Teschmacher v. Clement

provided that two violations of the Liquor Tax Law by employees of the holder, if committed during the lifetime of the same certificate shall work a forfeiture. The only argument in favor of such a reading is that to construe- the act as it is- written would in this particular case work a hardship. That is not a sufficient reason -for disregarding the plain language of the statute. (Matter of Hering, 133 App. Div. 293 .) What the statute plainly says is that' two convictions shall work a forfeiture. The language is too plain to require construction, and even if we are to assume that thése two. convictions must be had during the lifetime of a single certificate, that necessity is satisfied by the facts of the present case.

The order is affirmed, with ten dollars costs and disbursements.

Ingraham, J., concurred ; Laughlin and Houghton. JJ., dissented.

I .concur on the ground that these two convictions occurred during the life of one certificate.

I am. of opinion that the court erred in denying the plaintiff’s. motion for an injunction. The only circumstances under which the action of the State Commissioner of Excise and of his deputy and of ■ the sheriff would be warranted are where, as prescribed in subdivision. 3 of section 36 of the Liquor' Tax Law, the liquor tax certificate has been forfeited because there have been “ two convictions of clerks, agents, employees or servants, of a holder'of a liquor tax certificate for a violation of any provision ” of the Liquor Tax' Law, for-certified copies of such convictions ai;e made the basis of the right of the sheriff to seize the' liquor tax certificate to restrain which this action is brought. (Liquor Tax Law, §' 36, subd. 8.) ' Where there have been- two such convictions, then by virtue of the provisions of said subdivision of section 36 of the Liquor Tax Law the certificate is forfeited, and by virtue of subdivision 8 of the' same section it may lawfully be taken from the holder thereof by thó sheriff on being duly authorized by the State Commissioner of Excise or his deputy. If there have not been two convictions within the statute, then it cannot be maintained that the

Coinmissioner.should be allowed to take the law into his own hands and attempt to seize the certificate for any other violation of law without a judicial determination of the question as to whether or not the certificate has been forfeited. I am of opinion that the two convictions to which the Legislature in this subdivision refers must be two convictions during the life of the particular certificate sought to be seized, for, otherwise, there is no limitation, and neither conviction need be had during the life of the certificate which it is claimed has been thus forfeited, but both may have been had before the certificate Was issued or on account of offenses' committed prior to the issuance thereof, and in any other place within the State. The statute I think has reference to the relation of master and servant, or principal and agent, during the life of the particular certificate, the possession of which is sought to be obtained. Unless this be so it is not material that the other violations were in the same premises or under the certificate for that or any prior year. • The statute, in my opinion, must be construed as relating to violations during the life of the certificate, and with respect to the business authorized by the particular certificate, or there is no limitation of time or place, excepting, perhaps, the boundaries of the State, within which or where the violations may have occurred. It is reasonable to suppose that the Legislature might require that the holder of a liquor tax certificate, on discovering that one employee, acting in the course of his employment, had violated the Liquor Tax Law, or that a claim to that effect was made and that the employee was convicted thereof, should exercise particular care to see that no other violation occurred during the life of that certificate; but it should require clear language to indicate a legislative intent that the holder should be debarred from the right to traffic in liquor for the period of three years, if twenty-five or fifty years after the first conviction any of his employees should happen to be convicted of a violation of the law committed in his absence. There has been only one violation of the Liquor Tax Law during the life of the certificate in force at the time this action was brought. The conviction of an employee does not establish the guilt of the principal and we have held that it does not establish the violation of the Liquor Tax Law as against the holder of the liquor tax certificate although on due proof of a violation by either the holder or the employee the