#### Matter of the Application of Henry H. Lyman for an Order Revoking and Cancelling Liquor Tax Certificate No. 21,780, Issued to Nelson Garrison.

(Supreme Court, Ulster Special Term,

September, 1898.)

Liquor Tax Law — Revocation of tax certificate—Consents upon application for tax certificate.

Upon an application to revoke a liquor tax certificate for failure to secure the consent of the required number of owners of dwellings within the limits specified by tie act, the court will consider the nature of the dwellings, and where it appears that two rough-board buildings, not lathed or plastered, without chimneys and one without windows,'were occupied each by a man without family for the -first time on the night prior to the application for the certificate, such buildings and the occupancy thereof is an evasion of the statute, and the certificate will be. revoked.

Application for the revocation of a liquor tax certificate.

Charles F. Cantine, for state commissioner of excise, and application.

Benjamin McClung and Graham Witschief, for defendant, opposed.

Clearwater, J.

This is an application, under section 28 of the Liquor Tax Law, for the revocation of a certificate.

The principal issue is as to the truth .of the allegation that the consent of two-thirds of the owners of the buildings, occupied exclusively as dwellings within 200' feet .of the defendant’s premises had been obtained by him at the time of making his application.

The act provides that when the nearest.entrance to the premises of the applicant is *within*200 feet measured in a straight line, of the nearest entrance to buildings occupied exclusively for dwellings, there shall be filed simultaneously with the application, a consent in writing that such traffic be earned on, executed by the owners or their agents of at least two-thirds of the total number, of such buildings.

A Mr. Bingham is the owner - of a dwelling;, claimed by the state commissioner of excise to be within the 200' feet radius. The *553defendant’s place fronts on Main street in the village of Marlborough, and the door of its nearest entrance is in a recess, twelve inches south of the north line of the building. The distance from the *door*to Bingham’s residence is 199 feet; from the *doorstep*it is 200 feet. To hold that the measurement should be taken from the door, instead of the doorstep, would be >an overstrained and hypercritical construction of the act, neither in accord with accepted canons of construction as to legislative intent, or that common sense which should guide judicial as well as lay opinion.

The application was made to the county treasurer of Ulster county at about 9 o’clock of the evening of the 5th day of May, 1898', and granted about an hour afterwards. For.twelve years prior to that time, a building1 ten feet long, eight feet wide and seven feet high, composed of rough, unpainted boards, with a single window, and no chimney, standing in the rear of the defendant’s premises, had been used as a woodshed. The boards were so loosely joined that it was easy to look into the building through the joints. About midnight of the 5th of May, a man of nomadic life, without family, who had previously slept in a cooper shop, moved into it, and claims to have lived in it since. Another building, of rough, hemlock boards, twelve feet long, eight feet wide and seven feet high, without windows or chimney, was at that time built a few feet distant from the woodshed, and on that night for the first, was occupied by a man of migratory habit, also without family, who had previously slept in a small building used for packing berries. Neither building was lathed or plastered. • Neither had ever been used as a dwelling. Their construction was of the slightest character, with little, if any, foundation. Both complete cost $35. They were the property of the owner of the building in which the defendant conducts his business. It is claimed by the defendant that they are dwelling houses within the meaning of this act, and they were so alleged to be in his application.

This law, like any other, should receive a fair interpretation. It should not be construed harshly as against the holder of a certificate, nor interpreted so loosely as to emasculate its restrictive provisions and break down that protection which it gives to adjacent property owners, the public and to- the dealer who honestly complies with all its conditions, as against one. who seeks to evade it.

It is not the size or the material of which a building is constructed, but the purpose to which it is devoted that is the controlling factor under this. statute. A dwelling may be humble and *554inexpensive, yet as much a domicile as a mansion. But- to hold that buildings of this character, tenanted foi* the first ton the eve' of an application for. a certificate, by men without families or fixed • place of abode, are'to be regarded, as dwellings for the purpose of obtaining and holding a certificate would be farcical. It would be wiser to expunge the provision of the law relative to- the consent of .owners of dwellings from the statute,book, for to retain it and permit it to be evaded by .artifices so transparent is to bring the entire legal system of the state into contempt.

These buildings were not dwellings within the provisions of this statute, and to treat them as such was an evasion of the law. Further discussion is unnecessary. As the defendant did not file and had not obtained the requisite consents the statements; in his application that he had' done so was untrue.

The prayer of the petitioner must be granted, and the certificate revoked, with such costs as are properly taxable in a special proceeding.

Ordered, accordingly.