
    In the Matter of the Petition of William W. Farley, as State Commissioner of Excise, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 16,893 Issued to William A. Thater and Transferred to Catherine Cronin, Appellant.
    Fourth Department,
    March 4, 1914.
    Intoxicating liquors — application for liquor tax certificate — competency of infants to execute consents.
    Infants as property owners are competent to execute or authorize the execution of consents, required to be filed by subdivision 8 of section 15 of the Liquor Tax Law, upon an application for a liquor tax certificate.
    Kküse, P. J., and Foote, J., dissented.
    Appeal by Catherine Cronin from an order of the Supreme Court, made at the Onondaga Special Term, and entered in the office of the clerk of the county of Onondaga on the 2d day of December, 1913, canceling and revoking a liquor tax certificate.
    
      Walter Welch, for the appellant.
    
      Louis M. King and A. M. Sperry, for the respondent.
   Lambert, J.:

This is a proceeding under the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 27, suhd. 2, as amd. hy Laws of 1910, chap. 503) instituted hy the State Commissioner of Excise for the cancellation and revocation of a liquor tax certificate issued to one Thater and now claimed to he owned by the respondent Cronin. The sole ground of the application- here involved is the sufficiency of the consents obtained from" adjacent property owners, in pursuance of subdivision 8 of section 15 of the Liquor Tax Law (as amd. by Laws of 1912, chap. 378). That section requires that with the application for a certificate there shall be filed the consents, “ executed by the owner or owners, or hy a duly authorized agent or agents of such owner or owners of at least two-thirds of the total number of such buildings within three hundred feet so occupied as dwellings, and acknowledged as are deeds entitled to be recorded.”

It is conceded that there are adjacent to the certificated premises some twenty-four buildings occupied exclusively as dwellings and within the prescribed 300 feet of the said premises. It follows, therefore, that there was required to be filed such consents covering sixteen of such twenty-four buildings. The respondent shows what purport to be such consents for some eighteen of such buildings. Two such were held by the trial court to be insufficient, for insufficiency of acknowledgment and because revocations thereof had been filed. In such conclusion such court was clearly correct. There still, remain, however, the requisite number, if all such remaining are valid. It is made to appear, however, that some four of these sixteen properties are held by several tenants in common, of whom two are infants, and question is raised as to the power or right of the infants, by reason of their- infancy, to execute or authorize the execution of any such consents. It is agreed that not only did the infants each execute such consents in person, but that an uncle of both also executed same as agent, “duly authorized, ” in their behalf, and such consents so signed and properly acknowledged are urged as sufficient. The trial court has held the same void and has placed such determination solely upon the infancy of such owners. Upon the correctness of that conclusion depends the sustaining or reversal of the order appealed from, for no other error is urged which even approaches sufficient reason for a reversal.

In reaching his conclusion the trial court relied upon the case of People v. Griesbach, (211 I11. 35) and adopted' the reasoning of that decision. We are referred to no authority in this State upon this question, and I am able to find none. The question is to be determined wholly from the statute and the general principles and policies. adopted and recognized by this State.

’ It first appears that the statute nowhere expressly declares the incompetency of an infant to execute such a consent, although it is apparent that many properties within the statutory provision must be owned by infants in various instances. In the same connection it is to be observed that the same statute (Liquor Tax Law) in various of its provisions does expressly declare a disqualification of infants in various particulars.

By clause b of subdivision 1 of section 21 of the Liquor Tax Law (as amd. by Laws of 1909, chap. 281) it is expressly provided that no person under twenty-one years of age shall traffic in liquors. By subdivision 1 of section 29 (as amd. by Laws of 1910, chap. 307) the sale of liquors to infants under the age of eighteen years is prohibited. By subdivision F of section 30 (as amd. by Laws of 1912, chap. 264) minors under eighteen years are prohibited from serving liquors and from remaining in any barroom.

From such circumstances it is argued, with some force, that the failure of the Legislature to disqualify infants, in the provisions as to the consents, indicates an intention to permit such to sign, or at least overcomes any contrary presumption. Such argument rests in the doctrine expressio unius est exclusio alterius. (Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57.)

Attention is further drawn to the well-established rule, that an infant’s deed is not void, but voidable only, and at the sole election of the infant. (O’Donohue v. Smith, 130 App. Div. 214; Smith v. Ryan, 191 N. Y. 452.) Of course the execution of such a consent does not attain to the dignity or formality of a transfer of real property. The right conveyed by the signing is a mere naked right and of doubtful value. It is in no sense a right of property, but is personal in its character and partakes of the nature of a privilege. It is, therefore, difficult to see why the execution of such a consent should be hedged about with more particularity or greater restriction than is a conveyance of real property. It is equally difficult to see the right of the Commissioner to assert a standing that has always been regarded as purely personal to the infant. The infants are not personally nor through legal representation questioning any supposed invasion of their rights, and until they do I cannot see how any one else is in a situation to do so, regardless of motive so long as such action is not for the benefit of the infants.

Again, the courts have always jealously guarded the property and personal rights of infants as wards of the courts. With this in mind, subdivision 6 of section 15 of the Liquor Tax Law becomes important in the solution of this question. That subdivision expressly requires a like consent to be executed and acknowledged by the owner of the property upon which the traffic is to be carried on. Assume an instance where by the death of the owner of a valuable hotel property the title to such has vested in certain minor heirs. If there is no way in which such owners can give the required consent, then the traffic cannot be carried on upon such premises and the right to again traffic thereon would eventually be lost. In such manner the property of such infants would undoubtedly lose a large part of its value, and all for no other reason than the infancy of such owners. Under such circumstances, we anticipate the courts would be astute to find some way to permit such infants to consent to such traffic.

But the Liquor Tax Law itself furnishes the most compelling reason for permitting the consents of infants. 'Subdivision 8 of section 15 (as amd. supra) requires the consents of two-thirds of the dwellings within the prescribed 300 feet. The statute expressly and without exception requires that all the dwellings be .counted as within the class, while the holding of disqualification prohibits the obtaining of the consents from such, no matter how willing the owners might be to grant same. This, in effect, creates a greater restriction against the applicant than is especially prescribed by the statute, i. e., two-thirds. In this particular instance, the applicant would be required to obtain the consents of sixteen out of twenty-four, but would be limited to solicitation of only twenty of such twenty-four. I assume no such situation was ever intended to be created.

About the only substantial argument to be advanced in support of the disqualification of the infants is that the public good and welfare are involved in the giving of such consents, and that public policy requires the exercise of a mature judgment in making the determination, and that an infant is to be presumed not to have such judgment. As against the arguments advanced to the contrary, such contention seems of little weight. No such policy is expressed in the Liquor Tax Law, and there is no very clear reason for its adoption. At least, until such policy is declared by the Legislature, the courts should not seek to read it into the statute. The question involved is new, novel and not free from doubt and should receive the interpretation of the Court of Appeals.

The order is reversed and proceedings dismissed, with costs.

All concurred, except Kruse, P. J., and Foote, J., who dissented.

Order reversed and proceedings dismissed, with costs.  