Majority
p. 621People ex rel. Ketcham v. Excise Com’rs of New York. (Supreme Court, General Term, First Department. April 14, 1892.) The opinion of Mr. Justice Barrett, at special term, is as follows: “The review of the excise board contemplated by the act of 1886[1] is summary, and the question whether the board acted arbitrarily has been left to the court or judge issuing the mandamus. The discretion vested in the excise commissioners will not be interfered with on such an application. It is only where there has plainly been an arbitrary abuse of that discretion that the court will interfere. But whether the court will interfere or not is plainly a matter for its judgment upon the petition, writ, return thereto, and the evidence and papers which were before the commissioners. Upon looking over the whole ground, the court will, in a summary way, decide whether the commissioners have abused their power, and arbitrarily rejected the applicant’s petition. It is the court which must decide this, not a jury. The framing of an issue was never contemplated by the act of 1886; and, if that practice were permitted, juries would soon be turned into excise commissioners. We require no opinion from a j ury as to whether the commissioners acted arbitrarily in the matter, but the court will itself decide that question. The order to frame issues should therefore be vacated. ”
Headnote
Mandamus—Excise Commissioners—Refusal to Grant License—Jury Trial.In proceedings on mandamus to review the action of the excise commissioners of New York city in refusing to grant a license, it is not error for the court to refuse to frame an issue of fact to be tried by a jury, since Laws 1886, c. 496, provides that, if the court or judge shall determine on the hearing that the application for a license has been rejected without good and valid reasons, he may direct the excise commissioners to grant a license.
Appeal from special term, New York county.
James W. Ketcham, relator, applied to the excise commissioners of New York city for a license to sell liquors, which was denied. Relator commenced this proceeding by the issuance and service of an alternative writ of mandamus, requiring the commissioners to grant him a license or show cause. Relator appeals from an order denying his motion to frame issues of fact, and submit them to a jury.
Affirmed.
p. 622
Argued before Van Brunt, P. J., and Ingraham and O’Brien, JJ.
Albert I. Sire, for appellant. Edward Browne, for respondent.
We think the order appealed from should be affirmed, on the opinion of the court below, with costs.