People ex rel. O'Toole v. Board of Excise — 42 N.Y. St. Rep. 39

Majority

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The People ex rel. James O’Toole and Patrick Higgins, App’lts, v. The Board of Excise of Brooklyn, Resp’ts.

(City Court of Brooklyn,

General Term,

Filed December 29, 1891.)

Headnote

Excise—Refusal of license.

It is clearly within the power of the board of excise to hold, in the exercise of its discretion, that liquor stores on three corners of intersecting streets render che fourth corner a place where a license might not properly be granted, and their decision to that effect cannot be held an abuse of discretion. t

Appeal from a final order denying to appellants a writ of mandamus directing the respondents to grant appellants a license.

It appears that there were licensed places on three of the corners formed by Columbia place and State street, and that appellants desired to obtain a license for the remaining corner. The respondents returned as a reason for their refusal that there were enough licensed places already at said corner.

J. T. Marean, for app’lts; T. A. McGloskey, for resp’ts.

The relators applied to the board of excise for a license to sell liquor at the northwest corner of Columbia place and State street in this city. The application was refused, and

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thereupon the relators, under the provisions of § 1 of chapter 496 of the Laws of 1886, applied to this court for a writ of mandamus to review the action of the board of excise. The board of excise' made return to said writ, and, on a trial of the matters involved, the learned trial j udge found, as matter of fact, inter alla, “ that the only reason why a license might not properly be granted for said place was, and is, that there was and is a sufficient number of licensed places in the neighborhood to supply the demand, the place being the northwest corner of Columbia place and State street, and there being a licensed saloon in actual operation on each of the other three cornel's,” and the learned trial judge also found, as a conclusion of law, that said reason was a “ good and valid reason ” for refusing Ihe application, wdthin the meaning of the statute, and the proceeding was accordingly dismissed. This appeal is taken from the final order dismissing the proceeding.

The only question for our consideration on this appeal is whether the application of the relators for a license “ has been arbitrarily rejected, or has been rejected without good or valid reasons therefor.’’

The learned counsel for the appellants contends that the reasons which will justify a refusal of an application for a license are not such as either the board of excise or the court, in the exercise of its own wisdom, may deem “ good or valid; ” that no intent to restrain the liquor traffic further than to avoid some of its evil consequences can be imputed to the legislature, and that the only “ good or valid reason,” within the meaning of the statute, for the refusal of a license must be that the granting of it will involve some evil consequences to society.

We do not think that this contention can be sustained so far as it seeks to maintain that the board of excise are not vested by the statute with the exercise of discretion as to the granting of licenses. The title of the act is “An act to regulate the sale of intoxicating liquors, etc.,” and one of the definitions of “regulate” given by Webster is “to direct by rule or restriction.” The act itself provides that no license shall be granted unless the board of excise “ shall be satisfied upon examination” inter alla “ that a license may properly be granted for such sale in the place proposed.” We think that this language was intended to vest the board of excise with the exercise of a discretion as to the propriety of granting a license for this particular place. The right of review of the action of the board of excise only exists, under the statute, where it appears that the application “has been arbitrarily rejected, or has been rejected without good or valid reasons therefor.” it certainly appears from the return that the board of excise have not rejected this application arbitrarily or in a despotic manner; the board of excise has assigned as its reason for rejecting the application of the relators, that there were already licensed saloons in actual operation on each of the other three' corners of Columbia place and State street. We think that is equivalent to a finding by the board that a license might not properly be granted in the place proposed. We can not say that the reason assigned for refusing the license was not “ good or valid.” As before stated,

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the power is vested by the statute in the board “ to regulate ” the sale of liquor, and it was clearly within the power vested in the board by the statute, in regulating the sale of intoxicating liquors, to hold, in the exercise of its discretion, that liquor stores on three out of four corners of intersecting streets rendered the fourth corner a place where a license might not properly be granted. It never was intended by the statute to constitute the judges of the courts excise commissioners, but only to give the courts a power of review over any abuse of the discretion vested in and exercised by the board of excise. We are of the opinion that no abuse of discretion is shown in the case before us.

For these reasons, we think that the action of the board of excise should be sustained, and that the order dismissing the proceedings should be affirmed, with costs.

Van Wyck, J., concurs.