
    Supreme Court, Saratoga Special Term,
    May, 1896.
    Reported. 17 Misc. 8.
    People ex rel. Daniel Cramer v. Stephen C. Medberry, County Treasurer, Etc.
    1. Excise—Liquor tax certificate—Population to be determined solely by state or federal census.
    For the purpose of fixing the rate of tax to be paid under subdivision 1 of section 11 of the act of 1896, the population is to be determined solely by the last State or federal census.
    2. Same—Rate when population not given by census.
    If the population of a given locality is not shown by either the last State or federal census, it falls within the provision of the statute of “any other place,” and the tax in such case is $100.
    Application to compel the county treasurer of Saratoga county to issue to the relator a liquor tax certificate, under chapter 112 of the Laws of 1896, known as the “Liquor Tax Law.”
    |Thomas O’Connor' and J. W. Houghton, for relator.
    J. S. L’Amoreaux,' for respondent.
   McLaughlin, J.

The relator applied to the county treasurer of Saratoga county for a certificate, under chapter 112 of the ’Laws of 1896, permitting him to traffic in liquors to be drunk on his premises, which are situate in the village of Waterford, in said county. At the time he made his application he tendered to and left with the county treasurer the sum of one hundred dollars ($100), the amount of tax as claimed by him. The county treasurer refused to issue to him the certificate provided by the act above referred to, upon the ground that the tax was two hundred ($200) instead of $100. The sole question, therefore, to be determined upon this application is whether or not the relator is entitled to a certificate permitting him to traffic in liquors to be drunk on his premises upon the payment of the sum of $100.

The correct answer to this question, of course, depends upon the construction given to the statute. Section 'll provides that: “Excise taxes upon the business of trafficking in liquors shall be of four grades and assessed as follows:

“Subdivision 1. Upon the business of trafficking in liquors to be drunk upon the premises where sold * * * if * * * in a city having by the last State census a population of fifteen hundred thousand or more, the sum of eight hundred dollars; if in a city having by said census a population of less than fifteen hundred thousand, but more than five hundred thousand, the sum of six hundred and fifty dollars; if in a city having by said census a population of less than five hundred thousand, but more than fifty thousand, the sum of five hundred dollars; if in a city or village having by said census a population of less than fifty thousand, but more than ten thousand, the sum of three hundred and fifty dollars; if in a city or village having by said census a population of less than ten thousand, but more than five thousand, the sum of three hundred dollars; if in a village having by said census a population of less than five thousand, but more than twelve hundred, the sum of two hundred dollars; if in any other place, the sum of one hundred dollars.”

Subdivision 4 of same section provides:

“When the population of a city or village is not shown by the last State census, it shall be determined for the purposes of this act by the last United States census.”

The village of Waterford was incorporated in 1794. Its population is not shown by either the last State or federal census, and it cannot be determined by the return made by the enumerators without the aid of extrinsic evidence. The respondent, however, insists that at the time each enumeration was taken the village then had a population of over 1,500, and the same is clearly shown by evidence submitted upon this application. This is undoubtedly true — in fact, the relator does not deny it, but insists that the population must be determined in the manner pointed out by the statute; and, for the purposes of fixing the tax, cannot be determined in any other manner, and that, inasmuch as the population is not shown by either the last State or federal census, the village of Waterford comes within the provision of the statute providing that the tax “ if in any other place, the sum of one hundred dollars.” I am inclined to think that, the relator’s contention in this respect is correct. The act in question having provided a method for determining the population, for the purpose of fixing the tax, the population must be determined in the manner provided by statute and cannot be determined in any other way.

The true construction to be given to the statute for the purpose of fixing'the tax, it seems to me, is this: All certificates of the first, second and third classes are to be issued upon the payment of a tax, the amount of which is regulated by the population of the municipality where the business is to be conducted as shown hy the last State census; or, if the population is not shown by the last State census, then it must be determined by the last United States census. And, if it is not shown by the last State or federal census, then it comes within the provision of the statute providing that in any other place the tax shall be $100. The method provided for determining the population is a fixed and arbitrary one. The legislature had the power to select this method, and, having selected it, that method, and that method alone, must be followed. If the respondent can introduce evidence to show that the population of the village in question was, at the time the enumeration was taken, over twelve hundred, then the relator can introduce evidence to show that it did not, in fact contain that number of inhabitants. To avoid such a contest was the very thing that the legislature intended to do, and the reason for it is quite manifest. The act not only seeks to regulate the trafficking in liquors, but it also seeks to provide a revenue for the State; and, if the population of a given locality is-not shown by either the last State or federal census, then it falls within the provision of the statute of any other place.” To hold otherwise, the words “ any other place ” would have to be eliminated from the statute, and that would, in effect, destroy one of the objects sought to be accomplished by the statute itself. The court can well take knowledge of the fact that, if the population of a given locality must first be determined as a question of fact before the amount of the tax can be fixed, the expense incurred in so doing might diminish, in no small degree, the amount which the State otherwise would receive. If there are localities in the State, the population of which is not shown by the last State or federal census, the legislature has the power, by future enactments, to regulate the amount of tax in such places. Having reached this conclusion, I think the relator is entitled to a certificate, he having tendered to the county treasurer the amount of tax required, and an order can be entered to that effect; the form of the order to be agreed upon or settled on notice.

Ordered accordingly.  