
    Second Appellate Department,
    July Term, 1904.
    Reported. 97 App. Div. 122.
    In the Matter of the Application of Patrick W. Cullinan, as State Commissioner of Excise, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 3,614, Issued to Joe Kray, Appellant.
    Revocation of a liquor tax certificate—The provision, that the allegations of the petition need not be proved if the certificate holder fails to deny them under oath, is unconstitutional—Reference to take proof.
    Subdivision 2 of section 28 of chapter 112 of the Laws of 1896, as amended by chapter 367 of the Laws of 1900, and chapter 640 of the Laws of 1901, regulating proceedings to revoke and cancel a liquor tax certificate, which provides that on the return of the order to show cause “the justice, judge or court before whom the same is returnable shall grant such order revoking and cancelling the said liquor tax certificate, unless the holder of said liquor tax certificate shall present and file a verified answer to said petition, which answer denies each and every violation of the Liquor Tax Law 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 and may, if deemed necessary or proper, take testimony in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court, without opinion,” is unconstitutional so far as it assumes to dispense with the necessity of proof of the allegations of the petition, if the holder of the certificate neglects to interpose a verified answer denying the charges under oath and raising an issue.
    
      Semble, that the amendment of 1900 being unconstitutional did not affect the provision of the original statute that the justice or court should hear the proofs of the parties, or if deemed necessary or proper, take testimony or appoint a referee for that purpose.
    That in any event, the court had inherent power, in the event of the failure of the certificate holder to interpose a verified answer, to order a reference to take proof of the allegations of the petition. -
    Appeal by Joe Kray from an order of the Supreme Court, made at Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of July, 1903, appointing a referee, and also from an order entered in said clerk’s office on the 12th day of August, 1903, revoking and canceling liquor tax certificate No. 3,614 issued to him.
    
      Uriah W. Tompkins, for the appellant.
    
      Herbert H. Kellogg, for the respondent.
   Jenks, J.:

This proceeding to revoke and to cancel a liquor tax certificate was begun by an order to show cause, granted on October 28, 1902. The holder refused either to appear or to file answer, but moved to dismiss on the unconstitutionality of subdivision 2 of section 28 of the Liquor Tax Lax (Laws of 1896, chap. 112, as amd. by Laws of 1901, chap. 640). The Special Term, upon the moving papers, revoked and canceled the certificate. We reversed the order, but remitted the proceeding to the Special Term for further action in accordance with the law. (Matter of Cullman [Kray Certificate] 82 App. Div. 445.) The Special Term, upon the remittitur and upon notice to the attorney appearing specially for the holder, and hearing him in opposition, made an order of reference for proof of the allegations of the petition and a report. After the filing of the referee’s report and proof of notice to the said attorney of the hearing before the referee, of the filing of his report and the evidence, and of notice of the motion, the Special Term made an order revoking and canceling the certificate. The holder appeals both from the order of reference, and from the order of revocation and cancellation.

Section 28 of chapter 112 of the Laws of 1896 provided that on the return day specified in the order the justice or court should hear the proofs, that testimony might be taken, or that a referee, who should report the evidence to the justice or court, .might be appointed for that purpose, and that if the justice or court was satisfied that the material statements in the application of the holder of such certificate were false, or that “the holder of such certificate is not entitled to hold such certificate,” an order should be granted revoking and canceling it. Chapter 312 of the Laws of 1897 amended section 28, but not in respect to this part of the procedure, but chapter 367 of the Laws of 1900 and chapter 640 of the Laws of 1901 amended subdivision 2 of said section 28 so that it reads: “On the day specified in such order, the justice, judge or court before whom the same is returnable shall grant such order revoking and cancelling the said liquox tax certificate, unless the holder of said liquor tax certificate shall present and file a verified answer to said petition, which answer denies each and every violation of the Liquor Tax Law 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 and may, if deemed necessary or proper, take testimony in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court without opinion.” Our judgment, reported in 82 Appellate Division, 445, is based upon the proposition that the Legislature could not dispense with the necessary allegations and proof of the facts of the offense by enacting virtually that no proof need be made by the State unless the alleged violator denied the charges under oath.

The Legislature, by the amendments of 1900 and 1901, did not materially touch the provision in the original statute (as continued by Laws of 1897, chap. 312), that the justice or court should hear the proofs of the parties, or, if deemed necessary or proper, take testimony or appoint a referee for that purpose, but attempted to dispense with such procedure unless the holder presented and filed a verified answer denying the charges and raising an issue. Legislative dispensation with procedure under specified circumstances is not a general legislative repeal thereof. Sutherland on Statutory Construction (§ 133) says: “The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along.” He cites, inter alia, Ely v. Holton (15 N. Y. 595), and indeed his text is substantially that of Denio, Ch. J., in that case. (See, too, Matter of Estate of Prime, 136 id. 347.) But we are not considering a legislative act of a repeal of procedure, either express or implied, but a legislative dispensation of that procedure in certain cases which the court has pronounced unconstitutional. Endlich on the Interpretation of Statutes (§ 195) lays down the rule: “And an unconstitutional amendment cannot have the effect of repealing by mere implication the original act.” The reason is that as the amendment itself is void, it cannot work a repeal. (See Ex parte Davis, 21 Fed. Rep. 396; Sullivan v. Adams, 3 Gray, 476, 478; Devoy v. Mayor, 35 Barb. 264.)

In any event we have held in Matter of Cullinan (Watson Certificate) (93 App. Div. 540) that the court had inherent power to order a reference in such proceedings.

The orders must be affirmed, with costs and disbursements.

All concurred.

Orders affirmed, with ten dollars costs and disbursements.  