
    In the Matter of the Application of Hermann Ahlers, Respondent for a Writ of Certiorari Commanding Maynard N. Clement, as State Commissioner of Excise, and William Watson, as Special Deputy Commissioner of Excise for the Borough of Brooklyn, Appellants, to Certify, etc., Relating to the Refusal to Issue to the Said Hermann Ahlers a Liquor Tax Certificate, etc., for Premises No. 210 Lewis Avenue, Borough of Brooklyn, in the City of New York, etc.
    Second Department,
    December 30, 1910.
    Intoxicating liquors — Liq/aor Tax Law construed — automatic advance in rabies on increase in population.
    Under the Liquor Tax ilaw the rate of the liquor tax payable in the borough of Brooklyn is auto- .atically advanced by the increase of population as shown by the Federal cemdus as well as by the increase shown by the State census.
    Hence, as the B/ederal census of 1910 was completed prior to the fifteenth day of Septembeigm that year, on which day liquor taxes are payable in advance, an applicant in the borough of Brooklyn applying for a certificate must tender the amount to which the tax has been automatically advanced by the increase in (population as shown by the Federal census.
    ^/Appeal ' by Maynard H. Clement, as State Commissioner of Excise, and another from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of October, 1910, directing the appellants to issue' to the relator herein a liquor tax certificate.
    
      . Robert J. Fish. [Herbert II. Kellogg- andWilliam G. Van Loon with him on the brief], for the appellants.
    
      Grant G. Fox \George F. Mott, Frederick F. Grant, Aslibel P. Fitch and Morton G. F'itch with him on the brief), for the respondent.
   Carr, J.:

As a result of the census taken in 1910 under the provisions of the acts of Congress . thereto applicable, it was found that the population of the borough of Brooklyn in the city of Hew York amounted to 1,634,351 persons: This .census was completed prior to'September 15, 1910. By section 9 of the Liquor Tax Law of this State (Consol. Laws, chap. 34; Laws of 1909, chap. 39) the liquor taxes are payable in advance on the fifteenth day of September of each year. ^' The relator Ahlers is engaged in business in the borough of Brooklyn as'retail dealer in liquors. He applied for the issuance to. him of a liquor tax cJrtificic»(e and tendered the amount of. $975 in payment of the tax thereon. 1A. certificate was refused unless -the relator paid the sum of $1,200. Tfite tender made by Ahlers was of an amount legally sufficient for the pmrpose, unless the rate of liquor tax payable in the borough of Brooddyh had been automatically advanced to the sum of $1,200 by the nncrease in population shown by the census aforesaid; The contentions ..of the State Department of ■ Excise is that there was such an autbqnatic advance. The relator thereupon brought this proceeding tó-, review the determination of the State Commissioner of Excise'yjis to the amount legally payable on the liquor tax certificate. It waXlield at Special Term that the amount so payable in advance on September 15, 1910, was the sum of $975. (69 Misc. Rep. 177.) Erorhj. that decision this appeal was taken to this court. The question involved is one of statutory construction, and arises from the true in terpr motion of subdivision 8 of section 8 of the Liquor Tax Law (as amd. by Liaws of 1909, chap. 281, and Laws of 1910, chap. 485). Before passing mq a consideration of the language of the statute which gives rise to this controversy, it may be well to make a few observations relative to the general aspects of the statute, in question. This statute is not a new enactment. It was intended as a coherent compilation or consoliany way affecting the subject-matter of liquor taxes in this State. The original statute on this question was. chapter 112 of .the Laws of 1896, which in many of its features "was amended continuously at nearly every succeeding session of the Legislature. By chapter 115 -of the Laws of 1903, the original statute underwent considerable revision. The act of 1909 is the re-enactment in a consolidated form of the act of 1896 as amended or revised in the meantime. From an examination of the statute in its various phases of evolution it is noticeable that in the revision of 1903 and in the consolidation of 1909 the Legislature endeavored to preserve the older forms of expression with as little change as possiblé, and from this endeavor arises the seeming obscurity which gives rise to this controversy. .

The rules of construction which apply to a statute which is a reenactment of preceding statutes are so well settled as to be recognized generally on their mere statement. The meaning of the language of the re-enactment is to be found in the intent of the preceding statutes so ré-enacted. In- ascertaining this intent the history of the various enactments is to be considered. In their grouping together in a consolidation it is to be deemed that the. Legislature has intended to preserve the ■ preceding enactments in force 'to the fullest extent in which they are consistent mutually.

The portion of the' consolidated statute here directly involved reads as follows : “ The amount of excise tax in every place in this State shall remain the same as assessed for the year- eighteen hundred and ninety-nine, until changed by an. enumeration authorized by the State Commissionér of Excise, or bjr an increase or decrease of population shown by a subsequent State or United States census, and such excise if x assessed in each place enumerated under this-subdivision and asf sed in each place where a change in the population is shown bytX latest State or United States census shall be the same as that prun^ >d in subdivisions one, two, three and six of this section, for places ch -taining the same population. The excise taxes assessed under this \ apter in cities containing a population of fifteen hundred thousand oi\more, which are or shall be formed by the consolidation of territory situate in one or more counties, shall be assessed in the several boroughs or portions of the territory so consolidated to form such city at an advance of one-half in the rate over the amount at which such taxes were assessed on the thirty-first day. of December, nineteen hundred and two, in the several portions of the territory so consolidated.” (See Liquor Tax Law, § 8, subd. 8, as amd. supra.)

As above indicated, we must ascertain the meaning of this provision, wherever any ambiguity or conflict seems apparent, by resorting to the preceding enactments here attempted to be consolidated. By chapter 112 of the Laws of 1896 the Legislature made an original act treating the subject-matter of liquor taxes on a general basis, instead of leaving it to be regulated as theretofore in the various localities largely by special statutes. This act became a law on March 23, 1896. It provided (§■ 31) a general scheme of tax or excise payments, varying according to the population of the respective places in which the business of liquor selling was to be carried on. It fixed rates from $800 as the maximum to $100 as the minimum. In adjusting these rates it fixed as the place for the ■ maximum a- city having a population of 1,500,000 or more according to “ the last State census,” and, in adjusting the other .rates, it chose for classification cities and villages with described population ' as shown by the last State census.” It did not attempt to carry this classification as to population beyond villages having not more than 1,200 population. As to villages not having that population, and as to every other place not in a city or village, it fixed the minimum rate of $100. The amount of the population was made ascertainable by “ the last State census,” for that census was the latest official census then in existence. (See Laws of 1892, chap. 5.) An enumeration of the inhabitants of the State was directed to be had in 1905 by section 4 of article 3 of the Constitution of 1894, and the same section provided for an enumeration every tenth year thereafter. Therefore the Legislature, in adopting as the basis of its classification as to population “ the last State census,” adopted the latest official census available, as the next latest' official census was the decennial census of the United States which had been, made in 1890. Where, however, the State census,of 1892 did not show the population of a city or village, it was provided that the population should be determined by the last United States census! (Laws of 1896, chap. 112, § 11.) The statute, as then enacted, contained no scheme for any advance or decrease in the rates of the liquor tax based upon ■ any subsequent increase or decrease of population in the classified localities. By chapter 312 of the Laws of 1897 (amdg. § 11, supra) the foregoing provisions were re-enacted, but no provision was made for an automatic scheme of increase or decrease in rates.

While this statute was in force in 1897, the Legislature enacted the Greater Hew York charter (Laws of 1897, chap. 378), which consolidated into one city several pre-existing cities of varying populations, and a very large number of incorporated villages, likewise of varying populations. The result of this consolidation would have been to bring apparently under the maximum rate of liquor tax a large number of communities to which it had not been the legislative intent to make such rate applicable. The Greater Hew York charter was to go into effect on January 1, 1898. To meet this situation chapter 442 of the Laws of 1897 was enacted. This act is entitled as an act supplementary ” to the Liquor Tax Law of 1896. It provided that, so far as the Liquor Tax Law was concerned, the rate of liquor tax payable in the localities consolidated into the new city of Hew York should continue at the same amount as was payable in these separate localities on December 31,1897. In no other particular, however, were these localities taken out of the general scope of the act of 1896. In 1900 an attempt was made for the first time to provide for an automatic scheme for. an increase or decrease of the rate of liquor tax in the various localities of the State upon the basis of an increase or decrease in population. This scheme was declared in chapter 367 of the Laws of 1900, which, in part, amended subdivision 7 of section 11 of chapter 112 of the Laws of 1896, as it stood in form as amended in the meanwhile. The new scheme was declared in language as follows: The amount of excise tax in every place in this State shall remain the same as assessed for the year eighteen hundred and ninety-nine, until changed by an enumeration authorized by the State Commissioner ot Excise, or by an increase or decrease of population shown by a subsequent State or United States census, and such ¿xcise tax assessed in each place enumerated under this subdivision and assessed in each place where a. change in the population is shown by the latest' State or United States census shall be the same as that provided in subdivisions one, two, three and six of this section, for places containing the same population.” Chapter 115 of the Laws of 1903 re-enacted this provision in the same form and, as will hereafter appear, added to the same subdivision the provisions for' the advance in the rate. As thus amended the statute was re-enacted in 1909 as subdivision 8 of section 8 of the present Liquor Tax Law.

A determination of the meaning and scope of this-new provision as it was enacted inT900 determines necessarily.this present controversy, for, as before indicated, this language which is re-enacted in 1909 in the very same words, means the very same thing as it meant when declared originally in 1900. It will be noticed that this then new provision declared in most comprehensive terms that it applied to “ every place in this State.” A broader’ term than “ every place in this State ” could not have been used easily, if at all. The phrase “ every place in this State” was clearly intended to mean “ every, place in this State” subject to. the provisions of the Liquor Tax Law. TJnmistakably it applied to the “places” described in the supplementary act of 1897, which were located within the territory of the greater city of Mew York after January 1, 1898. The suppletnentary act of 1897'did not take these “places” out of the provisions of the general act of 1896, but, on the contrary, simply continued and preserved them for the purposes of liquor tax rate in the same status of “place” as they had under the act of 1896, notwithstanding the consolidation of territory effected on January 1,1898, by the Greater Mew York charter.

' It seems, indisputable therefore, that the new scheme of automatic increase or decrease in the rate of the liquor tax “ in every place in this State ” was intended to apply in the city of Mew York as well as in every other place in the State. ■ The scope of the application of this new matter being thus determined, we are brought to a consideration • of the-meaning of this new matter so far as it provides for a basis of computation of population for its going into effect. In the language of the statute the basis provided was that “ shown by a subsequent State or United States "census,” or “by the latest State or United States census.” When this particular enactment was made, the latest State census was that of 1892 and the latest United States census that of 1890. The Legislature knew, that the next census would be the decennial census Of the United States (U.. S. Const, art. 1, § 2, subd. 3) to be made in 1900, in a few months after the enactment of the amendatory statute, which in turn would be followed by a State census in 1905, under the direction of the State Constitution. Thus either under the State Constitution or under the United States Constitution and the acts of Congress there would be an official census every five years. The argument of the respondent, which prevailed at Special Term, is that the Legislature intended to rest this new automatic scheme of increase or decrease in the rate of the liquor tax solely on the basis of the State census, except that in a case where the last State census did not show the population in a particular locality, recourse might be had to the latest United States census. The result of this contention would be that generally the automatic scheme would operate at intervals of ten years and not of five. The statute did not so declare. To have it so declare it would be necessary to read into the new matter of ■1900-a qualifying clause, which would expressly so limit its application to a case where the population of a place was not shown by the latest State census. It is, of course, undeniable that the statute, as it stood prior to 1900, started with the returns of the last State census, that is, that of 1892, as the basis for a fixation of the liquor tax rate in the various places in the State. As so framed, however, it had no scheme of automatic increase or decrease in the rate. This rate was fixed as permanent, subject, however, fp legislative change. The scheme of 1900 was, however, entirely new. It provided for a starting point as follows: “ The amount of excise tax in every place in this State shall remain the same as assessed for the year eighteen hundred and ninety-nine, until changed,” etc.. This change was to occur, so far as this case is concerned, by an increase or decrease of population shown by a subsequent State or United States census, and such excise tax assessed in each place * * * where a change in the population is shown by the latest State or ■United States census shall be the same as that provided in subdivisions one, two, three and six of this section, for places containing the same population.” This language was entirely prospective in its nature. The Legislature knew the decennial United States census of 1900 was about to be taken. When it said “ a subsequent State or United States census,” it meant a State or United States census subsequent to 1899. This seems too clear for any argument whatever. If so, then the automatic scheme began its operation with the United States census of 1900. The operation rested upon that - census, until the' subsequent State census which should take place under the State Constitution in 1905. The automatic scheme thus set in motion was intended to continue resting every live years, alternately on a State or United States census, unless otherwise changed by subsequent statute. How in 1903s by chapter 115 of the ' laws of that year, the Liquor ;Tax Law was revised and amended. Ho change was made in section 11 of the original.act as amended by the act of 1900, except in one particular. The matter formerly in the supplementary act of 1897, which related to the “ places ” located in the territory of the greater city of Hew York, was incorporated with a slight change in subdivision 7 of section 11 of the Liquor Tax Law, as thus revised, and the- supplementary act was expressly repealed. This left the act of 1896, as amended by the act of 1903, the sole legislative declaration as to the Liquor Tax Law of this State. The change just referred to was that in the supplementary act, so expressly repealed, the rate of liquor tax was continued as to ' the places within the city of Hew York the same as it was fixed on December 31, 18.97, While in the transfer of this matter .to the act of 1903 the rate made payable in that particular territory was fixed “ at an advance of one-lial-f in tire rate over the amount at which Such taxes' were assessed on the thirty-first day of December, nineteen hundred and two.”." The liquor taxes in said territory were in the main, assessed on December 31,. 1897, and December 31, 1902, at the same rate, and the change in these dates is immaterial for this discussion. The advance of rates to the extent ,of one-half was a general feature of the act of 1903, and took effect in every place in the State, as is shown by an- examination and comparison of the various statutes. In framing the amendment, or revision of subdivision 7 of section ll of the act in 1903 some little lack of skill was shown in one particular as follows: Subdivision 1 of this section as' amended in 1903 made a general advance in the rate of the liquor tax to the extent of one-half - the amount of the former rate. The Legislature, when it re-enacted subdivision 7 of the same section as amended by the law of 1900, failed to notice that there was some incongruity in declaring that “ The amount of excise tax in every place in this State shall remain the same as assessed for the year eighteen hundred and ninety-nine,” etc., in view of the fact that in the very same section it had just advanced the amount of the liquor tax to the extent of one-half in every place in the State. . This incongruity, however, is not a matter of importance on the question now before us, as the legislative intent is quite plain, however awkwardly it may be expressed. The language as to the automatic scheme as expressed in the act of 1903 means precisely what it did in the act of 1900. Likewise its redeclaration in the consolidated act of 1909, as re-enacted in. 1910, has the same meaning precisely.

As we construe this meaning, the rate payable for liquor tax in the borough of Brooklyn in advance on the 15th day of September, 1910, is to be determined on the basis of the population of said borough as shown by the United States census of 1910. These views require that the order and determination of the Special Term be reversed, and writ of certiorari be dismissed, with costs.

Jeitks, Thomas and High, JJ., concurred; Burr, J., .concurred in separate memorandum.

Burr, J.

(concurring):

. I concur, but venture to suggest that any confusion arising from the language of subdivision 1 of section 8 of the Liquor Táx Law, which specifies the basis for fixing the amount of the tax as the population determined by the “last State census,” may be avoided if we keep firmly in mind that subdivision 1 is dealing with a condition existing at the time that the law became operative, while subdivision 8 deals with a condition subsequently to arise. As Mr. Justice Carr clearly points out in his opinion, when the act of 1900 was passed the Legislature knew that the last State census* was in 1892, and that the decennial United States census was about to be taken. So it may'be urged that when the act of 1909 was passed the Legislature knew that the most recent determination of population was that obtained through the State census of 1905, and it, therefore, referred to that as a basis for fixing the amount of the present tax. In providing for automatic changes in the future, it knew of the obligation to take a United States census in 1910, and another State census in 1915, and it, therefore, referred to each of these methods of enumeration as- a basis of computation.

Order and determination of the.Special Term reversed, and writ of certiorari dismissed, with costs.  