
    Matter of the Petition of Louis P. Rupp, William L. Searles and John F. Bauer, as Executors and Trustees of Adolph Rupp, for an Order Revoking and Canceling Liquor Tax Certificate No. 5803, Issued to Cornelius D. Curnen.
    (Supreme Court, New York Special Term,
    July, 1907.)
    Intoxicating liquors: Granting license — Consent of property owners; Prohibition of traffic in certain localities; Proximity of school or church — Prohibition within certain distance of dwelling-house.
    The provision of the Liquor Tax Law which forbids a license to a saloon within two hundred feet of a church contemplates a building in actual use for religious worship and not a building used for occasional entertainments incidental to a church, and the subsequent use of the building for public worship does not invalidate a certificate granted before such use began.
    Where access to the rear building on a lot is from the yard between the front and rear buildings and access to the yard can only be had from the front of the lot, the direct entrance to the rear building is not the entrance which the statute eonemplates; and, where the entrance to the front building is beyond the prescribed distance, the consent of the owner of the building or his agent is not required.
    Application for cancellation of liquor tax certificate.
    Strong & Cadwalader, for petitioners.
    George W. Weiffenbach, for respondent.
   Bischoff, J.

The proceeding is to revoke and cancel a liquor tax certificate issued under the Liquor Tax Law (Laws of 1896, chap. 112, as amd.), the gravamen of the petition being the respondent’s alleged material misrepresentations when applying for the certificate, he having asserted his proposed saloon to be at least 200 feet distant from the nearest entrance to any building occupied exclusively as a church, and that the consents attached to or accompanying Ms application represented those of at least two-thirds of the owners of all the buildings occupied exclusively as dwellings and within 200 feet of the nearest entrance to the saloon. As I view the evidence the petitioners have failed of the requisite proof in each instance. The respondent’s saloon is located at the northwest corner of West Thirty-fourth street and ISTinth avenue, and the building on the south side of the street, west of the avenue, now used by St. Michael’s Ohurch for religious worship, had not been so used at any time before the respondent applied for and received the certificate. That it had sometimes been used for entertainments the proceeds of which went to defray the expenses of the church’s needs is immaterial. The statute was designed to protect such buildings only as were at the time of the issuance of the certificate used exclusively for religious worship, that is, as a churcha church, referred to as an edifice, in popular comprehension meaning “ a building set apart” for religious worship. Webster’s TJnabr. Diet. Entertainments, whether gratuitous or for revenue, may properly be included among church purposes, but if the Legislature intended to protect buildings used for church purposes generally it may reasonably be assumed that it would have said so in unequivocal language. As it is, section 24, subdivision 2, of the Liquor Tax Law prohibits the issuance of a certificate only when the building is used “ as a church ” exclusively, thus seemingly permitting the certificate if the building is used for purposes other than worship. It could not reasonably be contended that the protection would apply if the building is in part used for business or dwellings, though the revenue thus derived contributed towards the church’s support. Zinzow v. Schmidt, 18 Mise. Rep. 653, cannot be said to be to the contrary. All that was there held was that occasional entertainments, incidental to the church, in a building in actual use for religious worship did not do tract from the building’s exclusive character “ as a church.” The foundation walls of a building intended when completed for religious worship certainly imply a church purpose, yet it was held (People ex rel. Sweeney v. Lammertz, 18 Mise. Rep. 343; affd. 14 App. Div. 628) that the walls did not constitute a building occupied exclusively as a church within the meaning of the statute. That since the issuance of the certificate the building alluded to has been dedicated to religious worship does not, of course, impair the respondent’s truthfulness when he represented at the time of his application for the certificate that it was not so used. ISTor can such post certificate dedication be made a ground for the revocation of the certificate. The statute affords protection to the church against the saloon-keeper’s invasion of the stated precinct, but it does not ordain a loss or forfeiture of the latter’s license or certificate because, after it was lawfully issued to him and he was thus encouraged to invest his means in legitimate business, a church, forsooth, should be established within what to him would have been forbidden territory had the church preceded him. That such was not the legislative intention was clear, I think, from the fact that all persons lawfully engaged in the liquor traffic when the law went into effect were expressly permitted to continue at the place or places where such traffic was at the time being carried on (§ 24, subd. 2). The church was thereafter to be secure against the saloon-keeper’s approach, but it would require some additional legislation, which is beyond the power of the courts, to say that the saloon-keeper must flee when the church voluntarily seeks the closer propinquity of his establishment.

By section 34 of the statute it is made a crime punishable by both fine and imprisonment for one to traffic in liquors who is prohibited from so doing,” and if the petitioners’ contention be sound the respondent became a criminal, amenable to the penal provisions of the statute, and his lawful business an unlawful one, with the advent of the church at a distance within 200 feet from the nearest entrance to his established saloon. That would seem to be unjust, and happily, as I read the law, the Legislature has not expressed that to he his will. Penal laws are to be strictly construed, and when any doubt as to their meaning arises that doubt is to be resolved in favor of the accused, and “ the more reasonable and restricted interpretation of the penal provisions alluded to shall prevail lest the unwary and morally innocent of attempted violation of the law be led into a trap arising from the imperfect expression of legislative intention.” People ex rel. Gaffney v. Mayer, 41 Misc. Eep. 315. The only evidence offered to substantiate the charge that the respondent’s representation as to the distance between the nearest entrance to his saloon and the nearest entrances to buildings occupied exclusively as dwellings was untrue related to the rear of the premises No. 412 West Thirty-fifth street, and to the premises No. 404 West Thirty-fourth street. The entrance to the rear building of No. 412 West Thirty-fifth street is from the yard between the front and rear buildings, and access to the latter can only be had from Thirty-fifth street. Por the purposes of measurement this direct entrance to the rear building is not one within the meaning of the statute (McDougal v. Malaghan, 184 N. Y. 253; affd., 108 App. Div. 355), and while the evidence may not suffice to show this rear building to be actually intended for use as a paint shop or the front room on the first floor of the premises No. 404 West Thirty-fourth street as a city marshal’s office, it remains that to demonstrate the respondent’s misrepresentation it was incumbent upon the petitioners to show that the premises particularly alluded to were entirely and exclusively used at the time of the respondent’s application for the certificate, or so intended to be, as dwellings. Obviously, it does not follow that because the one was in part used as a paint shop or the other as a city marshal’s office that either was used or intended to be used for dwellings exclusively, and without proof of such use or intended use the falsity of the respondent’s representations is not apparent. The proceeding is dismissed, with costs.

Application denied.  