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census; they furnish the data from which it is made, but are not themselves the finished product. Be that as it may, the statute does not give the plaintiff any power of determining the population except in the single case "of the incorporation of a new city or village," when "the State Commissioner of Excise is authorized and directed to cause an enumeration of the inhabitants to be taken in such city or village." (§ 11, subd. 4.) This shows the extent of his power in this respect.

The plaintiff offered, and the court excluded, a certificate made December 16, 1896, seven and a half months after defendant paid the $100, by George S. Donnell, "Chief of Census Division, Depart ment of the Interior," "that the paper hereto attached is a statement as nearly correct as can be ascertained from the population schedules of the population according to the census of 1890 of the towns and villages named therein." The paper thereto attached stated the population of the village of Waterford to be 4,251. The official character of Mr. Donnell was duly certified. The statute assessed the tax on or before May 1, 1896. This certificate had no existence then, and, therefore, was then no part of the census.

If admissible, the certificate is valueless as evidence, because the statement that it is as nearly correct as can be ascertained from the schedules leaves the degree of its correctness unknown. But this certificate of the chief of the census division is not the census itself, but only his declaration of what he thinks is the best information he can extract from the population schedules. It is not a certified copy of any paper, and, therefore, not admissible as such under section 882 of the United States Revised Statutes, or section 944, Code of Civil Procedure. The trial court properly excluded the certificate, and properly held that resort could not be had to any other evidence than one or the other census to show the population of the village. (People er rel. Cramer v. Medberry, 17 Misc. Rep. 8.)

The defendant paid the tax which the statute assessed, and no larger sum could be lawfully required of him.

The objection was taken by defendant's answer and upon the trial that the plaintiff has no legal capacity to sue or recover if any cause of action against the defendant exists, but that the same is vested in the treasurer of Saratoga county and in him only.

We think the point well taken. There is no express authority

conferred upon the plaintiff to bring such an action as this, and the scheme of the act shows that none is implied. Section 11 fixes the amount to be paid for tax licenses in the various localities. Section 13 provides that "The taxes assessed and all fines and penalties incurred under this act in counties containing a city of the first class shall be collected by and paid to the special deputy commissioner for such county, and in all other counties to the county treasurer of the county in which the traffic is carried on, except that the taxes assessed under subdivision 4 of section 11 of this act, and all fines and penalties in connection therewith, shall be collected by and paid to the State Commissioner of Excise, and by him to the State Treasurer." The exception refers to licenses for the sale of liquor on railroads, steamboats and other vessels, the revenues from which belong to the State, whereas only one-third of the revenues collectible by the county treasurer belong to the State; two-thirds thereof belong to the town or city in which the traffic is carried on. The county treasurer must pay them over accordingly. Sections 14, 17, 19, 20, 25, 29 and 36 are framed in harmony with the scheme that the county treasurer is the collector of the assessments and penalties.

There are two sources of revenue under the act; one the taxes assessed by the act itself, and the other the penalties, fines and forfeitures for its violation; these are imposed by the court upon the conviction of the offender. The taxes, except in cities of the first class, and upon railroads and vessels, are collectible in the first instance by the county treasurer; the penalties are also payable to and collectible by him. It is true that section 36 provides that upon conviction and sentence, if a fine or penalty be imposed, a judgment for the amount thereof shall be docketed in favor of the Commissioner of Excise against the offender. But if the fine be paid into court, or collected by the sheriff upon execution, it shall be paid to the county treasurer.

This case does not involve a fine, penalty or forfeiture, but it is instructive to notice that these also come to that officer first or last.

Incidental to his power to collect the tax is the power to prosecute such civil actions and remedies as are appropriate for the purpose, upon the principle that the right carries with it the remedy.

The judgment should be affirmed, with costs.
All concurred.

Judgment affirmed, with costs.

First Appellate Department, January, 1898. Reported. 25 App. Div. 222.

In the Matter of the Petition of GEORGE HILLIARD, Special Deputy Commissioner of Excise, Respondent, for an Injunction Restraining ANNIE GIESE, Appellant, from Trafficking in Liquors.

Liquor Tax Law--A certificate is a contract and property-It can not be impaired or taken away by a subsequent enumeration.

A liquor tax certificate constitutes a contract between the person to whom it is issued and the State; the right acquired thereby is property, and its owner is entitled to the same protection in this property as in any other.

A liquor tax certificate, issued on April 20, 1897, to a resident of the annexed district of the city of New York, to take effect May first of that year, is not rendered invalid by the fact that, upon an enumeration of the inhabitants of such district, made under the authority of the excise commissioner, pursuant to chapter 312 of the Laws of 1897, taking effect April twentieth, the enumeration being completed on April 25, 1897, the tax required by the commissioner is larger than that paid by the holder of the certificate.

Such amendment does not become operative until the enumeration required by it has been finished.

APPEAL by Annie Giese from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of November, 1897, granting an injunction restraining the said Annie Giese from trafficking in liquors upon certain premises until she shall have paid the liquor tax assessed thereon and obtained a liquor tax certificate in pursuance of law.

Arthur Furber, for the appellant.
Alfred R. Page, for the respondent.

RUMSEY, J. The respondent, as special deputy commissioner of excise, has applied to this court upon petition and affidavit for an order restraining the appellant from trafficking in liquors in the annexed district of the city of New York, until the liquor tax assessed upon her premises shall have been paid and a liquor tax certificate obtained in pursuance of the law. A certificate was issued to her in due form by the proper authorities,

on the 20th of April, 1897, authorizing her to sell liquor for one year from the 1st of May, 1897. It is conceded that this certifi cate was valid at the time that it was issued, and it is not claimed that the appellant has in any way violated the Liquor Tax Law. The claim is that, by reason of the provisions of the amendments to that law which took effect on the day on which the certificate was issued to her, and which became operative five or six days afterwards, a certificate which was valid when it was issued has ceased to be valid, and for that reason the commissioner of excise is entitled to an injunction to restrain her from continuing to sell liquor under its authority. No action has been commenced, but this is a special proceeding begun pursuant to section 29 of the law (Chap. 112, Laws of 1896) providing that if any person shall unlawfully traffic in liquor without obtaining a liquor tax certificate, the proper person, who in this case is the special deputy commissioner, may present a verified petition to a justice of the Supreme Court or to Special Term of the court for an order enjoining such person from trafficking in liquor; and the court is authorized, if it is satisfied that such person is so doing, to issue the injunction. This mode of procedure is established by the statute, and exists only by its authority; and all the power which the court has to issue an injunction in this special proceeding, no action having been commenced, is derived solely from it. It is very doubtful whether this case comes within the statute, because the claim of the respondent is not that Mrs. Giese is trafficking in liquor without obtaining a liquor tax certificate, but that the tax certificate which she has obtained and which undoubtedly was valid when it was issued, has, by the course of subsequent legislation, become invalid.

But, passing that point, which is not insisted upon by the appellant, it is necessary to consider whether, in fact, the appellant had a valid tax certificate, and whether that certificate, if valid when it was issued, became invalid by the subsequent course of legislation or the action of the excise department of the State. The manner of procedure to obtain a liquor tax certificate is especially prescribed in the statute. Every person who desires to sell liquor must apply to the proper person in a form prescribed by the statute for the issuance of such certificate to him. With the application must be given a bond in a form also prescribed by the statute. (Laws of 1896, chap. 112, §§ 17, 18.) This

application must be made on or before the first day of May. The tax is due and payable on the first day of May (§ 12), but section 21 of the statute makes provision for cases in which the tax shall have been paid not less than fifteen days before the time fixed for the expiration of the former tax certificate, from which it is fairly to be inferred that the tax may be paid by the person making the application at the time of making it, and the payment need not necessarily be postponed until the very day on which it is due. It is further provided by section 19 of the act that, after the application and the bond shall have been found to be correct in form, and the sureties upon the bond have been approved, then, upon payment of the tax, the proper officer shall at once prepare and issue a legal tax certificate in the form provided by the act. In this section is found the only authority to issue a tax certificate, and it is to be noticed that it can be issued only upon payment of the tax prescribed, and the pay ment is a condition precedent; so that it is quite clear that the officer upon whom is devolved the duty of issuing the certificate can only issue it after the tax has been paid. The owner of the certificate cannot be deprived of it except for some violation of the law. The statute provides that under certain circumstances this certificate may be surrendered, but the surrender can only be made in the manner and at the time provided by section 25 of the Liquor Tax Law, and when surrendered the officer receiving it is authorized to repay to the owner the proper proportion of the amount of the tax for the unexpired term of the certificate, from the first of the month succeeding the time on which the surrender is tendered; so that under no circumstances, after the first day of May in any year, could the certificate be surrendered and the owner receive back the full amount paid, but in any case the commissioner is required to retain at least one-twelfth of the tax.

The certificate, when it has been issued, constitutes a contract between the person who received it and the State, by which, for the consideration paid by the owner, the State has granted to him an absolute right to traffic in liquors for one year from the first of May subsequent to the date on which the certificate is granted, and of which he can only be deprived for some violation of the law so long as the statute remains in force. The right is a valuable one. It is property, and the person who receives it has the same right to be protected in this property as in any other for

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