People ex rel. Ernest Ochs, Inc. v. Hilliard , 3 Liquor Tax Rep. 99 ( 1903 )

O’Brien, J. (dissenting):

I dissent, thinking that the Legislature did not intend in such a case that a forfeiture should be enforced. In Matter of Lyman (163 N. Y. 536) the court said: “At the time this proceeding was commenced, the appellant did not hold the certificate, but had prior thereto voluntarily surrendered it. * * * The question, therefore, is not whether his license could be canceled if he still held it, but whether it can be canceled for the sole purpose of forfeiting the rebate. The argument that, as he was not entitled to receive the certificate, he was not entitled to hold it, may be effective to deprive him of it as a license, and not effective to forfeit his right to the rebate. In the former case, the statute should be construed so as to accord to fraud no favor; in the latter case, it should be so construed as not, by a hostile construction of doubtful phrases, to visit a penalty or forfeiture upon a former certificate holder. * * * Forfeitures are odious in law.”

These words apply even more forcibly in the case at bar, wherein a third party who, innocent of any misrepresentation on the part of those who held the certificate, advanced the money which paid for the certificate and is now seeking its repayment, the business having been discontinued and abandoned and the certificate destroyed by fire two weeks after it was issued. The privileges granted by it were thus never enjoyed; no attempt or intention exists to do business under it, and no proceedings of any kind have been instituted to revoke the certificate. Under such circumstances, the policy of the State has. been to refund moneys advanced for benefits not received, and if the State is not to lend its aid to what amounts to a fraud upon, the petitioner — taking the view of the trial court that no partnership in fact existed between the holders of the certificate— the money advanced by the relator should justly be returned to him.

Upon the ground, therefore, that this case is not such as warranted the commissionér in refusing to grant the petitioner the rebate sought, I think that the application for the peremptory writ of mandamus should have been granted, and that the order and judgment appealed from should be reversed.

Order affirmed, with costs.