Opinion
Argued May 29, 1956
Decided July 11, 1956
Appeal from the Appellate Division of the Supreme Court in the fourth judicial department, JACOB A. LATONA, J.
Nathaniel A. Barrell for appellant.
John F. Dwyer, District Attorney ( Leonard Finkelstein of counsel), for respondent.
Jacob K. Javits, Attorney-General ( Robert W. Bush and James O. Moore, Jr., of counsel), in his statutory capacity under section 71 of the Executive Law.
Defendant was convicted of unlawfully operating a filling station in that he willfully failed to procure a license from the Department of Taxation and Finance as required by section 283-a of the Tax Law. The Attorney-General concedes that the issuance of a license may be compelled by mandamus, and once issued may not be taken away except by due process. We are agreed that section 283-a of the Tax Law is valid.
We do not now concern ourselves with the unreasonableness of any regulation, for such question is not an issue here; nor are the alleged serious future dire consequences which defendant fears and envisions. We will face those problems when they present themselves. "Constitutional questions are not to be decided hypothetically" ( Annister Mfg. Co. v. Davis, 301 U.S. 337, 353; see, also, Salzman v. Impellitteri, 305 N.Y. 414, 420).
The judgment appealed from should be affirmed.
If section 283-a of the Tax Law is a licensing statute it is unconstitutional since it sets no sufficient standards for administrative grant, denial or revocation ( Packer Collegiate Inst. v. University of State of New York, 298 N.Y. 184, 189, 190). It would be no defense to such invalidity that the State is ready and willing to grant a license to this appellant ( Packer opinion, supra). However, the undisputed history of this law's enforcement since 1932 shows that it has always and in all respects been treated as a mere registration device to provide the State, for proper purposes of tax revenue protection, with a list of retail gasoline and oil vendors. So construed, it is not invalid. I concur for affirmance on that ground only.
CONWAY, Ch. J., FULD and BURKE, JJ., concur with FROESSEL, J.; DESMOND, J., concurs for affirmance in a separate memorandum in which DYE and VAN VOORHIS, JJ., concur.
Judgment affirmed.