In re Clement — 140 A.D. 223

Majority

p. 223

In the Matter of the Petition of Maynard N. Clement, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 7,270, Issued to Thomas F. Gallagher, Respondent.

Second Department,

October 7, 1910.

Headnote

Intoxicating liquors — revocation of certificate—illegal sales—laches — unauthorized sales by servant.

A petition for the revocation of a liquor tax certificate upon the ground that the holder permitted his servants to make illegal sales on Sunday, cannot be denied on the ground of laches on the part of the Commissioner of Excise, or because it has become impossible for the holder of the certificate to find the servants who made the sales.

The fact that the holder of the certificate never authorized illegal sales by his servants is no defense.

Hirsohberg, P. J., dissented.

Appeal by the petitioner, Maynard N. Clement, as State Commissioner of Excise, from an order of the Supreme Court, made at

p. 224

the Kings County Special Term and entered in the office of the ■clerk of the county of Kings on the 23d day of May, 1910, denying the petitioner’s motion to revoke and cancel a liquor tax certificate issued to the respondent.

Herbert H. Kellogg, for the appellant.

Robert M. Johnston, for the respondent.

The petition alleges violations of the Liquor Tax Law, in that the defendant is alleged to have permitted the illegal sale of liquors on certain Sundays mentioned in the petition, and it is conceded that the evidence fully establishes the fact of such violations, the defendant 'merely asserting that he had never authorized such sales, and that he cannot now find the servants who are alleged to have made the illegal sales. The petition is brought under the provisions of subdivision 2 of section 27' of the Liquor Tax Law (Consol. Laws, chap. 34 [Law's of 1909, chap. 39], as amd. by Laws of 1909, chap. 281),^[1] which section provides that if, upon the trial of the issue, . “ the said evidence establishes any of the facts hereinbefore set forth as sufficient to revoke and cancel a certificate, an order shall be granted by said justice, judge or court, revoking and canceling such certificate.” ¡Notwithstanding this positive provision of1 the statute, the learned justice who heard the testimony has denied the . application of the petitioner, not upon the ground that the evidence failed to establish the necessary facts, but upon the ground of laches.

It appears that the witnesses, agents of the Excise Department, secured the evidence upon which the proceeding was based some five or six months before the proceeding was instituted, and the learned justice holds that this, unexplained, constitutes laches defeating the petition. There- is nothing in the statute which limits the time within which a proceeding shall be instituted; the defendant took his certificate knowing the provisions of law — knowing • that he held it only upon the condition. that neither he nor any of his agents, servants, bartenders or any person whosoever in charge of said premises should violate any of the provisions of the statute

* Since amd. by Laws of 1910, chap. 503.— [Rep.

p. 225

(§ 27, subd. 2); and just why the equitable doctrine of laches should be invoked to relieve him of the conditions under which he held this valuable privilege from the State does not appear to us. If the defendant put persons in charge of his place who violated the law, he violated the conditions on which the grant was made and continued. He employed each servant knowing this risk, and if he is unable, six months after the transaction, to know where his former employees are, it is his misfortune, but it affords no reason why the law should be abrogated in so far as it relates to himself. It is not even claimed here that these servants, if they were present, could show any different state of facts than that testified to by the agents of the Excise Department; and the fact, if it be true, that the defendant never authorized the illegal sale of liquor is of no importance. He takes his license upon the condition that he will see to it that none of his servants disobey the law. If lie neglects this duty, and permits violations of the law, he forfeits his right to the certificate, and no lapse of time, short of a statute of limitations fixed by the legislative power, can relieve him from the forfeiture. The act of the defendant in permitting the sale of liquors upon his premises on Sunday is illegal, and no lapse of time can make that lawful which was originally unlawful. (Broom’s Leg. Max. 143; Noy Max. [9th ed.] 16.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the application to revoke and cancel the liquor tax certificate should be granted.

Burr, Rich and Carr, JJ., concurred; Hirschberg, P. J., dissented.

Order reversed, with ten dollars costs and disbursements, and application to revoke and cancel liquor tax certificate granted.