Opinion
June, 1898.
Mead Stranahan, for application.
Walter Welch, opposed.
The holder of the certificate made application therefor under subdivision 1, section 11, Liquor Tax Law, in the usual form to the county treasurer of Onondaga county, who granted the same.
The ground upon which it is asked to have the certificate revoked is that there were seven buildings used exclusively for dwellings within the distance prescribed by subdivision 8, section 17, of said law, while the applicant stated in his application that there were only three, and filed under said subdivision 8 the consents for only three.
It is pretty clear that the four additional buildings enumerated by the petitioner were all used as dwelling-houses within the meaning of the statute, as claimed by him. It could not have been the intention of the statute that a dwelling-house should lose its character and become a boarding-house or public place of business, because of such insignificant and incidental facts as were developed by the evidence in relation to the Newell and Woodward houses. The use of the Morris house in part for a physician's office had been discontinued before the certificate in question was granted.
Assuming, therefore, that there were seven houses within the meaning of subdivision 8, section 17; that the applicant's statement that there were three was false, and that he did not have and file the necessary consents to entitle him to the certificate, we reach the question whether the petitioner is entitled to have the same canceled as requested.
The application is made, of course, under section 28, of the Liquor Tax Law, and petitioner urges as two grounds for the cancellation, first, that a material statement in the application, viz., that relating to the number of dwelling-houses above discussed, was false; and, second, that the applicant is not entitled to hold such certificate by reason of his failure to file the necessary consents.
I do not think that the application can be granted upon the first ground. The only "material" statement for whose falsity the certificate could be revoked would be one which the applicant was required by law to make. The official charged with the duty of issuing certificates would not have the power by inserting questions outside of those authorized by the statute to lay the possible foundation for false statements and a subsequent revocation of the certificate. There is nothing in the statute which provides for a statement by the applicant of the number of dwellings for which consents must be filed. He is simply required to file the consents and whether they are sufficient in number is a question for determination very likely, as a matter of convenience, to be aided, but not controlled by, his statements. People ex rel. Anderson v. Hoag, 11 A.D. 74.
Neither does the statement in the application that the applicant may "lawfully carry on such traffic in liquors on such premises," relate to this subject of dwelling-houses. That manifestly refers to the provisions of section 24, prohibiting the traffic in liquors in certain places.
Upon the second ground, however, that the applicant was not and is not entitled to the certificate by reason of failure to obtain the necessary consents, the relief asked for should be granted unless one of the contentions of the defendant now to be considered is well founded.
It appears that after the application for the certificate was presented to the county treasurer a protest was also presented to him in behalf of the owners of the dwelling-houses in question raising the same issue of lack of necessary consents which is involved in this proceeding. Thereafter the county treasurer, notwithstanding such remonstrance, issued the certificate, and it is claimed that his action was judicial and a bar to this proceeding.
I think that under the provisions of section 19, as amended by chapter 312, Laws of 1897, the county treasurer was called upon to determine as a question of fact whether the necessary consents had been obtained; that as before suggested this was not one of the matters which the application was required to disclose upon its face, and that even if it did purport to do so the county treasurer was not bound thereby. This provision was not one which the treasurer was required or permitted to disregard to the end of issuing a certificate under the clause requiring him to so issue when the application "does not show on the face thereof that the applicant is prohibited from trafficking in liquor."
But all this being so, the question still remains whether this court in this proceeding cannot in effect review and correct the act of the treasurer in issuing a certificate when he should not have done so. Ordinarily such review by anybody at least who was legally a party to the proceedings would be by certiorari as suggested by defendant's counsel. But the legislature in treating this subject, of course had the power to provide for what should in effect be a review of the acts of a treasurer by a proceeding other than certiorari, and at the instance of persons who would not have any standing to institute the latter. It seems to have done so. Subdivision 2, section 28, seems to have provided in the most comprehensive language possible that "at any time" after a certificate has been granted "any citizen of the state" may institute a proceeding such as this to have revoked a certificate upon the broad general ground, in addition to those specifically enumerated, that the holder "was not entitled to receive or is not entitled * * * for any * * * reason to hold such certificate." It is the general rule that only parties and privies to a determination are bound by it, and independent of the language used, specifically combatting such an intention, it would be somewhat anomalous for the statute to give "any citizen" the right to question the validity of an issue of a certificate and then bind him by a decision of an officer in a proceeding of which very probably he never heard until after its conclusion.
The case of People ex rel. Anderson v. Hoag, cited by defendant's counsel, does not seem to conflict with this holding. That proceeding was by certiorari under other provisions than those quoted (if under this statute at all), and by the applicant, who, of course, was a party to the proceeding before the treasurer. Under the wording of the statute in that proceeding the court applied the ordinary rule of determination in bar.
These views lead to an order canceling and revoking the certificate in question.
Costs are allowed to the petitioner to the amount of disbursements actually incurred in the proceeding, including referee's fees to be taxed by the clerk and also $50 counsel fee.
Ordered accordingly.