Hering v. Clement

New York Court of Appeals

Hering v. Clement

89 N.E. 450, 196 N.Y. 218, 1909 N.Y. LEXIS 814

CourtNew York Court of Appeals

DecidedOctober 26, 1909

StatusPublished

Cited by24 cases

This text of 89 N.E. 450 (Hering v. Clement) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hering v. Clement, 89 N.E. 450, 196 N.Y. 218, 1909 N.Y. LEXIS 814 (N.Y. 1909).

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Opinion

Per Civriam.

Section 24 of the Liquor Tax Law, which prescribes the places in which traffic in liquor shall not be permitted, forbids such traffic in a place within two hundred feet of a building occupied exclusively as a church. The statute which was originally enacted in 1896 provided, however, that this prohibition should not apply to a place which on the 23rd day of March in that year was lawfully occupied for a hotel nor to a place in which the liquor traffic was lawfully carried on at that date. No exception was made in behalf of a dealer in liquors who might lawfully establish and carry on his business in a given locality continuously for many successive years, but who might find that upon the expiration of his liquor tax certificate a building occupied exclusively as a church had been located within two hundred feet of his premises. In such a case, of course, he would be unable to show upon his application for a new certificate as required by the Liquor Tax Law that there was no building occupied. exclusively as a church within two hundred feet of his premises, and his inability to do this requires the excise commissioner in such a ease under the construction of the statute adopted by the courts below to refuse to issue a certificate.

We see no escape from the logic of the reasoning by which this result was reached at the Special Term and in the Appellate Division. That the operation of the statute in cases like the one now before us is manifestly harsh would doubtless be a cogent argument to support the proposition that the legislature could not have intended such effect, and might be conclusive were the language of the statute at all ambiguous; but

*221 in view of the clear phraseology of the law the contention is inadmissible and the courts must remit those aggrieved thereby to relief by legislative action.

The order should he affirmed, with costs.

Cullen, Ch. J., Edward T. Bartlett, Yann, Willard Bartlett, IIiscock and Chase, JJ., concur; Haight, J., not voting.

Order affirmed.

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Per Civriam.

Section 24 of the Liquor Tax Law, which prescribes the places in which traffic in liquor shall not be permitted, forbids such traffic in a place within two hundred feet of a building occupied exclusively as a church. The statute which was originally enacted in 1896 provided, however, that this prohibition should not apply to a place which on the 23rd day of March in that year was lawfully occupied for a hotel nor to a place in which the liquor traffic was lawfully carried on at that date. No exception was made in behalf of a dealer in liquors who might lawfully establish and carry on his business in a given locality continuously for many successive years, but who might find that upon the expiration of his liquor tax certificate a building occupied exclusively as a church had been located within two hundred feet of his premises. In such a case, of course, he would be unable to show upon his application for a new certificate as required by the Liquor Tax Law that there was no building occupied. exclusively as a church within two hundred feet of his premises, and his inability to do this requires the excise commissioner in such a ease under the construction of the statute adopted by the courts below to refuse to issue a certificate.

We see no escape from the logic of the reasoning by which this result was reached at the Special Term and in the Appellate Division. That the operation of the statute in cases like the one now before us is manifestly harsh would doubtless be a cogent argument to support the proposition that the legislature could not have intended such effect, and might be conclusive were the language of the statute at all ambiguous; but

*221 in view of the clear phraseology of the law the contention is inadmissible and the courts must remit those aggrieved thereby to relief by legislative action.

The order should he affirmed, with costs.

Cullen, Ch. J., Edward T. Bartlett, Yann, Willard Bartlett, IIiscock and Chase, JJ., concur; Haight, J., not voting.

Order affirmed.

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Bluebook (online)

89 N.E. 450, 196 N.Y. 218, 1909 N.Y. LEXIS 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hering-v-clement-ny-1909.

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