In re Adriance

59 A.D. 440, 2 Liquor Tax Rep. 482, 69 N.Y.S. 314

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1901
• Status: Published

Opinions

McLennan, J.:

The sole question presented by this appeal is whether or not the owner of a building occupied exclusively as a. dwelling, situate within 200 feet of the place where it is proposed to carry on the business of trafficking in liquors, who, without any consideration therefor, gives his consent that traffic in liquors be carried on at such place, as provided in subdivision 8, section 17 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312), may revoke and cancel such consent at any time before it has been filed with, presented to, or in any manner acted upon by the officer to whom application is made for a certificate authorizing such traffic.

The appellant filled out an application in regular form for a liquor tax certificate, which would authorize him to carry on the business of trafficking in liquors at No. 31 Grant avenue, in the city of Auburn, N. Y., for the term beginning on the 1st day of October, 1900. The application was dated and duly verified on the 13th day of July, 1900. Attached to such application were consents of the owners of buildings occupied exclusively as dwellings, situate within 200 feet of the place where it was proposed to carry on such business. Such consents were in writing, were addressed to the treasurer of the county of Cayuga, and stated that the signers consented that traffic in liquors be carried on in such premises as specified in the application or statement of the appellant. Such consents were also dated on the 13th day of July, 1900, and among the owners of buildings thus consenting was one Maria L. Young, whose consent must be counted to make two-thirds of such owners as required by the statute.

Thereafter, and on the 21st day of July, 1900, said Maria L. Young, by a notice also directed to the county treasurer, which was signed and sealed by her, stated, among other things, as follows:

“ Whereas, after mature deliberation and consideration, it appears to me that the licensing of said party to sell and retail liquors at that place is not to be desired, and would be a decided injury to the property and property owners in the locality,

“ (I) dó hereby revoke, cancel and annul my said consent so heretofore given, and do hereby giye notice, to whom it may concern, that I object and oppose the granting and issuing of such license.”

Such notice was duly served on the county .treasurer and on the appellant on the day it bears date. About two months after service of such notice upon him, and shortly before the. 1st day of October, 1900, the appellant presented his application or statement, with the consents of the owners of. buildings,- including that signed by Maria L. Young, to the county treasurer of Cayuga county, and obtained the liquor tax certificate in question.

' This proceeding was instituted to procure the revocation of such certificate, upon the ground that at the time the appellant presented his application for the same he did not have the legal consent of two-thirds of the owners of the buildings occupied exclusively as dwellings situate within 200 feet of the place in which the business, of trafficking in liquors was to be carried on as required by the provisions of the Liquor Tax Law.

Upon the hearing before the county judge the appellant testified that, in reliance upon the consents signed .by Maria L. Young and others, he expended about $300 in making his premises suitable -for conducting the saloon business, and it is urged that this circumstance should have influence in determining the appellant’s rights.

From the facts above recited it-will be seen that the appellant was only misled by the action of Mrs. Young, if at all, for a period of eight days, from July thirteenth when her. consent was given, until July twenty-first when she attempted to revoke it, and that application for a certificate was not made by the appellant until two months thereafter.

While we do not think such consideration can have any weight in determining the question of law involved upon this appeal, it is obvious that, by ordinary prudence, the appellant might have fully protected himself against such loss or expenditure. The consent of Maria L. Young was among the last obtained from the owners of buildings, and if he had then presented his application, which was at that time filled out and verified, with such consents, to the county treasurer, and a certificate had been issued to him, concededly no effective revocation of consent could have been made. It is not necessary, under the Liquor Tax Law, that the. term during which traffic in liquors may be carried on shall commence when the certificate is issued, but such certificate, when issued, is required to and does expressly state when the term shall commence, which may be but for a single month prior' to the first of May following. If, however, Maria L. Young had a right to revoke her consent before it was presented to the county treasurer, it is "of no consequence that the appellant thereby sustained damage.

What is the “ consent ” which it is urged is irrevocable ? . It is not a grant of any interest in the real property of Maria L. Young to the appellant. It is not a license authorizing the appellant to in any manner use her property. It is simply a declaration by Mrs. Young, made to the county treasurer, that on the 13th day. of July, 1900, she was willing that the appellant, commencing at a future date named, should carry on the business of trafficking in liquors in the city of Auburn, at No. 31 Grant avenue. The statement was true when it was made, but it was not true when it was presented to the treasurer for his official action, to his knowledge. At that time. Mrs. Young had changed her mind; had become convinced, for reasons satisfactory to herself, that the carrying on of such business at the place in question would injuriously affect her property, and would be a menace to the other residents in that locality, and, therefore, she withdrew her consent before the time, arrived when it could go into effect, and before it was presented to or acted upon by the person to whom it was directed, and protested against the granting -of the certificate. Was the county treasurer then bound, or was it permissible for him to still count her as consenting, disregard such protest, and issue a certificate by which he certified in effect that on the 1st day of October, 1900 (the date of the certificate), Mrs. Young was willing that the appellant should carry on the business ■of trafficking in liquors at the place specified ? The certificate speaks as of the time when it is issued. It is of no consequence what the attitude of the property owners was months or years before the application for a liquor tax certificate was presented to and acted "upon by the treasurer. The question presented to him was, what was the. attitude of the property owners at the time he was - called upon to act ?

The provisions of the acti relating to consents were not enacted for the benefit of persons proposing to engage in the liquor traffic, but were enacted as an additional protection to the residents of a particular locality; were enacted so that the county treasurer may not, by a certificate issued by him, authorize the establishment of a saloon at a particular place, unless at least two-thirds of the owners of buildings occupied exclusively as dwellings, situate within 200 feet of such place, are willing and consent thereto, at the time such certificate is issued.

The precise question involved upon this appeal, so far as we have been able to discover, has not been passed upon by the courts of this State, but the revocability of consents, affecting a variety of- business enterprises other than that of trafficking in liquors, has been repeatedly considered, and the rule has been invariably adopted that such consents, if given without consideration, unless it is otherwise provided by statute, may be revoked by the person giving them at any time before they are presented to or acted upon by the officer to whom they are directed, and whose action may be influenced or controlled thereby.

In People ex rel. Irwin v. Sawyer (52 N. Y. 296) it Was held that a taxpayer who had signed a petition directed to the county judge, asking that his town be authorized to issue its bonds in aid of the construction of a proposed railroad, was at liberty to have his name stricken from such petition at any time before the hearing before the county judge was closed, and that to persist in counting the name of such taxpayer as a petitioner for such bonding scheme against his protest was error, and such as- to require the reversal of the order made by the county judge.

Judge G-roveb, in writing the opinion of the court, saids: “ This verification speaks as of the time of presenting the petition. This clearly shows that any one signing the petition has an undoubted right to withdraw therefrom before its presentation to the judge. After withdrawing, no one can truthfully swear that he desires to bond the corporation. The petition, so far as the name of any petitioner is concerned, is his paper before presentation to the judge) and he has a perfect right to have his name erased therefrom, and cannot be compelled to go on and become an applicant to the judge for the bonding against his will.”

The case of People ex rel. Yawger v. Allen (52 N. Y. 538) was a proceeding which arose under section 2, chapter 314 of the Laws of 1869, providing for the bonding of the town of Springport, Cayuga county, to facilitate the construction of the Cayuga Lake railroad, and which act made an affidavit of a majority of the assessors of the town, to the effect that a majority of the taxpayers owning a majority of the taxable property, had consented thereto, a condition precedent to the issuing of bonds by the town. It appeared that before the assessors made such affidavit, certain taxpayers who had signed consents to bond, signed and acknowledged in the same manner a paper revoking their consent, and requesting the assessors not to include them among the persons consenting. Those revocations were disregarded by the assessors, and they proceeded to make the affidavit required by the statute. It was held that such action was illegal and that the affidavit was void, and the proceedings of the assessors and of the commissioners were reversed.

In the case of Town of Springport v. Teutonia Savings Bank (84 N. Y. 403) it was held that where taxpayers had signed consents authorizing the bonding of their town in aid of a railroad, under chapter 314 of the Laws of 1869, a revocation of such consents, delivered to the assessors while those officers had the consents before them and before they had acted upon them or passed upon their sufficiency, was effectual to annul the consents, and the residue of the unrevoked consents being insufficient to constitute the majority required by the statute, the assessors wrongfully made and filed the affidavit, and the condition upon which the power of the railroad-commissioners to issue the bonds wholly depended, to wit, the consent of a majority of the taxpayers, was not complied with. The court said, Rapallo, J., writing the opinion: “ The revocations were complete when delivered to the assessors, before they had acted upon the consents. The consents had not been filed when the revocations were delivered, and the filing of the consents after such revocation of them was wrongful. The delivery of the revocations to the assessors was the proper mode of making them effectual, and not the filing of them with the town or county clerk. Their effect was to withdraw from the assessors the authority to make the statutory affidavit and to file it with the consents, thus revoked. On this very ground the proceedings of the assessors in making and .filing the affidavit and consents, in disregard of the revocations, were adjudged vojd and set aside by this court, on certiorari in the case of People ex rel. Yawger v. Allen et al., Assessors et al. (52 N. Y. 538).”

Many other town bonding cases, so called, might be cited, in all of which it was held that a taxpayer who had consented to such bonding had a right to withdraw or revoke such consent at any time before it was presented to or acted upon by the officer or agent whose, action was to be affected or controlled thereby. In none of those cases, and they are, numerous, was it suggested that the right of revocation should be denied to a taxpayer because .some railroad corporation had relied upon the consent of such taxpayer, and had expended money upon the faith thereof. Indeed, in many of the cases cited the railroads had not only been constructed, but the bonds had been issued, were sold and held by innocent third parties, and yet no court, so far as I have been able to discover, has held that a mere consent before acted upon could not be revoked; or, if so revoked, that any right could be predicated thereon. In some of those cases it was argued that when the assessors came to make the affidavit required under the statute, they were justified in swearing that a majority of the taxpayers of the town wished the town bonded in- aid of a railroad, because at some. time before they had so stated in a petition signed by them; notwithstanding the fact that such assessors had them before them declarations signed by a majority of such taxpayers. that they were then opposed to such bonding scheme, and wished to withdraw their names from the petition signed by them. In others it was argued that the county judge should make an order declaring that a majority of the taxpayers of a town were in favor- of bonding it, because at some time in the past they had signed a statement to that effect, notwithstanding the fact that at the time of making such order such taxpayers were before the county judge protesting against and opposing such bonding scheme. In all such cases the courts have held with entire uniformity that the affidavit or order speaks as of the time when made, and. should state- the fact as it exists at that time.

In People v. Goodwin (5 N. Y. 568), which was a proceeding to review the action of referees appointed to hear an appeal from the decision of the commissioners of highways of a town in refusing to lay out a highway, and which involved the right of the owner of the property through which the highway was to run to revoke his consent previously given, it was held that such right to revoke existed until the consent was acted upon and the road laid out. The court said : “ The consent necessary to the power of laying out the road must be the consent of the owner at the time of the decision by the referees, or such a consent of the previous owner as binds his successor in the title.”

In the case of Hays v. Jones (21 Ohio St. 218) it was held that resident landowners who had subscribed a petition praying for an improvement of a highway were at liberty at any time before such improvement was finally ordered to be made by the board of county commissioners to withdraw their consent by remonstrance, or have their names stricken. from the petition, and that after such withdrawal such persons could no longer be counted as petitioning for the improvement. (Bullock v. West Chicago Rapid Transit Co., 23 Chic. Leg. N. 147.)

In the case of McGonnigle v. Arthur (27 Ohio St. 251) a majority of the landowners whose lands were assessed signed a petition, which was necessary under the statute, for the conversion of a turnpike into a free road, but of the persons who had signed such petition enough changed and signed remonstrances to make a majority of the persons whose lands were assessed opposed to the change in the road. Notwithstanding this fact the commissioners to whom the consents and remonstrances were presented assumed to make an order directing that the turnpike be converted into a free road. It was held that the action of the commissioner's was a nullity. The court said, in substance, that at the time the county commissioners made the alleged final order there was a clear want of jurisdiction over the subject-matter, for the reason that a majority of the landowners whose lands were assessed failed to petition for the proposed .change, and the action of the commissioners in relation thereto was a nullity.

It had become so well settled that an owner of property abutting upon á street in a city who petitioned for an improvement of such street, as required by many of the city charters, might, withdraw from such petition at any time before it was acted upon by the municipal authorities, and thus wholly annul and cancel his former consent, that most of the municipalities of the State have procured amendments to their respective charters which provide, in substance, that no person signing such petition shall be permitted to withdraw his name from the same, or revoke his request or consent until after the expiration of a certain time specified.

We can conceive of ,no reason why a consent of a property owner that the business of trafficking in liquors be carried on at a particular place should be regarded as more sacred or moré binding upon the person consenting than consents such as we have adverted to, and in the absence of a holding to that effect by the Court of Appeals we are not inclined to make such distinction.

We think the cases cited in support of the proposition that the. ■ consent of Mrs. Young was irrevocable are not susceptible of such interpretation.

The case Matter of Washington Street (38 N. Y. St. Repr. 346) can have no possible bearing upon the proposition. In that case it was simply held that the fact that two of the petitioners attempted to withdraw their names from the petition after the commissioners had, teen appointed was immaterial.

In the case of Orcutt v. Reingardt (46 N. J. Law, 337) it was held : “After the recommendation for license has been presented to the board (excise board) and jurisdiction has been acquired, a signer whose name has not been procured by fraud, cannot, without the consent of the board,' withdraw his name and divest the board of jurisdiction.”

This case would be analogous to the case at bar' if Mrs. Young had sought to revoke her consent after it, with the appellant’s application, had been presented to the county treasurer.

In Sutherland v. McKinney (146 Ind. 611), certain persoiis- who filed remonstrances against the granting of a license to sell intoxicating liquors attempted to withdraw from such remonstrance, and it was held that such withdrawal could not, be made after the beginning of the third day before the meeting of the board of county commissioners. In other words, the court in that case held that such remonstrance, to be effectual, must be made within the time within which the statute states persons are entitled to remonstrate.

In State v. Gerhardt (145 Ind. 439) the same proposition of law is stated.

In City of Buffalo v. Chadeayne (134 N. Y. 163) it was held that where the common council of the city of Buffalo, by resolution, had given the defendant permission to erect a wooden building upon land owned by him, and he had entered upon the erection of such building, the city could not afterwards, by resolution, revoke such permission, and thus prevent the defendant from completing the building.

In Hudson Telephone Co. v. Jersey City (49 N. J. Law, 303) it was held that the common council could not revoke a designation of the streets in which a telegraph company may place its poles, when such company has conformed to. the conditions upon which the designation was made, and has expended money in placing its poles upon the designated streets.

In Western Union Tel. Co. v. Bullard (67 Vt. 272) it was simply held that an abutter who has consented to the erection of a line of telegraph poles along the street in front of his premises, cannot revoke such license after the telegraph company has set its poles.

The case of Cumberland Valley R. R. Co. v. McLanahan (59 Penn. St. 23) was a case in which a tenant in common conveyed an undivided moiety of his land. A railroad company afterwards erected a warehouse upon it. The other tenant then conveyed his half to the same grantee, reciting that the company had erected the warehouse, and in consideration was to allow a passage over its other land to the land of the grantors, their heirs and assigns. The grantee used the right of way. Held, that it was evidence to the jury of ratification by the grantee of the license to the company, and it was also held that valuable improvements having been made upon the faith of the license, it was not within the Statute of Frauds, and a subsequent ratification by parol was equivalent to precedent authority.

The case of Wilson v. Chalfant (15 Ohio, 248) simply holds that a parol license executed is irrevocable.

Hodgson v. Jeffries (52 Ind. 334) simply holds: “ A license by the owner of land to the owner of adjoining land .to construct and use perpetually a ditch over the land of the former for the purpose, of draining the land of the latter, may be verbal, and, upon such construction and continued use, is irrevocable by the grantee of the former, though unforeseen injuries result to the former and his grantee from the construction and use of such drain.”

In House v. Montgomery (19 Mo. App. 170) the defendant was given permission to go over plaintiff’s land,, if he would build a quarter of a mile of fence along one side of the way, and also inclose plaintiff’s field. The defendant did build the fence, and afterwards, with plaintiff’s consent, he planted a hedge fence and cultivated it for years, and used the road across'the plaintiff’s premises, with his consent, continuously for ten years. It was held that: the plaintiff was equitably estopped from prohibiting the defendant from further using such way.

We have thus referred to all the cases cited which it is claimed sustain the proposition contended for by the appellant,, and fail to discover that any of them bear upon or in any manner refer to the questions involved in the case at bar. We conceive of no prim ciple which would justify a holding that a mere consent given without consideration, directed to a public officer, and which is to be made the basis of his official action,. should be held to be irrevocable before it is presented to such officer or acted upon by him.

The conclusion is reached that the order, appealed from is right and should be affirmed, with costs.

All concurred) except Laüghlin, J., dissenting.