Opinion
November 13, 1908.
Herbert H. Kellogg, for the appellant.
Thaddeus D. Kenneson, for the respondent.
On the 1st of May, 1907, one George A. Lewis applied for and obtained for the following excise year a liquor tax certificate to traffic in liquors at No. 1128 Third avenue in the city of New York. This he at once assigned to the Northside Brewing Company, and about the first of July following the receiver of that company assigned it to the relator, Zeltner Brewing Company. Both assignments were accompanied by powers of attorney to surrender the certificate for cancellation and rebate, and on the 1st of August, 1907, the relator surrendered the same for cancellation and rebate as provided in section 25 of the Liquor Tax Law (Laws of 1896, chap. 112, § 25, as amd.).
Lewis, on the 24th of March, 1907, was arrested for a violation of section 31, subdivision a, of the Liquor Tax Law — selling liquors on Sunday at No. 185 Greenwich street, where he was employed as a bartender by the holder of a liquor tax certificate for that place. He was subsequently indicted for the same offense, and on the first of May, when the certificate in question was issued to him, the indictment was pending and undetermined. On the 27th of June, 1907, he was convicted of the crime charged in the indictment upon a plea of guilty, and for this reason the appellant, as State Commissioner of Excise, refused to execute an order for the payment of the rebate, and thereafter the Zeltner Brewing Company obtained an alternative writ of mandamus directing him to show cause why he should not execute and deliver the requisite orders for such payment. At the conclusion of the trial of the issues raised by the Commissioner's return to the petition for the writ, the court found the facts substantially as stated, and reached the conclusion that the relator was entitled to a peremptory writ, which he allowed, with fifty dollars costs and disbursements. The appellant filed exceptions to this decision and appeals from the order directing the issuance of the writ.
The provisions of the statute for the surrender of liquor tax cortificates and the payment of rebates therefor are contained in section 25 of the Liquor Tax Law as amended. Prior to the amendment made by chapter 486 of the Laws of 1903 this section (as amd. by Laws of 1897, chap. 312; Laws of 1900, chap. 367, and Laws of 1903, chap. 115) read as follows: "If a corporation, association, copartnership or person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act, against which or whom no complaint, prosecution or action is pending on account of any violation thereof, shall voluntarily, and before arrest or indictment for a violation of the Liquor Tax Law, cease to traffic in liquors during the term for which the tax is paid under such certificate, such corporation, association, copartnership or person, or their duly authorized attorney, may surrender such tax certificate to the officer who issued the same * * *."
In People ex rel. Frank Brewery v. Cullinan ( 168 N.Y. 258) the court held that where the holder of a certificate was under arrest charged with a violation of the Liquor Tax Law at the time the certificate was surrendered, no rebate could be collected, although the violation charged had occurred before the certificate was issued, and that the arrest and prosecution referred to in section 25 did not have reference to violations of the law during the life of the certificate only.
By chapter 486 of the Laws of 1903, section 25 was amended so as to read: "1. If a person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act, against whom no complaint, prosecution or action is pending on account of any violation thereof, and who shall not have violated any provision of the Liquor Tax Law during the excise year for which such certificate was issued, shall voluntarily, and before arrest or indictment for a violation of the Liquor Tax Law, cease to traffic in liquors * * *," and the court before whom this proceeding was tried was of the opinion that this had changed the law so that the right to a rebate was forfeited only by an offense committed during the life of the certificate.
I do not think this is a proper construction of the statute. It destroys the manifest purpose sought to be accomplished, and the words used are not susceptible of such construction. The general words used in the prior statute still remain — that there must be no complaint, prosecution or action pending for any violation of the law — and this court has twice held that all the amendment did was to add another condition precedent which must be shown before the right to a rebate can be established. ( People ex rel. Hupfel's Sons v. Cullinan, 95 App. Div. 598; People ex rel. Munch Brewery v. Clement, 117 id. 539.) In the case last cited Mr. Justice CLARKE said: "To entitle the holder to the rebate there are certain conditions precedent, the fulfillment of which must be completed at the time of the surrender, and being conditions precedent their fulfillment must be alleged, and the burden of establishing them is upon the certificate holder. These conditions are as follows: First, there must be no complaint, prosecution or action pending on account of a violation of the Liquor Tax Law; second, the person surrendering must not have violated any provision of the Liquor Tax Law during the excise year for which this certificate was issued; third, the certificate must be surrendered before arrest or indictment for a violation of the Liquor Tax Law; fourth, the person surrendering must have ceased to traffic in liquors during the term for which the tax was paid. * * * The amendment of 1903 * * * inserted in section 25 * * * the additional condition precedent, `and who shall not have violated any provision of the Liquor Tax Law during the excise year for which such certificate was issued.'"
If no rebate could have been collected had the certificate been surrendered intermediate Lewis' arrest and conviction, it seems not only illogical but an unwarranted construction of the statute to hold that the right to the rebate was regained by his conviction. But it is claimed that since no proceedings were pending against him when the certificate was in fact surrendered, and he had not violated the law during the year for which the certificate was issued, the rebate could only be denied on the ground that the certificate was not surrendered "before arrest or indictment for a violation of the Liquor Tax Law," and it is argued that unless these words refer only to violations within the life of the certificate, then arrest or indictment with or without subsequent conviction would prevent the recovery of a rebate on any certificate thereafter issued to the person arrested. I do not think this follows, because subdivision 4 of section 34 of the act (as amd. by Laws of 1903, chap. 486, and continued by Laws of 1908, chap. 350) provides that a liquor tax certificate shall not be issued to any person convicted of a violation of the Liquor Tax Law within three years from the date of the conviction. This, impliedly at least, permits a person to surrender his tax certificate and recover the rebate, even though he has been previously convicted, provided such conviction was at least three years before the certificate was issued.
But there is another provision of the act which prevented the relator from obtaining the rebate in question. Section 23 (as amd. by Laws of 1905, chap. 680) provides that "No corporation, association, copartnership or person mentioned in this section shall traffic in liquors except as herein provided: 1. No person: * * * d. Who shall be convicted for a violation of this act, until three years from the date of such conviction." Under this section Lewis could not lawfully traffic in liquors from the date of his conviction. He would have been guilty of a crime had he done so, whether he held a liquor tax certificate or not. It is only a "person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act," who can avail himself of the provisions of section 25. On the first of August, when the certificate in question was surrendered, Lewis (and his assignees, so far as obtaining the rebate is concerned, are in no better position) was not only unauthorized to sell liquors under the Liquor Tax Law, but was expressly prohibited from so doing, since he had been convicted of a violation of the law less than two months before. The question is not whether his certificate could have been revoked, but whether he or his assignees at the time the certificate was surrendered were entitled to a rebate as provided in section 25. The necessary proof was not made showing that he was entitled to such rebate and it could not have been made because his conviction deprived him of the right to then sell liquors under the provisions of the act.
The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the writ quashed, with fifty dollars costs.
PATTERSON, P.J., LAUGHLIN and SCOTT, JJ., concurred; HOUGHTON, J., concurred on first ground.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.