This is an action to recover the penalty of a bond given on the issuing of a liquor tax certificate to the appellant Scherno, on the ground that there had been a breach of the condition of the bond in that he had allowed the premises to become disorderly and had made a material false statement in his application for the certificate in stating that the premises belonged to his wife, and that he might lawfully carry on a traffic in liquors thereon. The defense is that there was no consideration for the bond for the reason that the premises for which the certificate was issued formed a part of the military reservation and post known as the "Plattsburgh Barracks" of the United States of America. The facts are not in dispute and were found by the court.
The state having given its consent to the purchase by the United States (see Laws of 1890, chap. 18), the legislative power of Congress over the lands purchased is exclusive. (Commonwealth v. Clary, 8 Mass. 72; Fort LeavenworthRailroad Company v. Lowe, 114 U.S. 525.) The state had no power to license the traffic in liquors on said premises, even if Congress had not expressly prohibited it, as it has. (U.S. Statutes at Large, 1901, Sec. 38, chap. 192.) The liquor tax certificate was, therefore, a nullity and furnished no consideration for the bond.
It has been ruled below that the defendants are estopped by statements in the application to deny that the traffic in liquors could lawfully be carried on on said premises. But the case lacks one of the essential elements of an estoppel. The state has lost nothing in reliance upon the statements in the application. Indeed, it has received the license tax. Metropolitan LifeInsurance Company v. Bender (124 N.Y. 47) is a typical case of an estoppel arising from a recital in a bond. The recital was that the bond was executed under seal. It was executed by the *Page 272 obligor and delivered by him to the person interested in having it accepted, who attached a seal and delivered it to the obligee, who accepted and acted upon it on the supposition that it had been executed under seal. I cite that case to mark the distinction between it and a case like this in which no possible loss could have been sustained by the obligee in reliance upon the alleged false statement.
It is suggested, however, that, although the liquor tax certificate gave the holder no right to traffic in liquors on the premises in question, it still protected him from a criminal prosecution in the United States courts under section 5391 of the United States Compiled Statutes, which provides that "if any offense shall be committed in any place which has been or may hereafter be ceded to and under the jurisdiction of the United States, which offense is not prohibited or the punishment thereof is not specially provided for by any law of the United States, such offense shall be liable to, and receive, the same punishment as the laws of the state in which said place is situated, now in force, provide for the like offense when committed within the jurisdiction of such state." But as the state cannot license the sale of liquors on a government reservation over which the jurisdiction of Congress is exclusive, the lawfulness of such sale thereon is not affected by the question whether the state has granted a license therefor. The act having been prohibited and no punishment specifically provided, it may be that the offender might be punished in the United States courts the same as he might be punished in the state courts for an unlawful sale of liquor on lands within the jurisdiction of the state. That question is not before us, and, in any event, it is plain that the liquor tax certificate granted in this case would furnish the appellant Scherno no defense to such a prosecution.
The judgments of the Appellate Division and of the trial court should be reversed and the complaint dismissed, with costs in all the courts. *Page 273