In re Clement — 21 N.Y. Crim. 190

Majority

p. 190

SUPREME COURT—SPECIAL TERM—SUFFOLK COUNTY.

May, 1907.

MATTER OF MAYNARD N. CLEMENT AS STATE COMMISSIONER OF EXCISE IN RE JOSEPH H. BRADY.

(54 Misc. 352.)

Headnote

Liquor Tax Law—Proximity of State Hospital.

The provisions of the Liquor Tax Law that traffic in liquor shall not be permitted within a half mile of any building, premises or lands occupied as a State hospital are to be construed liberally in favor of the institution for whose protection they were intended and render such traffic unlawful within the specified distance from contiguous lands held by and belonging to a State hospital and cultivated for garden truck.

A person engaged in liquor traffic has no vested rights in it that cannot be controlled or prohibited by the police power of the State.

Application for an order revoking and cancelling a liquor tax certificate.

H. H. Kellogg, for petitioner.

Joseph M. Belford, for respondent.

There can be no question but what the saloon of Joseph H. Brady is within a half mile of the lands of the Long Island State Hospital at Kings Park. Subdivision 1 of section 24 of the Liquor Tax Law (Laws of 1898, chap. 112 as amended), provides that traffic in liquor shall not be permitted within a half mile of any building, premises or lands occupied as a State hospital. I do not see how the words “ buildii "" premises or lands ” can be confined to the grounds upon whit, the buildings stand. It must include such contiguous proper! and premises as are used by and belong to the institution and would include that portion of the premises from which measurements were made in this case, used and cultivated for garden truck.

p. 191

The tax cases cited by defendant’s counsel are not applicable for the reason that the words of the exempting statutes exclude buildings and premises not exclusively used for purposes stated and also because such statutes are to be construed very strictly against exemptions from taxation, while the Liquor Tax Law is to be construed liberally in favor of those institutions like churches, schools and State buildings which are permitted to be a certain distance away from liquor selling.

hi either has the defendant any vested right in the liquor traffic which cannot be controlled or prohibited by the police power of the State. “ The police power of the State,” says Mr. Justice Field in Crawley v. Christensen, 131 U. S. 91 , “ is fully competent to regulate the business—to mitigate its evils or to suppress it entirely. The manner and extent of regulation rests in the discretion of the governing authority. It is a matter of legislative will only.”

The Legislature could suppress the liquor traffic altogether and then the defendant would be obliged to close his place, although his reasons and arguments advanced now would be equally applicable. Likewise the Legislature can regulate the traffic by prohibiting the sale within half a mile of State grounds and the defendant must submit to the uncertainties and chances of this particular kind of business.

The case of Matter of Cullinan (Burr Certificate), 113 App. Div. 485 , simply passes upon the effect of a stipulation made by attorneys and does not touch the main question.

Application to revoke license granted.