the face of the certificate over his signature. There are certain other restrictions in the law making the certificate subject to forfeiture after such consent is given in certain cases.
The spirit and letter of the law seem to make the certificate subject to forfeiture for acts of the record holder of the certificate, his agents or servants, not only until the evidence of the transfers has been completed as above indicated, but also thereafter.
The authorities seem to decide that a liquor tax certificate is a property right but subject to forfeiture by reason of violations of the law by the record holder of the certificate or his agents and servants.
Assuming that the alleged assignee in this case acquired some interest in the certificate, that interest was subject to defeat by the commission of illegal acts by the record holder of the certificate. The claim is that the assignment was for collateral security, and hence it contemplated the continuance of the business by the holder of the certificate and the subjectivity of the certificate to cancellation for illegal acts of the holder of the certificate. There is no reason why the alleged assignee should be made a party to the proceeding. If the State authorities and the holder of the certificate should conspire to procure the cancellation of the certificate in order to defraud the alleged assignee, it would have an ample remedy.
No application is made by the West End Brewing Company to intervene.
Matter of Cullinan (Santoro Cert.), 94 A.D. 445, cited by the respondent, has no application.
An order may be entered canceling the certificate.
Ordered accordingly.