Opinion
April 5, 1918.
Emanuel Celler [ Meyer Kraushaar with him on the brief], for the relator.
William R. Dorman [ Harry D. Sanders with him on the brief], for the respondent.
The order of the State excise authorities acting under the powers conferred by this statute has been held constitutional. ( 180 App. Div. 464; 222 N.Y. 387.)
Relator, however, points out a distinction. After he had prepaid the tax for a year's traffic, the State has nevertheless suspended such traffic without providing any compensation, or for reimbursement by the return of the proportionate unexpired part of the excise year. It appears that under the existing Liquor Tax Law a certificate holder cannot obtain a refund for the unused period, without surrender and cancellation of such certificate, and, even then, he does not have the full pro rata sum. (Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39], § 24, subd. 1, as amd. by Laws of 1917, chap. 623.)
Obviously, this suspension and stoppage of relator's privileges involved him in losses, since the Newton Law aforesaid contemplates a suspension for the period of the war. On the other hand, through the stay granted with this writ, relator was enabled to continue his traffic from August eleventh up to the thirtieth of September, the close of the excise year. Whether or not relator should have a proportionate return of the tax money prepaid for the time that relator was prevented from engaging in the traffic in liquors, we need not inquire. We recognize that a certificate which is thus issued should carry with it a right to a just rebate if the State stop or suspend its operation without fault of the certificate holder.
We are agreed, however, that the rights conferred under such liquor tax certificate were not paramount to this exercise of the State's police power to suspend the privileges thereunder, even if the provisions for reimbursement were not full and complete. The Court of Appeals has said: "The suspension was but a means to the end that the sale be prohibited. But that end is not dependent exclusively upon that means. It may be accomplished as lawfully and effectively by refusing to issue or by suspending the issuance of a certificate for a place within a territory interdicted to the traffic by the order of the commissioner, and the Legislature intended that such method of accomplishment, whenever and wherever the conditions made it appropriate, should be invoked." ( 222 N.Y. 387, 394, 395.)
I advise, therefore, that this writ of certiorari be dismissed and the stay dissolved, with fifty dollars costs and disbursements.
JENKS, P.J., THOMAS, MILLS and RICH, JJ., concurred.
Writ of certiorari dismissed, and stay dissolved, with fifty dollars costs and disbursements.