Dornhoefer v. Farley

Thomas, J.: The appeal is from an order denying a motion to enjoin, pending trial, the Commissioner of Excise and his special deputy from enforcing the civil penalties entailed by the defendant’s conviction in Special Sessions for selling beer on Sunday to policemen. The appellant’s argument is this: The appellant was found guilty; sentence was without his consent suspended; section 2 of the Liquor Tax Law defines conviction to mean guilt resulting from plea of guilty, the decision of a court or magistrate, or the verdict of a jury, “irrespective of the pronouncing of judgment or the suspension thereof; ” the person so convicted cannot appeal to the Supreme Court (People v. Flaherty, 126 App. Div. 65); persons similarly situated outside Greater New York under section 750 of the Code of Criminal Procedure, amended by chapter 685 of the Laws of 1907, can appeal, or within Greater New York persons convicted and sentenced can appeal. Therefore, if the liquor certificate be seized pursuant to the present conviction, the appellant will be deprived of his property without due process of law and denied equal protection of the law. Such is appellant’s contention. Consideration of simple principles disposes of the appeal. A person may sell liquor only under such conditions as the State may impose on his occupation. (Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; People v. Meyers, 95 id. 223, 225.) The condition imposed is, that if he [602] be found guilty of violating the Liquor Tax Law in certain-particulars, he shall, even if sentence be suspended whereby appeal is denied, forfeit his right to sell liquor. This law within Greater New York prevails with uniformity. So the appellant’s right to sell liquor was, among other things, conditioned upon forfeiture following conviction without appeal. The question, then, is whether the condition was beyond the power of the State. The license to sell liquor is subject to burdens cast upon it by the statute. (Matter of Livingston, 24 App. Div. 51.) It has become a recognized status of the law that the several divisions of the State may be governed by widely diverse statutes relating to traffic in liquor. Such statutes have commonly placed limitations upon the city of New York that do not exist elsewhere. (Metropolitan Board of Excise v. Barrie, supra.) Indeed, in localities the right to sell liquor often is denied, if the voters of the community so direct, and the exercise of evep. the delegated power is valid. (Village of Gloversville v. Howell, 70 N. Y. 287, 291.) So a political division is, or may be made, a unit for the adaptation of special provisions and conditions. It seems a somewhat mild exercise of the police power to provide that in the city of New York the convicted holder of the license may escape punishment by suspension of sentence, but that in such case he may not appeal although the right to appeal be extended to those in other mimicipalities. The right to appeal is not a constitutional guaranty (People v. Rutherford, 47 App. Div. 209), and the denial of it to a class of litigants and the granting of it to other classes is a legislative prerogative. It does not appear that the appellant at the time his sentence was suspended expressed disapproval of his escape from penalty. Had he been sentenced he could have appealed, but the forfeiture would have resulted. (Liquor Tax Law, § 36, subd. 2.) It is unnecessary to consider the possibility of his staying, pending appeal, the enforcement of the forfeiture and a reversal of the judgment. That is entirely problematical. But the exact question is, must an appeal lie in the city of New York, if it is given in other parts of the State, or otherwise the suspension fail to have the force of a conviction whereon the forfeiture of the license can be based? The history of the regulation of the liquor [603] traffic compels a negative answer. It is hardly necessary to add that there is no impairment of any right preserved by the Federal Constitution. (Beer Co. v. Massachusetts, 97 U. S. 25, 33; Kidd v. Pearson, 128 id. 1.) The order should be affirmed, with ten dollars costs and disbursements. Jenks, P. J., Burr, Carr and Putnam, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.