People ex rel. Dorr v. Thacher

This is an appeal from an order of the special term denying a motion for a mandamus requiring the defendant, mayor of the city of Albany, to grant to the relator a license for musical entertainments at his place of business in said city.

The refusal of the mayor to grant the license was put on the ground that its issuance rested in his discretion; and that inasmuch as the relator kept a saloon where ale and spirituous liquors were sold, musical entertainments there, would, in his judgment, have a demoralizing influence, and, therefore, he deemed it inadvisable to grant such

The act providing for the government of the city of Albany (chapter 298, Laws 1883) confers power upon the common council ‘ ‘ to pass general permissive, restrictive or prohibitory ordinances * * * in relation to the regulation of places of public amusement ” (subd. 15 and 20 of sec. 14, tit. 3 of said act), which, as there declared, 1 ‘ shall be licensed by the mayor, under such regulations for the safety of the public attending them as the common council may by ordinance determine.”

This power was exercised by the common council by the adopting of chapter 30 of its ordinances. Section 1 of which provides that no “theatrical or musical ertertainment, * * * or place of amusement, * * * shall be had, maintained or kept unless license therefor is first duly obtained;” and section 2 provided that “the mayor may issue ” such license on payment of -twenty-five dollars therefor, or, by section 3, of a reduced fee in his discretion.

Mow, by the city charter, places of amusement are required to be licensed by the mayor under such restrictions as the common council should, by ordinance, declare; and that body has, by ordinance, declared on what conditions he may grant such licenses, to wit: on payment of a license fee of twenty-five dollars, or a reduced fee in his discretion. Mow it is manifest that the entire subject of licensing places of theatrical or musical entertainment must devolve upon the mayor by a just and fair construction of the city charter and ordinances, the right to issue or withhold a license in such case vesting in his discretion, regulated and restricted only by the payment of a specified license fee; and even this fee was in his discretion as to amount, save as it should not exceed twenty-five dollars. This was a matter of police regulation, which should in all propriety be exercised in each individual instance by sound judgment. It was not intended that a license should be granted to every one who should apply for it and tender the license fee, whatever might be his character, or whatever might be the character of the proposed entertainments or amusement. The policy of the- law was clearly to the contrary of this.

So the right and power was conferred upon the mayor to discriminate, and himself determine who should have licenses, judging of the character, associations, surroundings and business of the applicant, and also as to the kind or description of the proposed entertainment or amusement —whether it would or would not be in accordance with good order and sound morality. The language of the

It is true the word “may ” in a statute is sometimes to be construed “must or “ shan,” and is then held like the latter words, mandatory. This construction will obtain when the statute directs the doing of a thing for the sake of justice or the public good, or when to read it otherwise, would defeat or subvert the purpose of the act. These reasons not existing, the ordinary sense of the word “may” is the legal one, and then the word must be held to be permissive, not mandatory. Warner v. Beers, 23 Wend., 156 ; Williams v. The People, 24 N. Y, 409 .

In this last case Judge Denio says: “The primary and most common use of the word “may” certainly is that contended for, namely, the giving permission to perform the act referred to'; and when there is nothing requiring it, in the connection of the language, or in the sense and policy of the provision, I do not think we should be warranted in giving the word an unusual or even a secondary meaning. This language has direct application to the case in hand. There is certainly in this case nothing in the connection of the language, or in the sense and policy of the provision, requiring that the word ‘ ‘ may ” should have any other than its ordinary meaning.

Indeed, the sense and policy of the provisions here brought under notice, admit as we think, of no other meaning; and it is plain beyond peradventure, that neither protection of public interests or of private right requires that “may” should be here held to be mandatory.

As respects private right, the relator shows no other right than such as pertains to each individual citizen as such. There is manifestly no constitutional question involved in the case, if for no other reason than because the entire subject is one of police regulation.

In conclusion, we are of the opinion, that the granting or withholding of the license applied for by the relator was under the provisions of the city charter and ordinances of the common council, a right and power vested m the mayor to be exercised by him entirely in his discretion.

Order appealed from affirmed, with ten dollars costs and disbursements for printing.

Learned, P. J., and Landon, concur.