Majority
p. 293In the Matter of the Petition of Robert Hering, Appellant, for a Writ of Certiorari Commanding Maynard N. Clement, as State Commissioner of Excise, and Others, Respondents, to Certify and Return to the Clerk of the Supreme Court, Kings County, All Proceedings, etc., Relating to the Refusal of Edward Kendall, then Special Agent and Acting Special Deputy Commissioner of Excise for the Borough of Brooklyn, to Issue to the Said Robert Hering, a Liquor Tax Certificate, etc. Second Department, June 18, 1909.
Headnote
Intoxicating liquors — erection of church within 200 feet of saloon — license — statutory construction.Where the Legislature in express words provides exceptions to a general rule, such provisions are to be deemed exclusive and to forbid the creating of any. further exceptions by implication.
The exceptions contained in the Liquor Tax Law in respect to churches and schools should be construed liberally in their favor and strictly against applicants for licenses within the prescribed distances.
There is no vested right to traffic in liquor and the State can at any time step in and absolutely prohibit it, no matter how long'it has been carried on or how much has been invested therein, or how serious the losses which may result. Where a church is erected within 200 feet of an existing saloon, no further licenses should be granted to the latter, although the business has been established there for several years and the value of the property will be decreased by the owner’s inability to procure a license.
Appeal by the petitioner, Bobert Bering, from an order of the Supreme Court, made at the Kings Comity Special Term and entered in the office of the clerk of the county of Kings on the 10th day of February, 1909, dismissing a writ of certiorari.
D- Cady Herrick, for the appellant.
Herbert H. Kellogg [Albert O. Briggs with him on the brief], for the respondents.
On the 30th of September, 1908, the appellant applied for a license to traffic in liquors upon the premises situated upon the
p. 294
northwest corner of Saratoga avenue and Sumpter street in the borough of Brooklyn for one year, from October 1, 1908, to September 30,1909, under subdivision 1 of section 11 of the Liquor Tax Law. (See Laws of 1896, chap. 112, § 11, subd. 1, as amd. by Laws of 1903, chap. 115.) He had been the owner of such premises since the 3d of March,. 1902, and since thé 3d of April, 1902, under certificates granted from year to year, had there carried on business, the last certificate expiring on September 30, 1908. In April, 1907, the land on the' southwest corner of Saratoga avenue and Sumpter street was purchased by a religious corporation, and thereafter a building was erected thereon which since December 1, 1907, has been continuously occupied exclusively as a church. It is conceded that the premises occupied by the appellant are within 200 feet of the said church building. His application was refused, and the action of the special deputy commissioner of excise for the. borough of Brooklyn was brought up for review before a Special Term of the Supreme Court in the county of Kings, and from the order sustaining his action this appeal is taken.
The Liquor Tax Law provides (§ 24)[2] that “ Traffic in liquor shall not be permitted': * * * 2. Under the provisions of subdivision one of section eleven of this act in any building * * * which shall be on the same street or avenue and within two hundred feet of a building occupied exclusively as a church.” This clear provision of the statute required the commissioner to refuse to grant the certificate unless there is either some express exception thereto which operates in appellant’s favor, or unless, although within the letter of the act, there is an implied exception to be found therein when the act is- construed according to the true intent and meaning of the lawmakers. It is unnecessary to enumerate the express exceptions contained in the statute, for it is conceded that the appellant has not brought himself within either of them. But it is urged in his behalf that inasmuch as he had established his place of business several years ago, and under certificates granted from.year to year had there carried on the traffic in liquors, and inasmuch as this must have been known to the religious corporation when it located its church building within 200 feet of the entrance to his building,
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it would be unjust and unfair to deny his application for a further certificate since the refusal thereof, will result in destroying both the value of his property for saloon purposes and the business of trafficking in liquors which he has built up in that particular place. We are, therefore, asked to write into the statute an exception which does not exist in express words. To do so would violate the rule of statutory construction that where the Legislature have in express words provided exceptions to a general rule, such provisions are to be deemed exclusive and to forbid the creating of any further exceptions by implication. (Suth. Stat. Const. § ,328.) Again, the courts have uniformly held that the exceptions contained in the statute in respect to churches and schools should be liberally construed in their favor, and strictly against applicants for licenses within the prescribed distances. (Matter of Place, 27 App. Div. 561 ; affd., 156 N. Y. 691 .) Beyond that the situation is one which does not demand a construction f the statute beyond the literal meaning of its provisions in favor of the applicant for a certificate. Traffic in liquors has been recognized as a lawful occupation, but because of the many evils attendant thereon it is subject to regulation by the State in the exercise of its police power. There is no vested right to carry on such traffic which is in the nature of property; the State can at any time step in and absolutely prohibit it, no matter how long it has been carried on, nor how great sums may have been invested therein, nor how serious the losses which may result from such prohibition. (Kresser v. Lyman, 74 Fed. Rep. 765 ; Matter of Clement [Brady Certificate], 54 Misc. Rep. 352 ; People ex rel. Bernard, v. McKee, 59 id. 369 ; affd., 126 App. Div. 954 ; Matter of Clement [Vam, Etten Certificate], 57 Misc. Rep. 47 .) If it can absolutely prohibit, it can impose any conditions, however severe. Every one who engages in the liquor traffic must be deemed to have done so recognizing the hazardous nature thereof, and that at any time the value of his investment therein may be seriously impaired, if not wholly destroyed. If the contention of the appellant here were correct, then if one located a saloon upon the corner of an unoccupied block of ground, although subsequently valuable and expensive prjvate dwellings were erected thereon, the applicant for a certificate under the Liquor Tax Law would be absolved from the necessity of obtaining the consent in writ
Concurrence
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ing specified in the statute[2] from the owners of two-thirds- of the total number of such buildings so occupied as dwellings within two hundred feet of the entrance to the premises where such traffic was to be carried on. Such .'a construction would enable the trafficker in liquor to seriously depreciate the value of the property adjoining his place of business without the consent of the owners and without compensating them.' It may be urged that the converse is true. The property owner or the church .may seriously depreciate the value of the saloon property. The distinction between the two classes of "cases is just here. The person who engages in the liquor traffic does so deliberately, knowing the hazards which he runs if he is unable to fulfill the conditions precedent to the renewal of his license from year to year. He accepts these risks when he enters the business. The property owner on the other hand does not need the permission of the State to acquire his property, nor to hold nor to use the same. ‘He has no conditions to fulfill, and he purchases his property relying upon knowledge of that fact. The contention of the appellant that an opportunity is afforded to harass the dealer in liquors and to destroy his property, if a so-called school for boxing or to give instruction in dancing or physical culture were located next to his saloon, or to a valuable hotel property, which value, in part at least, was due to the fact that it was permitted to traffic in liquors, seems to be not well founded. The phrase of the statute[3] “ schoolhouse ” had in view schools devoted to such general elementary and intermediate instruction as is adapted to the education of children and youth. (Matter of Townsend, 195 N. Y. 214 .)
The order appealed from should be affirmed, with costs and disbursements.
Jenks, G-ayhor and Miller, JJ., concurred; Woodward, J., concurred in separate memorandum.
(concurring):
. While I think the reasons which prompted. the Legislature to except from the limitations to schools and churches those places
* See Laws of 1896, chap. 113, § 17, subd-. 8, as amd. by Laws of 1908, chaps. 144, 850.-[Rep.
† † See § 34, subd. 3, as amd. supra.— [Rep.
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which were actually lawfully engaged in the liquor business in 1896, should operate to give a like exemption to property which has been so used before the erection of a church, I am unable to find any authority for changing the exact and well-understood language of the statute. I think the relator must go to the Legislature for relief. I, therefore, vote to affirm.
Order affirmed, with ten dollars costs and disbursements.
Footnotes
- * See Laws of 1896, chap. 112, § 24, suM. 2, as amd. by Laws of 1908, chap. 350. — [Rep.
Cases cited
- In re Clement 54 Misc. Rep. 352 p. 295
- In re Clement 57 Misc. Rep. 47 p. 295
- In re Townsend 195 N. Y. 214 p. 296