Summary
In Matter of Lyman (163 N.Y. 536) the court said: "At the time this proceeding was commenced, the appellant did not hold the certificate, but had prior thereto voluntarily surrendered it. * * * The question, therefore, is not whether his license could be canceled if he still held it, but whether it can be canceled for the sole purpose of forfeiting the rebate.
Summary of this case from People ex rel. Ernest Ochs, Inc. v. HilliardOpinion
Argued June 7, 1900
Decided June 22, 1900
Moses Shire for appellant.
N.N. Stranahan for respondent.
It is not disputed that the application made by the appellant for a hotelkeeper's license or certificate was defective in that it contained no answer to question No. 26. The appellant voluntarily surrendered the certificate before this proceeding was commenced. The first question presented by the appeal is whether the defendant's failure to answer question No. 26 in his application was a false answer. The practical question with the defendant is whether he is entitled to the rebate of the tax paid by him for the unexpired part of the license year. The petition for the cancellation of the certificate alleged in its fourth paragraph as grounds therefor that a material statement in the application for the certificate was false, namely, the answer to question No. 26 therein. The question was not answered at all, and the argument is that the failure to answer was intended as an affirmative answer, or was equivalent to it. Plainly, no answer is not an affirmative answer; rather it suggests that an affirmative answer could not be made. The evidence shows that an affirmative answer would have been false. We cannot suppose that, if the officer whose duty it was to examine the application had carefully performed that duty, he would have issued the certificate. We may rather suppose that the officer negligently assumed an affirmative answer. The evidence does not support the finding of a false answer, and in that respect does not sustain the order appealed from. The question remains whether it can be sustained upon any other ground. Other grounds were set forth in the 5th, 6th and 7th paragraphs of the petition for cancellation. The matter came before the Special Term upon the defendant's demurrer to the petition and other objections; these were overruled, the proceeding was referred to a referee to take and report the evidence, and it was further "Ordered, the petitioner consenting thereto, that the allegations contained in the petition, being the allegations contained in paragraphs Nos. 5th, 6th and 7th, other than those charging false statements made in the application for the certificate in question, be and the same are hereby stricken out."
The respondent contends that, after striking out all statements in said paragraphs other than those charging false statements made in the application for the certificate, enough remain to present the issue, whether, apart from the alleged false statement, the appellant was entitled to hold such certificate. As at the time this proceeding was commenced the appellant did not hold the certificate, but had prior thereto voluntarily surrendered it, the issue as to his right to hold it is academic so far as it operated as a license to defendant to continue the sale of liquor, and is practical only so far as it involves the defendant's right to receive the rebate of the money for the unexpired part of the license year. Section 25 of the Liquor Tax Law provides that, if within thirty days from the receipt of the certificate for canellation, proceedings shall be instituted for its revocation and they be determined against the holder, all rebate thereon shall be forfeited. The question, therefore, is not whether his license could be canceled if he still held it, but whether it can be canceled for the sole purpose of forfeiting the rebate. The argument that as he was not entitled to receive the certificate, he was not entitled to hold it, may be effective to deprive him of it as a license, and not effective to forfeit his right to the rebate. In the former case the statute should be construed so as to accord to fraud no favor; in the latter case it should be so construed as not, by a hostile construction of doubtful phrases, to visit a penalty or forfeiture upon a former certificate holder. The statute (Sec. 28, subdv. 2) states three grounds of cancellation: 1st, material false statements in the application for the certificate; 2nd, violation of any provision of this law, conviction for which would cause a forfeiture of such certificate; 3d, or for any other reason that he was not entitled to hold such certificate. It will be seen that the statute so specifies the first and second grounds that the certificate holder can understand what they are, but when he comes to the third provision, he finds that in place of a specific ground so stated that he can understand it, "any other reason" is substituted. What is "any other reason?" In the absence of statutory specification, is the certificate holder remitted to conjecture, and must he conjecture aright under penalty of forfeiture of all rebate after he has voluntarily surrendered his certificate for cancellation? Forfeitures are odious in law. Where the forfeiture, after the voluntary surrender of the certificate, rests upon "any other reason" than the grounds specifically stated in the statute, we think it should appear in the statute itself, or in some other statute, what is meant by the phrase "any other reason." It should not be left to the accuser to devise it, or for the court to spell it out in penal cases from reasons of public policy. But if it could be thus devised, such reason should be clearly stated in the charge against the defendant. Here the charge is that the defendant's answer to question No. 26 was false, and then follow specifications of such alleged falsity, closing with this conclusion of law: "And for that reason" (namely, the false statement as thus shown by the specifications) "the said Speidel was not entitled to receive and is not entitled to hold such certificate." Thus the respondent infers that, although the charge of a false statement cannot be sustained, the specifications in support of the charge do not fall with the charge itself, but may be used to imply and define some reason permissible to be implied by the phrase "any other reason," and thereupon the defendant may be convicted of not being entitled to hold the certificate.
We cannot concur in this view when the revocation of the certificate is made the instrument of forfeiture in proceedings taken after the voluntary surrender of the certificate. We, therefore, hold that when the charge of making a false statement failed, no other charge remained upon which the defendant's certificate could be revoked or canceled.
The order should be reversed and proceedings dismissed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT and CULLEN, JJ., concur, and VANN, J., concurs in result.
Order reversed, etc.