People ex rel. Chambers v. Shults — 166 A.D. 868

Majority

p. 868

The People of the State of New York ex rel. George Chambers, Appellant, v. Daniel W. Shults, as County Treasurer of Steuben County and William W. Farley, as State Commissioner of Excise, Respondents.

Fourth Department,

March 3, 1915.

Headnote

Intoxicating liquors — town license for hotel situate on dividing line between town and city does not entitle proprietor to exception contained in Liquor Tax Law — duty of county treasurer to refuse application for liquor tax certificate when in excess of number provided by statute.

Where the proprietor of a hotel situate on the dividing line between a town and city has been selling liquor under a certificate issued for premises in the town, but the vote of the town prevents him from obtaining another certificate for premises therein, he is not entitled to the exception contained in subdivision 9 of section 8 of the Liquor Tax Law, providing that the provision that the number of certificates issued shall bear a certain ratio to the population shall not apply to any premises in which traffic in liquors has been lawfully carried on within the preceding year. If the proprietor of the hotel carried on the liquor traffic in the part of the building located in the city, he violated the law and, therefore, is not within the exception.

Under section 17 of the Liquor Tax Law, as amended by chapter 494 of the Laws of 1910, the county treasurer is required to refuse an application for a liquor tax certificate if the traffic at the premises is prohibited by virtue of subdivision 9 of section 8 of the Liquor Tax Law.

Appeal by the relator, George Chambers, from an order of the county judge of Steuben county, entered in the office of the clerk of said county on the 16th day of November, 1914, dis

p. 869

missing the writ of certiorari herein and sustaining the action of the county treasurer, without costs.

Frank J. Saxton, for the appellant.

Louis M. King [A. M. Sperry with him on the brief], for the respondent.

We are of the opinion that the county treasurer properly refused the relator’s application for a liquor tax certificate, for the reason that such certificate if issued would exceed the number permitted to be issued in the city of Corning under the provisions of the Ratio Act. (See Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39], § 8, subd. 9, added by Laws of 1910, chap. 494, as amd. by Laws of 1911, chap. 298.)

The exception contained in that act, to the effect that the prohibition therein contained shall not apply to any premises in which such traffic in liquors was lawfully carried on at some time within one year immediately preceding the passage of the act, provided such traffic was not abandoned thereat during said period, has no application to the case in hand, for the reason that the premises covered by the liquor tax certificate in force during that period of time did not include that part of the hotel situate in the city of Corning. The dividing line between the town and city passes through the relator’s hotel, so that a part of the hotel is in the town and another part is in the city. The liquor tax is less for premises in the town than in the city, and it seems that the bar of the hotel has been moved from time to time from one part of the hotel building over the fine to another part, and liquor tax certificates have been issued accordingly upon relator’s application, in which the premises were described as being in the town or city as seemed to his advantage. His last certificate was issued for premises in the town, but the vote of the town upon the local option question prevents the relator from obtaining a liquor tax certificate for the premises in the town, and to avoid the effect of the Ratio Act it is now contended on behalf of the relator that the entire building including that part located in the city was covered by his certificate for the town.

p. 870

We are not in accord with this view, but are of the opinion that if the relator has carried on the traffic in that part of the building located in the city, he has not done so lawfully and, therefore, is not within the exception.

As regards, the point that the'county treasurer is a ministerial officer and that, therefore, he was required to issue a certificate if the papers presented to him by the appellant were Regular and sufficient on their face, although in fact the certificate would have exceeded the number permitted by the Eatio Act, it is sufficient to say that under the amendment to section 17 of the Liquor Tax Law made by chapter 494 of the Laws of 1910 (as amd. by Laws of 1913, chap. 168), the county treasurer is required to refuse an application for a liquor tax certificate if the traffic at the premises is prohibited by virtue of the Eatio Act; and upon the conceded facts contained in the record, as we view the law, the certificate would be in excess, of the number permitted -under the Eatio Act, and, therefore, illegal.

We are, therefore, of the opinion that the application was properly denied and that the order dismissing the writ of certiorari and sustaining the action of the county treasurer should be affirmed, with costs.

All concurred.

Order affirmed, with costs.