McNaughton v. Board of Excise — 5 Misc. 457

Majority

p. 457

Matter of Application of McNaughton, as Relator, v. Board of Excise of the Town of Argyle.

(Supreme Court—Clinton Special Term,

November, 1893.)

Headnote

Upon return of a board of excise to a writ of certiorari to review its proceedings in refusing to grant a license, this court will only consider the reasons which appear in the minutes of the board at the time of refusing said application.

Boards of excise are elected to grant licenses, and when refused a valid reason must be given therefor.

The board of excise of the town of Argyle met on the 1st day of May, 1893, and adjourned without day before petitioner’s application for a license was filed, That subsequently, and on the same day, the board reconvened and then adjourned to the 15th of May, 1893, on which day the members of the board present acted adversely on said application. Reid, that the filing of applicant’s petition at the second meeting on the 1st day of May, 1893, was illegal, and that no action by the board legally constituted has ever been taken on the applicant’s petition, and that, therefore, the writ of certiorari should be quashed.

A writ of certiorari to review the proceedings of the board of excise of the town of Argyle, Washington county, in refusing to grant a license, was issued at the Saratoga Special Term on the 1st day of July, 1893, upon the verified petition of Fred. McNaughton, the applicant, and was made returnable before Hon. S. Alonzo Kellogg at his Chambers in Plattsburg, N. Y., on the lltli day of July, 1893. The opinion sufficiently ' states the facts.

Delcour S. Potter and A. D. Wait, for the motion.

John B. Conway and D. M. Westfall, opposed.

The return to the writ of certiorari issued herein makes voluminous • statements of facts, mainly on information and belief, but fails to state that such facts weighed with the board of excise in their refusal to grant license to the applicant, McNaughton. I think the only reasons which can be considered on this review are those appearing in the minutes of the board, and the reasons given at the

p. 458

time of the refusal. Only one of these reasons seems to me valid, the first reason. The minutes of the first day’s meeting show that the board had adjourned without day before the application was filed. That they subsequently, on the same day, reconvened and then adjourned to the fifteenth of May, on which day the members of the board present acted on the application and adversely to the application. It is of this action that the petitioner complains.

It is clear to me that this meeting was unauthorized. • The board, after adjournment without day could not again convene in this irregular manner; hence, no action by the board legally constituted has ever been taken on the applicant’s petition.

The idea seems to be prevalent among the people, and particularly among members of boards of excise, that boards of excise may be elected to refuse to grant licenses; that members of the board have the right to assume that because, they were avowed no-license men before election that in accepting the office they have no duty to perform. Such is not the case as the law contemplates it. Excise commissioners are elected to grant licenses. That is their sole duty. The people have provided a way by which they may express themselves against the sale of intoxicating liquors in their towns by voting for local prohibition direct, as pointed out in section 41 of chapter 401 of the Laws of 1892. Such an expression dispenses with excise commissioners entirely ; but so long as the people elect excise commissioners, the members of the board so elected can assume nothing except that they were elected to grant licenses.

On such application for a license they must exercise their judgment, investigate and determine as to the fitness of man and place, and the needs of the particular locality, and if license is refused a valid reason should be apparent for such refusal. "When valid reasons are given they must be deemed true and conclusive on review until the legislature gives powers to the courts to take testimony to test the truthfulness of such stated reasons.

p. 459

On the ground stated in the first reason given by the board, and entered in their minutes of May 15, 1893, this writ is quashed, with costs to the board of excise in the sum of fifty dollars.

Writ of certiorari quashed, with costs.