In re Deuel

James Alfred Deuel brings this proceeding under section 38, subd. 3, of the liquor tax law (Laws 1896, p. 69, c. 113, as amended by Laws 1897, p. 339, c. 313), praying for an order revoking and canceling the liquor tax certificate No. 30,603 issued to one Jeal F. Smith. The principal ground of the application is that the license should not have been issued to Smith, because a material statement in the application therefor was false and untrue, in that the consents required by section 17 of the liquor tax law had not been properly filed, as required by the section. An order was issued re

At the outset it is to be noted that, in the original application as finally amended, it was stated that there were 12 buildings occupied exclusively as dwellings, “the nearest entrance to which is within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors is intended to be carried on.” This would require the consent of 9 owners of such buildings to authorize the issuance of the certificate, excluding the consent of the owner of the premises; and there were only 7 consents attached to the certificate. Upon the face of the certificate, therefore, it was defective; “and the certificate could not have been lawfully issued. The owner of the certificate endeavors to explain this by proof to the effect that several of the houses stated to be dwellings were in fact boarding houses, and therefore, not required to be counted. Upon a consideration of the testimony in this respect, the court is not satisfied that the buildings were boarding houses. The only proof upon that subject was the testimony of Michael E. McTygue and Jeal F." Smith. Mr. McTygue stated, in answer to a question by the court, that he did not in fact know that the buildings were boarding houses and that he had no personal knowledge upon the subject. The testimony of Mr. Smith is at variance with the answers to the question in his application, which latter are by the court deemed controlling. Were these dwellings in fact boarding houses, it would be very easy to prove it by producing in court as witnesses the owners of the premises or the parties conducting the boarding houses. There was no such testimony, and, the burden of proof being upon the owner of the certificate to substantiate his contention, the court feels, from the testimony, that it must find that there is no sufficient evidence upon which it could be found as a fact that the dwellings in question were boarding houses at the time when the certificate was issued. It stands then that the application was defective upon its face.

The owner of the certificate contends that notwithstanding this defect in the application, his license should not be canceled because traffic in liquors was actually carried on in the premises in question on March 23, 1896, and that there has been no abandonment of such traffic. The answer to this contention is, in part, contained in the application itself, in that question No. 11, reading, “Since what date have said premises been continuously occupied for such traffic in liquors ?” was wholly unanswered. There was, therefore, nothing before the county treasurer to show that there had been no abandonment of the traffic, as claimed, nor was the certificate issued upon that theory. It clearly appears, both from the application itself and the statement of the county treasurer, made by consent of parties in open court during this proceeding, that the certificate was issued erroneously. The cases submitted by counsel for the owner have been duly considered, and are not deemed to be applicable to the case at bar.

An order may be entered revoking and canceling liquor tax cer