Opinion
April 30, 1913.
Louis M. King and A.M. Sperry, for the appellant.
Frank J. Saxton, for the respondent.
The proceeding is certiorari to review the action of the appellant in refusing to issue to relator a liquor tax certificate for premises known as the Farley building in the town of Corning. It is made to appear that such application was denied for the reason that a certificate authorizing traffic in liquors at such premises was shortly theretofore issued by appellant to one Force, and that the number of certificates of this character then outstanding in such municipality exceeded the ratio prescribed by subdivision 9 of section 8 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], added by Laws of 1910, chap. 494), as amended by chapter 298 of the Laws of 1911. It is further made to appear that Force, although he now holds such prior certificate, has no right of possession to the premises therein described, either as owner or lessee.
It is not important here to inquire as to the validity of the certificate held by Force. This proceeding is not instituted to test that certificate and Force is not a party to this record. So far as he is concerned our inquiry can go no further than the fact that he does hold a certificate, now in force, and issued by the proper and duly authorized officer. We must treat it as a presumptively valid certificate in this proceeding.
Our inquiry then is directed to the right of the county treasurer to issue a certificate authorizing traffic in liquors upon premises as to which there is already a certificate outstanding and in full force. There seems to be but a single provision of the statute directly applicable. By section 17 of the Liquor Tax Law, as amended by chapter 494 of the Laws of 1910, the county treasurer is required to refuse the application for a certificate if traffic in liquors at the premises for which license is sought is prohibited by subdivision 9 of section 8 of such Liquor Tax Law, as amended by chapter 298 of the Laws of 1911. This latter provision is what is commonly referred to as the "Ratio Law," and by it it is forbidden to issue a certificate for any premises in a town, village, borough or city until the ratio of the population of such municipality to the number of certificates issued shall be greater than 750 to 1. This provision is qualified, however, by the exception contained in the same section as follows: "But this prohibition shall not apply to any premises in which such traffic in liquors was lawfully carried on at some time within one year immediately preceding the passage of this act, provided such traffic was not abandoned thereat during the said period."
It is conceded that the premises here involved were used for the traffic in liquors within one year immediately preceding the passage of such act, and that such traffic was not abandoned thereat during such period. It would, therefore, seem plain that the "Ratio Law" has no application to this case.
There being no express statutory prohibition against the issuing of a second certificate, it only remains to determine whether there is any policy of the State, as evinced by the statutes enacted, which prohibits its issuance. I find none. It is true that the courts have referred to the relation between the State and the certificate holder as being contractual in its nature. ( Matter of Hilliard, 25 App. Div. 222; affd., 155 N.Y. 702. ) But even conceding such to be its nature, there is no room for holding that the State is in any wise concerned in the right of the certificate holder to occupy the premises for which he has procured the certificate. The grant from the State is a statutory privilege ( Matter of Lyman [ Texter Certificate], 59 App. Div. 217), and when that privilege is granted, after compliance with the statutory requirements, the State has no further interest in the question of whether the right thereby conferred is ever exercised or not. There is then, no apparent reason, why the issuance of the first certificate has any effect upon the second application. The issuance of the second certificate may create question as to the comparative rights of the two certificate holders, but it is not apparent that such question in any manner involves the State or the privilege granted by the State. Such question involves only the right to use the specific premises involved. The certificate holder who succeeds in maintaining his possession can then exercise the privilege granted by the State, while he who fails in such possession cannot exercise such privilege. As before suggested, the State is not concerned in such controversy.
The order should be affirmed, with costs.
All concurred; McLENNAN, P.J., in result upon the ground that upon all the facts appearing in the return and amended return, the certificate issued to Force was null and void.
Order affirmed, with costs.