People ex rel. Martin v. Symonds — 53 N.Y. St. Rep. 718

Majority

p. 718

The People ex rel. William D. Martin v. Hermon Symonds et al.

(Supreme Court, Special Term, Ulster County,

Filed June 1, 1893.)

Headnote

1. Excise—Laws 1893, chap. 481—Beview of previous action of board of excise.

As the right of an applicant for a license to have his application considered by the hoard of excise was given by the act of 1892, a refusal by the board to grant such license may be reviewed by certiorari under the act of 1893, although such determination was had prior to the time the latter act took effect.

3. Same—Election of commissioners opposed to licensing.

The hoard of excise is not justified in refusing to grant a license, without considering the merits of the application, on the ground that a majority of the hoard were nominated and elected by persons opposed to granting licenses. Their action being based on a misapprehension as to the existence of a law preventing them from considering and determining whether licenses, should be granted, was a legal error.

3. Same—Local prohibition.

Even if § 41 of chap. 401, Laws 1893, authorizes a majority of voters to-vote in favor of local prohibition, and until such vote Is reversed no licenses can he granted, the election of commissioners who agree not to-grant licenses is not equivalent to a vote for local prohibition.

Certiorari to review action of the board of excise of the town, of Shandaken.

Brinnier & Newcomb, for relator; R. Bernard, for resp’ts.

This is a proceeding by certiorari to review the action of the respondents as excise commissioners of the town of Shandaken, in refusing to grant the application of the relator' for a hotel license.

The proceedings are instituted under chapter 481 of the Laws of 1893,which amends § 24 of chapter 401 of the Laws of 1892., That section authorizes a certiorari to review the action of the board of excise in denying an application for a license in cities of over-30,000 inhabitants. Chapter 481, Laws of 1893, so amends § 24-as to authorize a review of a denial of an application 'for a license in any of the cities or towns of the state.

p. 719

This act, which was approved by the governor on the 29th day of April, 1893, does not provide when it shall take effect. Therefore, under §' 43, article 2, chapter 8, of general laws, it. took effect twenty days after its approval by the governor, or on the-19th day of May, 1893.

The proceedings were instituted on the 20th of May, and, therefore, subsequent to the date whereon the statute took effect.

The right of the relator to have his application for a license considered by the board of excise was provided by the statute of 1892, and was therefore in effect on the 1st day of Majq 1898, when the board of excise of the town of Shandaken met and refused to grant the license asked for. That which the legislature undertook to do by chapter 481 of the Laws of 1893 was to provide a remedy by which the determination of the board of excise in certain cases should be reviewed. It is within the province of legislative authority to provide a remedy which shall operate on a right previously existing.

By § 2125 of the Code of Civil Procedure proceedings by certiorari may be instituted at any time within four months after the right accrues. The preliminary objection, therefore, does not seem to have been well taken. By the return made by two of the members of the board of excise to the writ, it appears that the board did not pass upon the merits of the application. The return declares that “in refusing said application for license we did not make any inquiry as to the sufficiency of the accommodations of the applicants under the statute, nor as to the necessity of the license applied for, nor as to the form or sufficiency of the bond or application filed.”

Instead of considering the application, the board passed and entered on its minutes the following statement and resolution:

“ Resolved, that the reason given by the excise board for refusing to grant licenses in the town of Shandaken is this, that the majority of said board was elected by the people of the town for the purpose of refusing to grant licenses.” It further appears from the return that the majority of the board of excise were placed in nomination by persons opposed to the granting of licenses, and their election was deemed by them to have been a determination by ballot on the part of the qualified voters of the town in opposition to the granting of licenses, and it was supposed that such determination was in accordance with some statute providing for local option.

By chapter 3Ó0, of the Laws of 1845, electors of the several towns and cities of this state were authorized to determine by ballot whether the members of the boards of excise in their respective towns and cities shall or shall not grant licenses for the selling of intoxicating liquors, and in case the majority of the voters should vote in favor of “no license,” then the board of excise to be prohibited from granting any licenses. This act was repealed by chapter 274 of the Laws of 1847.

The learned counsel for the board of excise on the argument confessed that he had been unable to find any subsequent statute.

p. 720

on the subject other than § 41 of chapter 401, Laws of 1892. That section provides “ nothing herein except § 31 shall in any manner apply to any town- where the majority of voters have voted for, or hereafter vote for, such local prohibition.” The section quoted seems to recognize the existence of a statute on that subject, but, as has already been observed, there was none at the time of its passage. If it could be assumed that this section authorizes a majority of voters to vote in favor of local prohibition, and that thereafter and until the voters of such town should by vote reverse their action there should be no licenses granted, nevertheless it would not support the position taken by the respondents here.

The ballots were not cast in favor of local prohibition, but for candidates for the office of excise commissioners. The conclusion is, therefore, reached that the board of excise erred in assuming the existence of a law preventing them from considering and determining whether licenses should be granted to the several applicants.

Their action, being based on a misapprehension of law, amounted to legal error, which is properly reviewed by certiorari under the statute referred to. As it appears from the return that the board of excise did not consider the application of the relator upon the merits, as it was their duty to do, the matter must be sent back to them for their consideration and determination.

Ordered accordingly.