
    Third Appellate Department,
    March, 1900.
    Reported. 48 App. Div. 423.
    In the Matter of the Petition of John Barnard, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 23,486, Issued to Charles Rivers, Appellant.
    Liquor tax certificate—The character of the traffic is determined by the application therefor—Revocation of, for a false statement in the application—Not discretionary.
    The right of the holder of a liquor tax certificate to traffic in liquor is confined to the. particular character of traffic set forth in the application for the certificate, although the certificate contains no such restriction.
    Upon an application for the revocation of a liquor tax certificate because of an alleged false statement in the application therefor, the truthfulness of the statement in question should be determined as of the time when the application was made.
    
      Semble, that the court has no discretion in this respect.
    Appeal by Charles Rivers from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Washington on the 6th day of January, 1900, granting the petitioner’s motion to revoke and cancel liquor tax certificate No. 23,486 issued by the State Commissioner of Excise to Charles Rivers, and also from the judgment entered in the office of the clerk of the county of Washington on the 6th day of January, 1900, upon said order.
    
      R. O. Bascom and James M. Whitman, for the appellant.
    
      A. D. Arnold, for the respondent.
   Kellogg, J.

The applicant, Charles Rivers, for a liquor tax certificate to be issued to him under the provisions of section 11, subdivision 1, of the Liquor Tax Law (Laws of 1896, chap. 112), made his application on the form provided by the State Commissioner of Excise and furnished him by the county treasurer of Washington county, and this form was the form provided for applicants desiring to traffic in liquor in connection with the business of keeping a hotel in the town of Kingsbury. The tax certificate was issued to him. This certificate does not on its face restrict the holder to traffic in liquor in connection with the business of keeping a hotel; it is in the form prescribed by the Liquor Tax Law, and declares that it is issued under subdivision 1 of section 11.

The order revoking the certificate proceeded upon the proof before the court which seems to have established the fact that the applicant at the time of his application and at the time the certificate was issued was not possessed of a hotel answering the requirements of section 31 of the Liquor Tax Law.

The contention of the appellant is that, because the applicant, some five weeks subsequently and after these proceedings were started, was possessed of a hotel answering such requirements, this ought to be taken as a sufficient compliance and be treated as a sufficient defense to the. charge of false statement in his application. I do not think the court has any discretion, but must judge of the truthfulness of the statement in the application as of the time when made and before the certificate is issued.

The applicant further contends that the certificate ought not to be revoked for the reason that on its face it does not restrict the applicant to the traffic in liquor in connection with the business of hotel-keeping, but under it he may do any kind of business which subdivision 1 of section 11 contemplates may be done; that because of the absence of proof before the court that the traffic in liquor in the town of Kingsbury had been restricted by vote, had as prescribed by the local option clause of the Liquor Tax Law, it must be presumed that there had been no restriction. And, notwithstanding that the applicant declared in his application his purpose to keep a hotel, and the traffic in liquor intended was to be connected with that ’ business, still he could not be restricted to that. I think the learned counsel for the applicant is in error in this contention. The scheme of the Liquor Tax Law is not difficult of discovery and does not lead to complications of the nature suggested. The law provides for the issuance in one form of all certificates, but the certificate and the application have a very close relation. The law provides that the blank form of application shall be furnished by the Commissioner of Excise (§ 15) and must be furnished to the applicant by the county treasurer (§ 17); that if the traffic is to be carried on in connection with the business of keeping a hotel, the application must contain a statement under oath that all requirements defining hotels have been complied with (§ 17, subd. 9); that the certified statement of the result of the vote under the local option clause must be filed with the county treasurer (§ 16, subd. 4), and that it shall not be lawful for the county treasurer or special deputy commissioner to issue any liquor tax certificate except in accordance with such vote. It is thus made clear that the treasurer and the special deputy commissioner are provided in advance with the requisite information as to the character of the traffic permissible in any town in the county. And only on the statement in the application as to the character of the traffic intended by the applicant can the treasurer or special deputy know whether a certificate may be properly issued. This, it seems to me, shows the close relation of the certificate to the application; that the traffic must, in all cases, be confined to that particular line and character of traffic set forth in the application itself, and the application and certificate together must be interpreted to mean a license to the applicant to traffic in liquor only in the field and to the extent declared in the application.

For these reasons, I think the order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  