People ex rel. Schwab v. Grant — 35 N.Y. St. Rep. 596

Majority

p. 596

The People ex rel. August Schwab, App’lt, v. Hugh J. Grant, Mayor, etc., Resp’t.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Municipal corporations—New York—Auctioneer’s license.

The mayor of the city of New York is not hound, in all cases, on tender of a sufficient bond, to grant an auctioneer’s license. He has power, in a. proper case, to refuse to grant such license, and whether proper cause existed for such refusal in a particular case cannot he reviewed on application for mandamus.

Appeal from order denying motion for peremptory mandamus.

F. J. Bischoff for app’lt; H. B. Twombly, for resp’t.

Some time in April or June, 1890, the relator applied for a license as auctioneer in the city of New York, presenting an apparently sufficient bond. The mayor refused to grant the license upon the ground that since 1888 Schwab had acted as a public auctioneer without a license and had therefore-been guilty of a misdemeanor under the Revised Statutes, and that in other respects his character was not entirely above suspicion.

The question submitted upon this appeal seems to be, whether or not the mayor upon the tender of a sufficient bond by an applicant for an auctioneer’s license is bound in all cases to grant the same.

We think there can be but one answer to this proposition.

It is clear that an auctioneer cannot lawfully conduct his business without having obtained a license, and the fact that the mayor has power to issue the license implies the power on a proper occasion to refuse to issue the same. U. S. Life Ins. Co. v. Poillon,, 27 N. Y. State Rep., 899.

In the case cited the principle is established that where prior to-the doing of a thing an application for leave to do the same is a condition precedent, the power to refuse such leave in a proper case is necessarily implied. That this power of refusal exists, as has been pertinently suggested in the opinion of the judge who heard the application in the court below, appears from the provisions of the law relating to licensing auctioneers, because the mayor, under certain circumstances, is given the power to revoke a license because of the misconduct of the licensee, and the sole result of such revocation, if the relator’s theory is true, would be that the next day upon the presentation of a proper bond the mayor would be required to reissue it. N o such absurd results could ever have been contemplated.

Indeed, if for no other reason, it would be clear that it was the intention of the legislature that the mayor should exercise a discretion in the issuing of the license and that it might be refused for proper cause. Whether . or not proper cause existed for the refusal of the mayor in the case at bar cannot be reviewed upon mandamus; because mandamus will not issue unless the relator shows a clear legal right to the writ. And questions as to the weight of evidence or as to whether the refusal of the mayor has

p. 597

been arbitrary or not must be brought to the attention of the court in a different manner in order that it may obtain jurisdiction to review the same. ■

Our attention has been called to the fact that the Law of 1853, which was commented upon by the learned judge in his opinion, was repealed by the Laws of 1866. But this in no manner affected the reasoning of the opinion, because the pertinent provisions of the Law of 1853 had been re-enacted in the consolidation act and are still in existence.

We are of the opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett and Barrett, JJ., concur.