#### In the Matter of the Application of Hermann Ahlers for a Writ of Certiorari Commanding Maynard N. Clement et al., to Certify and Return, Etc., All Proceedings Had, Etc., Relating to the Refusal of William Watson as Special Deputy Commissioner of Excise to Issue a Liquor Tax Certificate.

(Supreme Court, Kings Special Term for Motions,

October, 1910.)

Intoxicating liquors — Granting license —Amount of tax —Ascertaining population.

Population is to be determined, for the purpose of fixing the liquor tax in any place, by the latest State census; and recourse to the United States census is only to be had in the absence of an enumeration by the State.

Tlie provision of subdivision 7 of section 11 of chapter 312 of the Laws of 1897, added thereto by chapter 367, Laws 1900, that the amount of excise tax in every place shall remain as assessed for the' year 1899 until changed by an enumeration authorized by the State Commissioner of Excise or by an increase or decrease of population shown by a subsequent State or United States census, must he interpreted to mean as shown by the United States census, in the absence of a State census.

The provision of chapter 442 of the Laws of 1897, relating to “ cities containing a population of fifteen hundred thousand or more, which are or shall be formed by the consolidation of territory situate in one or more counties,” and now substantially embodied in subdivision 8 of section 8 of tlxe Liquor Tax Law, must be given effect and is controlling for Brooklyn.

Application for writ of certiorari to review refusal of special Deputy Oommissioner of Excise to issue a liquor tax certificate.

Ashbel P. Fitch, Mott & Grant, for relator.

E. B. Barnum, for relator Nellis.

Herbert H. Kellogg, for respondents.

Crane, J.

Chapter 112 of the Laws of 1890, section 11, provided for a tax on tbe business of trafficking in liquors *178to be drunk on the premises where sold, if the place be in a city having by the last State census a population of 1,500',000 or more, of the sum of $800; if in a city having by the last State census a population of less than 1,500,000, but more than 500,000, of the'sum of $650. It likewise provided that, when the population of a city or village was not shown by the last State census, it should be determined by the last United States census; and, if not so shown, the State Commissioner of Excise was authorized and directed to cause an enumeration of the inhabitants to be taken.

This Liquor Tax Law of 1896 was very plain and simple and inaugurated a system of taxation based upon the population .as determined by the last State census, or, in the event of there being no State census applicable, then according to the last United States census or the enumeration of the Commissioner of Excise.

This fundamental principio and scheme has been maintained through all ihe amendments and re-enactments of the Liquor Tax Law from 1890 to date.

In the Liquor Tax Law (Laws of 1909, chapter 39), section 8 fixes the tax according to the last State census; while, under subdivision 8 of that section, the enumeration, if not shown by the latest State census, is to be determined by the latest United States census or by the enumeration made by the State Commissioner.

When the various outlying counties were consolidated in 1897 into the greater city of New York, it was apparent that taxes, could not be justly collected in the thinly populated country districts within that territory according to the population of the greater city; therefore chapter 442 of the Laws of 1897 was enacted to meet this condition. This enactment reads as follows: “ * * cities containing a population of fifteen hundred thousand or more, which are or shall be formed by the consolidation of territory situate in one or more counties, shall continue to be assessed in the several portions of the territory so consolidated to form such city, at the same rate as such taxes .are assessed on the thirty-first day of December, eighteen hundred and ninety-seven, in the several portions of the territory so consolidated.”

*179In 1900, by chapter 367 of the laws of that year, a new clause ivas added to the above -scheme of taxation (being an amendxnent to subdivision 7, of section 11, of chapter 312, of the Laws of 1897, which had been sxxhdivision 4, of section 11, of the Laws of 1896). It reads as follows: *“*The amount of excise tax in evei’y place in this state shall remain the same as assessed for the year eighteen hundred and ninety-nine, until changed by an exxmneration authorized by the state commissioner of -excise, or by an increase or decrease of population shown by a subsequent state or United States census, and such excise tax assessed in each place enumerated under this subdivision and assessed in each place where a change in the population is shown by the latest s-tate or United States census shall be the same as that provided in subdivisions one, two, three and six of this section, for pdaees containing the same popula!ion.”

This clause has been continued in subdivision 8, of section 8, of the Laws of 1909, chapter 39, and has caused the confusion which has arisen in this rise. The Excise Commissioner claims that the last United States census is to regulate the tax in the borough of Brooklyn axid has increased the amount from $975 to $1,200, a.s the last Uxxited States census shows the borough of Brooklyn to liav-e a population of -over 1,500,000.

If the tax is to be mcasux’cd by the State census, according to subdivision 1 of section 8,. the tax for Brooklyn would be $975 as, according to the State censxxs taken in 1905, the population of the borough is under 1,500,000 and over 500,000-.

In view of the fact that, through all of the Liquor Tax Laws, the State census is made the basis for determining the population and that it is expressly stated in the Laws of 1896 (chap. 112, § 11, subd. 4), and in the Laws of 1897 (chap. 312, § 11, subd. 7), and in the Laws of 1909 (chap. 39, § S, subd. 8), that, where the population in any city is net shown by the last State census, it shall ho determined by the last United States census, I -am forced to the conclusion that the tax is to he regulated by the population shown by the latest State census and that the United States *180census is only applicable in the absence of an enumeration by the State. The clause above referred to, added in 1900, •and now included in subdivision 8, of section 8, of chapter 39, of the Laws of 1909, providing that the excise tax shall remain the same until changed by an enumeration of the Excise Commissioner or by an increase or decrease of population shown by a subsequent State or United States census, must be interpreted to mean as shown by the United States census in the absence of a State census. If this be not so, why should subdivision 1 of section 8 fix tbe tax by State census >and make no mention of any other standard; why should subdivision 8, explaining how the enumeration is to be determined, specifically provide that if there he no State census resort may be had to the United States census?

If this he so, the tax for the borough of Brooklyn, if controlled by subdivision 1 of section 8 of the Liquor Tax Law, will be $975.

But the amendment contained in chapter 442 of the Laws of 1897, above referred to and made specially applicable to the greater city of New York and its .annexed territory, was continued by chapter 15 of the Laws of 1903, the only change made being an increase in the tax of one-half over the -amount at which such taxes were assessed on the 31st day of December, 1902. Under this provision the increase for the borough of Brooklyn would make the tax $975. This same clause has been embodied in the Liquor T.ax Law of 1909 .and is found in subdivision 8 of section 8, the phraseology being unchanged.

This first enactment, in 1897, was made applicable to the territory annexed to the greater city, and I can see no reason for discarding such application now. Although some uncertainty is created by inserting the word *“*Borough ” in subdivision 1 of section 8, yet this special clause for the consolidated city must he given effect and is controlling for Brooklyn. Such was the meaning given to it in the case of People ex rel. Gress v. Hilliard, 85 App. Div. 507.

I am asked to construe this Liquor Tax Law contrary to the wording of the section and in accordance with what is claimed to be the intent of the Legislature. A tax law *181should he clear and concise; and, if it were the intent of the Legislature to apportion the tax according to the United States census, there would he little difficulty in so stating. This the Legislature has not done, as I have attempted to show.

It may he that wise legislation and the policy of the State regarding the liquor tax demand an increase for the borough - of Brooklyn, hut this is a matter for the lawmaking body and not for the courts, which must apply the laws as they are with all their imperfections. The Liquor Tax Law has frequently been amended; and, if the present statute is imperfect or inadequate, the incoming Legislature can provide the remedy. I determine the tax for the borough of Brooklyn to he $975 not $1,200, and the application of the relator is, therefore, granted.

Application granted.