People ex rel. Doscher v. Sisson

• Decision Date: 05 February 1918
• Citation: 118 N.E. 789,222 N.Y. 387
• Parties: PEOPLE ex rel. DOSCHER v. SISSON, State Com'r of Excise, et al.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 387

118 N.E. 789

PEOPLE ex rel. DOSCHER

v.SISSON, State Com'r of Excise, et al.

Court of Appeals of New York.

Feb. 5, 1918.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceedings by the People, on the relation of Henry J. Doscher, against Herbert S. Sisson, as State Commissioner of Excise of the State of New York, and another. From an order of the Supreme Court (167 N. Y. Supp. 801), reversing an order of the county judge directing Herbert S. Sisson, as Commissioner of Excise, and David H. Ralston, as Special Deputy for the Borough of Brooklyn, to forthwith issue to relator a liquor tax certificate for the excise year commencing October 1, 1917, and dismissing the writ of certiorari, relator appeals. Affirmed.

The facts, so far as material, are stated in the opinion.

Meyer Kraushaar and Emanuel Celler, both of New York City, for appellant.

William R. Dorman, of New York Ctiy, for respondents.

COLLIN, J.

The relator, Henry J. Doscher, instituted this proceeding, in certiorari, under the authority of section 27, subd. 1, of the Liquor Tax Law (Cons. Laws, c. 34) to review the refusal of David H. Ralston, as special deputy commissioner of excise for the county of Kings, to issue a liquor tax certificate to him for the excise year commencing October 1, 1917. The writ was issued by and was returnable before the county judge, who, upon the papers, which included a return to the writ, after a hearing, by an order directed the issuance of the certificate. The Appellate Division reversed the order and dismissed the writ.

The cardinal facts are: On September 13, 1917, the relator, then holding a liquor tax certificate for the premises No. 5401 Third avenue of the borough of Brooklyn, to expire September 30, 1917, made due and regular application to Special Deputy Commissioner Ralston for a certificate for that place for the year beginning October 1, 1917. The officer refused to issue the certificate for the reason, as stated by him, that the state commissioner of excise by his order made pursuant to and authorized by the provisions of the statute, chapter 521 of the Laws of 1917, prohibited him from issuing the certificate. The relator asserts and argues that (a) the statute is unconstitutional, and (b) if constitutional, did not relieve the officer from the statutory duty to issue the certificate. We will consider first his second proposition.

Chapter 521 of the Laws of 1917, enacted May 16, 1917, is:

‘Section 1. The excise commissioner, with the approval of the Governor, whenever in his opinion the public peace, safety and good order may require, and on the application of the mayor of a city or the town board of a town, may, during the present war, suspend the privileges under liquor tax certificates heretofore or hereafter issued and prohibit the sale of alcoholic beverages for such period or periods and during such days or parts of days in such part of such city or town as he may deem proper in proximity to camps or barracks of state or federal troops or of munition factories or plants or of places of manufacture or production of material used in the manufacture of munitions, and order the closing of places within such limits in which the sale of such beverages has been heretofore or may be hereafter authorized by law. He may also prescribe that the sale of alcoholic beverages, if any, within such limits, shall be exclusively to be drunk upon the premises.

‘Sec. 2. This act shall take effect immediately.’

On July 17, 1917, the state commissioner of excise, having acted and acting in complete accordance with the requirements of the statute precedent to the action, issued an order or proclamation by which he did suspend ‘the privileges under liquor tax certificates heretofore issued and now outstanding, and prohibit the sale of alcoholic beverages during the period of the present war with Germany under any such certificate heretofore issued and now outstanding, or which may be issued for any place’ within a described territory of the borough of Brooklyn. The territory included the premises for which the relator sought the certificate, that is, No. 5401 Third avenue, borough of Brooklyn.

The application of the relator was for a certificate under subdivision 2 of section 8 of the Liquor Tax Law (Cons. Law, c. 34). It was in complete compliance with the provisions of sections 15 and 16. It contained the statement, as section 15 required, that the premises where the trafficking in liquors was to be carried on under the certificate were No. 5401 Third avenue, borough of Brooklyn. The section required the application to contain a statement, among others that the applicant ‘may lawfully carry on such traffic in liquors upon such premises, under such subdivision [2 of section 8] and is not within any of the prohibitions of this chapter.’ Section 15, subd. 5. Section 16 relates to the bond to be given at the time of making the application. Section 17 contains the provisions:

‘When the provisions of sections fifteen and sixteen of this chapter have been complied with and the application provided for in section fifteen is found to be correct in form and does not show on the face thereof that the applicant is prohibited from trafficking in liquor under the subdivision of section eight under which he applies, nor at the place where the traffic is to be carried on, and the bond required by section sixteen is found to be correct * * * then upon the payment of the taxes levied under section eight, * * * the state commissioner of excise shall, at least two days before the commencement of the period for which the tax is paid, or, if the period for which the tax is paid has already commenced, at once prepare and issue to the person making such application and filing such bond and paying such tax, a liquor tax certificate in the from provided for in this chapter, unless it shall appear. * * * ’

[1][2][3][4][5][6] The relator asserts and argues that under section 17 and chapter 521 of the laws of 1917 the state commissioner was bound to issue the certificate subject to its suspension by the vigor of his order of July 17th at the instant of the issuance. Therein he errs. The commissioner was not bound to issue the certificate in case the application showed on its face that the relator was prohibited from trafficking in liquor at No. 5401 Third avenue. If a valid statute, at the time the application was made, prohibited after October 1, 1917, the sale of alcoholic beverages within the territory segregatad by the order of the commissioner which included, as we have stated, No. 5401 Third avenue, he would have been bound to refuse the certificate. Such statute would have been, as the chapter 521 is, in pari materia, and to be read with the sections of the Liquor Tax Law we have referred to. When two or more statutes, whenever passed relate to the same thing or the same class of things or to the same general subject-matter, they are in pari materia, and are to be construed as forming an unitary system and as one statute. All the statutes relating to the subject of the regulation of the liquor traffic are in pari materia. The commissioner could not ignore the prohibiting statute, although the application contained no reference to it. The recognition of and obedience to a statute do not involve an exercise of discretion, and must be yielded by a ministerial officer. The supposed statute existing, the commissioner would have been bound to read it in connection with the application and sections 15 and 17, and to know and act upon the knowledge that the application was for a place at which the traffic was prohibited. The order of the state commissioner, made pursuant to and within valid statutory authority, is to be considered as the act of the state, and in connection with the statutes has the vigor and effect of a statute. People ex rel. Knoblauch v. Warden, etc., 216 N. Y. 154, 110 N. E. 451;Matter of Stubbe v. Adamson, 220 N. Y. 459, 116 N. E. 372. The commissioner or the deputy could not ignore it, even as they could not ignore the supposed statute.

[7][8][9] We are thus brought to the question as to whether or not chapter 521, assuming its validity, and the order of the commissioner, prohibited or suspended the trafficking in liquor at No. 5401 Third avenue, as prescribed by the order. Manifestly, the order effectuated such result in case it was authorized by the statute. It was authorized by the statute if the Legislature intended and expressed the intention that it should be. The reason for and the purpose of chapter 521 are not obscure or doubtful. The intendment and purpose of it was to prohibit, as public peace, safety, and order required, during the present war, the sale of alcoholic beverages ‘in proximity to’ the enumerated places or objects. Because liquor tax certificates authorized their sale, the statute provided for the suspension of the privileges under them. The suspension was but a means to the end that the sale be prohibited. But that end is not dependent exclusively upon that means. It may be accomplished as lawfully and effectively by refusing to issue or by suspending the issuance of a certificate for a place within a territory interdicted to the traffic by the order of the commissioner, and the Legislature intended that such method of accomplishment, whenever and wherever the conditions made it appropriate, should be invoked. Whenever the facts existed, upon which the action of the commissioner depended, he was commanded by the statute to declare the prohibition. The authorization created by the word ‘may’ was mandatory and not permissive. It is a general, although not inflexible, rule that permissive words used in statutes conferring power and authority upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals. People ex rel. Comstock v. Mayor, etc., of City of Syracuse, ...