People v. Jackson

The defendant sold certain stock transfer tax stamps without the consent of the- State Comptroller, in violation of section 2-71a of the Stock Transfer Tax Law.

The constitutionality of the statute is attacked by the defendant on the ground that it deprives the defendant of his property without due process of law, and that it deprives him of the equal protection of the laws by subjecting him to the arbitrary exercise of the power of a State official to decide whether or not the defendant may sell his property — these stamps. This is the only point urged by the defendant.

This statute has been considered by the courts heretofore. (See People ex rel. Isaacs v. Moran, 74 Misc. 491, 150 App. Div. 226, and 206 N. Y. 670.)t It appears in that case that the relator, a stamp dealer, had applied to the State Comptroller for permission to sell such stamps, hut that consent to do so had been denied.

This circumstance is not present in the case at bar. No *18application, it seems, was made by the defendant, or on his behalf, to the State Comptroller in office at the time just preceding the sale of these stamps, for his written consent to make the sale in question; nor does it appear that, if any application was at any time made, the State Comptroller refused to grant the authority sought by the defendant. How can he, therefore, be permitted to question the constitutionality of this law ? (Gundling v. Chicago, 177 U. S. 183.) Did not the defendant purchase these stamps with knowledge — if not actual, at least presumptive •— of the limitations and conditions as to the salability of such stamps, at the time he procured or purchased them?

I am of the opinion, however, that this legislation comes within the proper exercise of the police power of the State; and I think that the People are entitled to a conviction.

O’Keefe, Herrman, JJ., vote for conviction.

Note.— Affirmed by Appellate Division, First Department, Nov., 1916. No opinion.