Matter of Peck v. . Cargill

60 N.E. 775, 167 N.Y. 391, 2 Liquor Tax Rep. 542, 1901 N.Y. LEXIS 1082

Opinions

O’Brien, J.

This is an appeal from an order which revoked and canceled a liquor tax certificate held by the appellant.

These certificates are-recognized by the statute under which they are issued as a species of property transferable from one to another. They are the evidencé of a right or privilege to carry on a certain kind of business, issued by the state to the individual, and hence a thing of pecuniary value. In this case the holder of the certificate has been deprived of it by the -order appealed from, which revoked and canceled it. This has been done on the ground' that- he was guilty of a violation of the law by selling liquor on Sunday. The order so adjudges. Ho one has testified, or even alleged, that he committed that offense. The petitioner does allege that he is informed and believes that the holder of the certificate has been selling- bqer, whisky and wine “during the last three months” on Sunday, and that is absolutely the only allegation or proof in the record to uphold the order complained of. It is said that this is all that the statute requires, and that the certificate has been revoked by a proceeding authorized by law which has been literally complied with in this case. A statute which would permit the rights of a party to be summarily disposed of in that way would be of very doubtful validity. We think that the statute in question requires, upon any fair construction, something more. It does authorize any citizen to commence such a proceeding by petition to a judge or the court, but it expressly provides that the “ petition shall state the facts upon which said application is based.” (Liquor Tax Law, § 28.) When the law requires that the facts shall be stated, as the basis of a summary proceeding to forfeit the right to carry on business by reason of acts which constitute a crime, it is not complied with by the presentation of a petition, every allegation of which is upon information and belief, without even a statement of the sources of the information or the grounds of the belief. The liberty and property or personal rights of the citizen have practically no protection if they can be taken away or destroyed by such a proceeding on the part of any one who is willing to become a party to such a controversy, and without producing any proof whatever of the acts constituting the offense charged. The least that should be required in such a case is that the petition should state the facts positively upon oath, unless the statute expressly permits a statement upon information and belief, and this statute does not. A special statutory requirement, that a party must state certain facts as a basis for an order revoking a certificate of the right to carry on a certain business, is not satisfied or complied with by a mere statement that the moving party suspects or is informed and believes that the particular facts exist, or that the party charged has committed the forbidden acts in violation of law. This prim ciple would seem to be specially applicable to a case like this, where the acts charged and 'which are at the foundation of the proceeding, not only subject a party to a penalty or a forfeiture, but are also crimes and punishable criminally. The statute now under consideration authorizes the judge, upon presentation of a petition stating the facts, to grant an injunction against a transfer of the certificate and an order to show cause. The petition does not confer jurisdiction unless it is in compliance with the statute, arid a petition in which all the material facts are stated upon information and belief, without disclosing the sources of the information or the grounds of the belief, is.no sufficient basis for any judicial action. (Murphy v. Jack, 142 N. Y. 215; Buell v. Van Camp, 119 N. Y. 160; Campbell v. Morrison, 7 Paige, 157; Cushing v. Ruslander, 49 Hun, 19.)

But it is said that the statute expressly authorized the court, upon the proceedings in this case, to revoke the certificate. The contention is that the statute provides that after service of the petition and an order to show cause on the holder of the certificate five days before returnable, the judge before whom it is returnable shall revoke of cancel the certificate unless the holder shall present and file a verified answer raising an issue as to some material fact in the petition, in which event the judge is required to take proof of the disputed facts, but otherwise the order of revocation is granted by default. It is true that the statute so provides, but this does not dispense with a petition containing proper averments of the necessary jurisdictional facts. Moreover, it is plain that what the statute practically provides for is that in such cases the accused shall be presumed to be guilty unless he denies his guilt under oath. If he omits to deny the statements of the petition on oath, the facts charged are to be taken as confessed and a forfeiture follows. If the party against whom the proceeding is instituted is really guilty of the offense charged, he is thus compelled to confess his guilt either by his oath or by silence, and then the forfeiture of Ms property rights follow. He has no other alternative, unless he is tempted to tamper with his conscience and deny the truth on oath. It is not competent for the legislature to place a citizen in such a disadvantageous position in order to protect his liberty or his property. In any proceeding by the state to deprive him of the one or the other the facts which in law justify it must be alleged and established. The legislature has no power to. enact that they may be inferred or presumed from the silence of the party accused or from his failure to answer under oath. • This is especially true when the acts charged are not only the basis of a penalty or a forfeiture, but constitute a crime. It is the constitutional right of the party charged with the commission of acts which, if true, constitute a crime or create a penalty or impose a forfeiture to answer without verification. Ho law can be valid which directly or indirectly compels a party to accuse or incriminate himself or to testify by affidavit or otherwise with respect to his guilt or innocence. In every case when he elects to remain silent with respect to any charge involving unlawful acts which are criminal or subject him to a penalty or forfeiture, that is a constitutional privilege which the legislature may not invade. The courts have insisted upon giving to the constitutional provision a construction broad and liberal enough to permit a citizen to remain entirely silent with respect to the truth or falsity of any criminal charge against him, if he so elects, and his right to refuse to verify a pleading is as clearly within the privilege as his right to refuse to testify. The constitutional immunity from every species of incrimination may be as effectually violated by a law which compels a person to plead or deny upon oath any charge involving a criminal offense without regard to the form of the investigation as by a law compelling him to testify as a witness. The privilege of silence secured by the Constitution applies to the one case as well as the other. (Thomas v. Harrop, 7 How. Pr. 57; Hill v. Muller, 2 Sandf. 684; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Counselman v. Hitchcock, 142 U. S. 547; People v. Courtney, 94 N. Y. 490 ; People v. Sharp, 107 N. Y. 427; Gadsden v. Woodward, 103 N. Y. 242.) The prin ciples decided in these cases establish the proposition that it was not within the power of the legislature to dispense with the necessary allegations and proof of the facts constituting the offense, by enacting virtually that no proof need be given by the state unless the party charged with the violation of the law denies the charges under oath. The statute virtually authorizes a presumption of guilt from an omission of the accused to testify and, therefore, it is a law adjudging guilt without, evidence and reverses the presumption of innocence. An enactment of this character violates fundamental principles binding alike upon the legislature and the courts. (People v. Courtney, supra.)

The order appealed from should be reversed and the proceeding dismissed, with costs.