
    The People of the State of New York ex rel. Louis Buchler and Another, Relators, v. The Special Term of the Supreme Court and Leonard A. Giegerich, the Justice Presiding at Said Special Term, and Maynard N. Clement, as State Commissioner of Excise, Respondent.
    First Department,
    April 15, 1910.
    Intoxicating' liquors — revocation of license — effect on owner of premises — constitutional law — writ of prohibition denied.
    •
    A writ of prohibition cannot issue to forbid the Special Term and the Commissioner of Excise from proceeding under subdivision 2 of section 27 of the Liquor Tax Law to revoke a certificate for a violation of the statute even though a revocation of the certificate will prevent the owner of the premises, not made a party, from using them for the sale of liquor for one year.
    The writ will not he granted because of the alleged unconstitutionality of said section in depriving- the owner of his property without due process of law, for that question can only he raised in an appropriate proceeding if the Commissioner of Excise attempts as against the owner to enforce an unconstitutional-provision of the statute.
    Motion by the relators, Louis Buchler and another, for an alternative writ of prohibition.
    
      Augustus Van. W-yek, of counsel for the relators.
    
      Herbert H. Kellogg and Robert J. Fish,, of counsel for the respondent.
   Ingraham, P. J.:

This is an application for a writ' of prohibition directed to the Special Term of the Supreme Court and to the Commissioner of Excise restraining- any further proceedings in a- special proceeding in the Supreme Court of the county of Hew York, wherein tiie Commissioner of Excise applied for an order revoking aiid canceling liquor tax certificate Ho. -1,990, issued to one John Harrington.

Subdivision- 2 of section 27 of the Liquor Tax Law (Consol. Laws, chap. Si [Laws of 1909, chap. 39], as amd. by Laws of 1909, chap. 281) provides that “At any time after a liquor tax certificate has been issued to any person under section eight of this chapter, said liquor tax certificate may be revoked and canceled * * * if any provi- - sion of this chapter is violated at the place designated in said certificate as the place where such traffic is to be carried on by the holder of said certificate. *' * * For the purpose of obtaining such an order, the State Commissioner of Excise * * * may present a verified petition to a justice of the Supreme Court, or a Special Term of the Supreme Court, of the judicial district * ' * * in which such traffic in liquors is designated to be carried on, or in which the. holder of such certificate resides ■* * * for an order revoking and canceling such certificate upon either or all of the grounds hereinbefore stated. Such petition shall state the facts upon which such application is based. _* * * Upon the presentation of the petition, the justice, judge or court shall grant án order requiring the holder of such certificate to show cause before such- justice, judge or court, or before a Special Term of the Supreme Court of the judicial district, on a day specified therein, not more than ten days after the granting thereof, why an order .revoking and canceling such liquor tax certificate should not be granted. * * * A copy of such petition and order shall be served upon the holder of such certificate, and the officer issuing, the same, or his successor in office, and upon the State Commissioner of Excise, in the manner directed by such order, not less than five days before the return day thereof. On the day specified in such order, the justice, judge or court before whom the saméis returnable shall grant such order revoking and canceling the said liquor tax certificate, unless the holder of said liquor tax -certificate shall present and file an answer to said petition, which answer denies each and every violation of this chapter alleged in the petition, and raises an issue as to any of the facts material to the granting of such order, in which event the said justice, judge or court shall hear the proofs of the parties in relation to the allegations of the petition or answer. If the said evidence establishes any of the facts hereinbefore set forth as sufficient to revoke and cancel a certificate, an order shall be granted by said justice, judge or court revoking and canceling such certificate.”

In pursuance of this provision a proceeding was instituted by the Commissioner of Excise on the 8th day of February, 1910, for an order revoking and canceling liquor tax certificate Ho. 1,990 issued to one John Harrington, and an order was obtained from one of the justices of the Supreme Court requiring’ the said Harrington to show cause on the 17th day of February, 1910, at a Special Term of the Supreme Court held in and for the county of Hew York. The petition upon which this order was granted alleges that the said Harrington did, on various days, between the 1st of October, 1909, and the 3d of February, 1910, suffer and permit the premises, described in said application to revoke the said license, to become, be and remain disorderly; and that in other respects the said Harrington violated the provisions of the Liquor Tax Law. This order and petition seem to have been duly served upon Harrington, and he filed his answer denying'the allegations of the petition, and the proceeding being thus at issue was regularly brought on for trial at Special Term.

The petitioners herein alleged that they were, prior to October 1, 1909, the date that the certificate was issued, the owners of a lease of the premises at which this liquor traffic was to be carried on, which lease does not expire until 1917; that the petitioners owned the appointments and fixtures of said place which were of the value of $5,000, and that said lease was worth the sum of $50,000; that the petitioners were not made parties to the proceeding instituted by the Commissioner of Excise to revoke and cancel the certificate; nor have they ever been made parties thereto; that subdivision 8 of section 17 of the Liquor Tax Law, as amended by chapter 144 of the Laws of 1908, provides that if the certificate holder suffered'and permitted the premises named in the certificate, or any part thereof, to become disorderly no new certificate should be issued to any person for said place for a period of one year from the date of the entry of the final order canceling such certificate; and that such an. order would cause a serious-loss to the petitioners by preventing them from using the said premises for the purpose of the sale of liquor ; that such provision of the Liquor Tax Law is unconstitutional, in that it deprives the petitioners of their property without due process of law, and that a judgment against Harrington in the proceeding before referred to would automatically be a judgment against the petitioners restraining the use of the premises so leased by them for the sale of liquor on the premises for a period of one year from the date of the entry of the order canceling the certificate; arid, therefore, ask that a writ of' prohibition issue restraining the Special Term of the Supreme Court and the said Commissioner of Excise from proceeding.with the said special proceeding against Harringion.

The provision of the Liquor Tax Law, under which this proceeding against Harrington was instituted, requires, the order to show cause by which the proceeding is instituted, with the petition upon which it was granted, to be served- upon the holder of the liquor tax certificate, and upon the conviction of-such holder of a liquor tax certificate, the court or justice before whom- the proceeding was heard'is-required to grant an order canceling the certificate. The petitioners are not parties to that proceeding, and the statute does not require that they should be made parties. They have a right to be made parties to the proceeding if they so elect. (Matter of Jennings, 130 App. Div. 647.). So far as appears this proceeding is in accordance with the provisions of the Liquor Tax Law, and under it the Special Term-of the Supreme Court has jurisdiction .to hear and determine the question presented upon the petition and answer thereto. There is nothing in this provision of the law that violates either the State or Federal Constitution. There must be served- upon the holder of the liquor tax certificate the order to show cause which institutes the proceeding, a copy of the petition upon which it was granted, and he is given an opportunity to file an answer to that petition and to have the' question raised by such answer, judicially determined. If .it is proved that he is guilty of a . violation of the Liquor Tax Law, it is the duty of the court to enter an order canceling his certificate. The various provisions of the statute which define the effect of such an order after it is entered have no relation to the provisions relating to the special proceeding. If the statute gives to such an order an effect which is in violation of the Constitution because of its effect upon the property of persons not parties to the proceeding, a question upon which we express no opinion, the provision of the statute would be-void as condemned by the Constitution. It would not afféct the jurisdiction of the court to hear and determine the proceeding before it on the order so far as it-affects the parties to the proceeding. The court clearly has jurisdiction and is bound to entertain the application of the State Commissioner of Excise, is bound to hear and determine the issues presented by the petition and answer relating tó a violation of the provisions of the Liquor Tax Law, and is bound to enter an order canceling the certificate if it is proved that the holder of the certificate has violated its provisions. As to the effect of that order when entered, neither the Special Term nor this court has at present any concern. If either the Commissioner of Excise or any other person attempts to give an effect to that order which is not justified bylaw or which is not within the power of the Legislature to enact, the courts of this State are open to the relators and all other persons to protect their rights; but the fact, if it be a fact, that the statute says that the order should be given an effect which the Legislature had not the power to give to it is no reason why the court should be prohibited from proceeding within its undoubted jurisdiction. There would seem to be, therefore, no justification for a writ of prohibition, and the application should be denied, .with fifty dollars costs and disbursements, and the Special Term and the State Commissioner of Excise is authorized to proceed as if the order to show cause herein had not been granted.

Laughlin, Clarke, Scott and Miller, JJ., concurred.

Application denied, with fifty dollars costs and disbursements. Settle order on notice. 
      
      
         Sic. See Gen. Laws, chap. 29 (Laws of 1896, chap. 112), §17, subd. 8, as »md. by Laws of 1908, chaps. 144, 350; revised into Consol. Laws, chap. 34 (Laws of 19Ú9, chap. 39), § 15, subd. 8, as amd. by Laws of 1909, chap. 281.— [Rep.
     