
    The People of the State of New York ex rel. Daniel F. Flinn and William J. Cassidy, Relators, v. Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Respondent.
    Third Department,
    January 8, 1906.
    Liquor Tax Law-?-when certiorari refused" to review right of Commissioner of Excise to make enumeration of inhabitants of city and to increase cost of liquor tax certificate.
    Certiorari will not lie to "determine the right of the. State Commissioner of Excise Jo take au enumeration of the inhabitants of the city of Schenectady,, pursu- ", ant.to section 11 of the Liquor Tax Law, and to increase the cost of liquor tax ■ certificates in said city, when, since the issue of said-writ, a State, census of the inhabitants of sáid city has been taken, and the relator.paid the increased sum without a demand that the certificate issue ■ at the former cost, but with a mere protest at said increased cost.
    The acts .of the State Commissioner of Excise in making such enumeration" and in certifying to the county treasurer the -increased -cost of licenses were not such final determination of the rights of .a relator paying said increased cost as entitles him to a common-law certiorari to review such acts.
    Certiorari issued out of the Supreme Court and attested oil the 27th day of -May,. 1905, directed to Patrick W. Cullman,' as State Commissioner of Excise of the State of Mew York, commanding him to - certify and return- to the office of the clerk of the county of Schenectady all and singular his proceedings had in causing to be made an enumeration of the inhabitants of the city of Schenectady', and in'certifying the same to. the county treasurer of the county of Schenectady.
    
      Flinn & Roland [J. Newton Fiero of counsel], for the relators.
    -William F. SoKenclc \_Theodore F. Hanaook of counsel], -for the respondent..
   Chase, J.:

The ..relators, for two years and more prior to May 1, 1905, were partners engaged in the business of trafficking-in liquors at Schenectady, M- Y. During that time they held a liquor tax certificate permitting them to traffic in liquors under subdivision 2 of-sectibn 11 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312, and Laws of 1903, chap. 115). The city of Schenectady was incorporated in 1798 (Laws of 1798, chap. 50). By the State census taken in 1892 the population of said city was found to be 22,858, and by the United States census taken in 1900 the population of the city was fouud'to be 31,682. The population of said city increased very rapidly after 1900. By chapter 204 of the Laws of 1902 the boundaries of said city were changed, by which change the area of said city was nearly doubled, and more than 8,000 inhabitants were added to said city by reasyn of such increase of territory. By chapter 371 of the Laws of 1903 the several acts relative to the city of Schenectady were generally amended and consolidated. After the passage of said acts of 1902 and 1903 liquor tax certificates were granted to the relators to traffic in liquors under said subdivision 2 of section 11 of the Liquor Tax Law on payment of $300 until 1905. Pursuant to the directions of the State Commissioner of Excise a special agent of said Commissioner, commencing January 24, 1905, and ending January 30, 1905, made an enumeration of the inhabitants of said city and found the number thereof to.be 55,382. Said State Commissioner of Excise on January 31, 1905, wrote a letter to the county treasurer of the county of Schenectady, of which the following is a copy: •

“ Pursuant to section 11 of the Liquor Tax Law, the Department has caused to be taken an enumeration of .the city of Schenectady,. Schenectady County, N. Y., which enumeration was closed on January 30th, 1905, and by and from the result df such enumeration there has been ascertained and determined a population of 55,382 inhabitants in said city. The tax which will hereafter be assessed for liquor tax certificates issued for the city of Schenectady will be as follows:
'“Subdivision 1, $750.
“ Subdivision 2, $450 * "*

On May 1, 1905, the relators went to the county treasurer and paid to him $450, and obtained, a liquor tax certificate under said subdivision 2 of section 11 of the Liquor Tax Law for the year commencing that day. At the time of paying said money and taking such certificate, the relators filed with the county treasurer a letter signed by them and directed to said county treasurer, of which the following is a copy :

• “Enclosed find our check to cover-cost of license for ensuing year; we protest payment of increase in license over, last year, amounting to One hundred and fifty ($150) Dollars.” , .

Thereafter and on'May 27, 1905, the relators presented their, petition to the Supreme Court and obtained the writ of certiorari now before us in which writ they claim that the action-and determination of the State Commissioner of Excise in making said enumeration and certifying the same to the county treasurer of the ' county of Schenectady .was illegal, and they asked that the same may be reviewed and corrected The $450 was not paid under a mistake of fact. (Baker v. Bucklin, 43 App. Div. 336.)

Do effort, was made by the relators to obtain from the county treasurer a liquor tax certificate on payment of $300. The certifícale by the State. Commissioner of Excise to'the .county treasurer, although evidence of the result of the enumeration taken by him, did hot compel the relators to pay $450 instead of $300 for the liquor tax certificate, unless the statute authorized the State Commissioner of Excise to make the enumeration. (Matter of McGreivey, 37 App. Div. 66; affd., 161 N. Y. 645; Lyman v.. McGreivey, 25 App. Div. 68; Matter of Von Steenburgh, 24 Misc. Rep. 1; People ex rel. Cramer v. Medberry, 17 id. 8.)

The question "as to the enumeration cannot arise on appliea-, tions to issue liquor tax certificates hereafter, for since the granting .of this writ a'State census has been taken, including the inhabitants of the city, with its., enlarged boundaries pursuant tó chapter 83 of the Laws of 1905 (as amd, by Laws of 1905, chap. 144).

It is unnecessary to discuss the question as toi whether Schenectady was’a “new city” in January,. 1905, or as.to1 whether tlib writ of certiorari provided by subdivision 1 of section 28 of the Liquor Tax Law (as amd. by Laws of 189), chap. 312) is exclusive -of the common-law remedy by certiorari because these questions .as now presented are academic.

It is not contended that the relators can obtain any money or effective relief in this proceeding. By section 13 of said Liquor Tax Law (as amd. by Laws of 1903, chap. 486), one-half of the taxes collected pursuant to."the act must be paid by the county treasurer to the Treasurer of the State of Dew York, and one-half thereof to the treasurer of the city of Schenectady, in which the traffic in liquor is carried on within ten days after the receipt thereof after deducting the amount allowed for collecting the same. The statute operates upon the fund from the very moment of its collection (People ex rel. Einsfeld v. Murray, 149 N. Y. 367), and it is to be presumed that the money received by the county treasurer from the relators has been paid over as provided by the statute. The State Commissioner of Excise, to whom this writ is directed, is not in the possession of said moneys. The only purpose bf this writ suggested to us is that if the relators can get an expression of the court as to the right of the State Commissioner of Excise to make the enumeration as stated that perchance' some legislation may be obtained -by which a claim can be presented against the State of. Hew York for excess of liquor taxes paid by the relators and have such claim heard and determined by the Court of Claims. We conclude that the directions of the State Commissioner of Excise in regard to said enumeration and a certificate to the county treasurer were not such final determinations of the rights of the relators as to entitle them to a common-law writ of certiorari to" review said direction and certificate.

The writ of certiorari should be dismissed, with fifty dollars costs and disbursements.

All concurred.

Writ of certiorari dismissed, with fifty dollars costs and disbursements.  