In re Cullinan — 78 N.Y.S. 466

Majority

p. 466

In re CULLINAN, State Com’r of Excise.

(Supreme Court, Appellate Division, Second Department.

November 14, 1902.)

Headnote

1. Appeal — Waives op Objections.

Where defendant filed a verified answer to a petition to cancel his liquor tax certificate, objecting to the sufficiency of the petition, he waived his right to make the objection on appeal that the statute relating to such cancellation was unconstitutional.

2. Liquor Tax Certificate — Cancellation.

Liquor Tax Law, § 28, requiring that an application to cancel a liquor tax certificate must state the facts on which it is based, was sufficiently

p. 467

complied witli by an application on information and belief, but accompanied by affidavits made a part thereof, stating, on'the personal knowledge of the affiants, facts justifying the cancellation of the certificate.

Appeal from special term.

Application by Patrick W. Cullinan, as state commissioner of excise, for an order canceling a liquor tax certificate issued to Max Micha. From an order canceling the certificate, Micha appeals.

Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

C. J. G. Hall, for appellant.

William G. Van Loon (Herbert H. Kellog, on the brief), for respondent.

Patrick W. Cullinan, state commissioner of excise, instituted this proceeding by a petition, accompanied by an order to show cause, under the provisions of section 28 of the liquor tax law. On the return day fixed in the order to show cause, an order of reference was made, to take proof and report the evidence to the court without opinion. Preliminary objection having been made to the jurisdiction of the court and the sufficiency of the petition, the order of reference provided that on the coming in of the report it might be brought on for a hearing upon the merits by either party. Upon such hearing the court entered an order revoking and canceling the liquor tax certificate involved, and appeal comes to this court.

The appellant, Micha, urges that so much of subdivision 2, § 28, of the liquor tax law, as provides for the cancellation of a liquor tax certificate by civil proceedings, is unconstitutional; and while we are disposed to agree with him that there is an element of unconstitutionality in the statute, as suggested in Re Peck, 167 N. Y. 391 , 53 L. R. A. 888 , we are convinced that the appellant, not having raised this objection below, and having put in a verified answer, is not in a position to test the constitutional question here. His preliminary objections, so far as we are able to gather them from the record, were based upon the proposition that the petition under which the proceeding was instituted did not state facts sufficient to give the court jurisdiction, and not that there was any inherent defect in the statute. Relying upon these objections, the appellant answered the charges set forth in the petition under oath, and the issues thus raised were tried and found against him. The rule is well settled that a party may waive a rule of law or a statute, or even a constitutional provision, enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and, having once done so, he cannot subsequently invoke its protection. Sentenis v. Ladew, 140 N. Y. 463 , 466, 35 N. E. 650 , 37 Am. St. Rep. 569 . The appellant, having put in a verified answer, is in no situation to urge here that he had a constitutional right to refuse to answer under oath. This is, as we understand it, the extent of the condemnation of the provisions of section 28 of the liquor tax law, contained in Re Peck, supra. “It is,” say the court, “the constitutional right of the party charged with

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the commission of acts which, if true, constitute a crime, or create a penalty, or impose a forfeiture, to answer without verification.” The rule of law which the courts will enforce in this class of cases, when objection is duly and 'seasonably made, is waived by the plaintiff when he brings the action, and by the defendant if he pleads generally and goes to trial without insisting upon its benefits. Sentenis v. Ladew, supra. It has been held that the property right of the owner of a liquor tax certificate is a limited right, and that it is not protected by the constitutional right of a jury trial (In re Lyman, 59 App. Div. 217 , 220, 69 N. Y. Supp. 309 , and authorities there cited); and we are unable to discover that any of the appellant’s constitutional rights which have not been waived have been denied.

But the appellant urges (and it was this point which was suggested in the preliminary objections) that the petition was not sufficient in form or contents to give the court jurisdiction. The statute requires that the facts shall be stated upon which the .application is based, and the contention of the appellant is that the petition of the state commissioner of excise, being made on information and belief, does not constitute a sufficient allegation of facts to give the court jurisdiction. We should find no difficulty in concurring in this view, were it true that the petition in the matter now before us did not state the facts positively. Such was the defect in the petition before the court in Re Peck, supra, and the court were unanimously of the opinion that it was insufficient. But in the matter now before us, while the formal petition of the state excise commissioner is made on information and belief, as it necessarily must be in a large majority of cases in which he is called upon to act, the petition is accompanied by the affidavits of two men, and these affidavits are made a part of the petition, in which they detail minutely the facts on which the petition is based; and these affidavits allege, upon the personal knowledge of the men making them, the violations of the liquor tax law, which, if established, justify the revocation of the certificate. This is, it seems to us, a full compliance with the provisions of the statute, which is to be given a reasonable construction, in harmony with the established practice of the courts. People v. McGowan, 44 App. Div. 30 , 60 N. Y. Supp. 407 . The language of the statute is not that the petitioner must state the facts, but that “such petition shall state the facts upon which the application is based”; and this is done when the state excise commissioner takes the formal steps, and supplements his petition with the positive averments of all essential facts made by persons who were familiar with the violations of law depended upon to justify the revocation. The legislature could never have intended that the liquor tax law should depend for its enforcement upon private citizens, or that the state excise commissioner should personally investigate and prosecute all violations of the law. He is authorized to take the initiative, and his petition, when containing the facts, sworn to by those who are in a position to know, is sufficient in law for the purpose of giving the court jurisdiction.

We find nothing in the merits of the proceeding to warrant interr ference, and see no reason to hold that the court has not properly

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disposed of the question of costs. See note on page 112, Liquor Tax Law, Annotated Edition, by State Commissioner of Excise, 1901.

The order appealed from should be affirmed, with costs. All concur.

Cases cited

In re Peck 167 N. Y. 391 N.Y. 1901-06-11 p. 467
Sentenis v. Ladew 140 N. Y. 463 N.Y. 1893-12-19 at 466, 35 p. 467
In re Lyman 59 App. Div. 217 N.Y. App. Div. 1901-03-15 at 220, 69 p. 468