Opinion
April, 1908.
Sumner Bowman, for petitioner.
William F. Haggerty, for respondent.
H.H. Kellogg, for commissioner of excise.
Contrary to the contention of the respondent, the Liquor Tax Law is to be construed liberally, that it may accomplish the purposes for its enactment.
People ex rel. Cairns v. Murray, 148 N.Y. 171-175. There I consider the attempted closing of the main entrance of the saloon in question on Fifth avenue and the opening of the side door on Seventy-sixth street a mere subterfuge which the court should brush aside. The respondent's place where he is trafficking in liquor is situated on the corner of Fifth avenue and Seventy-sixth street in the borough of Brooklyn. When a previous license for this place was revoked and cancelled by the court, because of the failure to procure the requisite consents from dwelling-house owners, the main entrance to the saloon was on Fifth avenue. Since then and prior to the issuance of the certificate here sought to be revoked, this main entrance, consisting of large double doors has been glassed over, the show windows on each side of the doorway being continued so as to pass over or in front of the door, and the small side door on Seventy-sixth street is now used as the only entrance. The point to all this is that the entrance on Fifth avenue is within 200 feet of the property of the Bay Ridge Presbyterian Church, while the side door is beyond that limit. That the window extension is but a temporary closing of the Fifth avenue entrance and a mere evasion of the law is quite evident from the exhibit which shows the main door or entrance still open and ready for use and men standing in the doorway. The entrance is not permanently blocked up and appearances indicate that it wasn't meant to be. I therefore, for the purposes of this case, consider the entrance to be on Fifth avenue and the distance of 200 feet to be measured from that doorway.
There are, however, other considerations which prevent the granting of the petitioner's request. While I believe that the Liquor Tax Law should be liberally construed in favor of schools, churches and homes, and the liquor trafficker strictly held to the provisions which permit him to carry on such business in our midst, yet the court is bound to give those provisions a reasonable interpretation and not construe them beyond their fair meaning or extend prohibitions to cases and situations which the law has not covered. In other words, the court can and should merely declare and enforce what the statute has enacted.
Section 24, subdivision 2, specifying the places in which traffic in liquor shall not be permitted, includes any place which shall be on the same street and within 200 feet of a building occupied exclusively as a church or school-house.
On Seventy-sixth street and within 200 feet of the Fifth avenue entrance to this saloon is a building purchased in July, 1907, by the Bay Ridge United Presbyterian Church for church purposes. It is for me to determine whether this building is used exclusively as a church within the meaning of the above statute. The house was built for and has been used as a frame dwelling-house very much like the other homes and dwelling-houses to be found in the suburbs, and its structure has not been changed since the purchase. The parlor floor is used for the services of the church and Sunday school, while the pastor or minister in charge lives with his family on the second floor, keeping house with the usual accommodations and conveniences for that purpose. The third floor is occupied by a woman with her children, who more or less looks after the work to be done on the premises. The building was built for a dwelling-house, not for a church, and its construction has not been changed; two families now live in it and, although the property is owned by a church organization and the parlor floor used for the usual and regular church and Sabbath school services, yet it is as much a dwelling as a church and cannot be considered as used exclusively for the latter purposes without twisting the word "exclusively" from its usual meaning. The word "exclusively" means something, as was said in Matter of Rupp, 55 Misc. 314, which recognized that when a building was used part as a church and part as a dwelling the protection of the statute did not apply to it.
I have not overlooked the application of the word "exclusively," as made in People ex rel. Clausen v. Murray, 5 A.D. 441, and in People ex rel. Cairns v. Murray, 148 N.Y. 171, but the residence in the school building in those cases was merely incidental to and in aid of the purposes of the institution, and so slight in extent as not to deprive the school building of its exclusive character.
A parsonage might be so connected with a church as to be really one building and yet not deprive the church of its exclusive character within the protection of this law, but that cannot be said of the building in this case, which has never ceased to be used as a house to dwell in, with the exception of the first or parlor floor.
It must, of course, be conceded by the petitioner that, even if the entire building is not used exclusively as a church, as he claims, the parlor floor is so used and, therefore, the building is not used exclusively as a dwelling, requiring a consent from the owner in accordance with subdivisions 5 and 8 of section 17 of the act. Part of the house is used for dwelling, part for meeting rooms.
For the above reasons I must dismiss the petition.
Petition dismissed.