In re R. H. Macy & Co. — 74 N.Y. St. Rep. 587

Majority

p. 587

In the Matter of an Application by R. H. Macy & Company, to Compel the Granting of a Store-keeper's License.

(Supreme Court, Appellate Division, First Department,

Filed May 1, 1896.)

Headnote

1. Excise—School-house.

Board of excise must act upon an application for a license when made and upon the facts as they then existed.

2. Same.

Where the nearest entrance of the building sought to be licensed from the school house is less than two hundred feet, the license cannot be granted upon the condition that the entrance should be closed, when there is no intention to close it except on the condition that the license is granted.

S. Same.

The prohibition is against the selling of liquors in any part of the building- which is under the same control, where the nearest entrance to such part of the building fronts on the street within two hundred feet of the school house.

Appeal from.an order quashing a writ of mandamus.

The relators, having a large department store on Sixth avenue, extending from Thirteenth to Fourteenth streets, in the city of dxew York, made application to the respondents April 24, 1895, for a storekeeper’s license. May 4 and 7, 1895, the inspectors of excise reported that the nearest entrance to the relators’ store was within 200 feet of the nearest entrance to the public school building on the opposite side of the street. The relators’ premises had been licensed for two years prior to May 11, 1895. The respondents refused to grant the relators a license, for the reason that they had no license prior to the passage of chapter 480 of the Laws of 1893, and that the nearest entrance to their store was on the same street and within 200 feet of the entrance of a building •occupied exclusively as a schoolhouse, and that the respondents were of the opinion that it was not for the best interests of the community that strong and spirituous liquors should be sold in any building where dry goods or other 'articles of merchandise were sold and disposed of, and which was visited by women and children in large numbers; and the respondents were satisfied in their discretion that the relators’ store was not a fit and proper place to be licensed. This writ was obtained May 29, 1895, and the order quashing it was made August 6, 1895.

Daniel G. Thompson, for relators; Julius M. Mayer, for resp’ts.

The first reason assigned by the respondents for refusing the license was under section 43, c. 401, of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, which reads as follows:

“Mo person or persons who shall not have been licensed prior to the passage of this act, shall hereafter be licensed to sell strong and spirituous liquors, wines, ale or beer, in any building not used

p. 588

for hotel purposes and. for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue and within 200 feet of a building used exclusively as a church or school-house. The measurements shall be taken from the nearest entrance of the building used for such church or schoolhouse to the centre of the nearest entrance of the place for which an application for license has been made.”

This reason did not involve the exercise of any discretion on the part of the respondents. The statute was an express prohibition, and the respondents were not authorized to grant the relators a license at all if the facts brought the case within the terms of the statute. It appears that the measurement provided for by the statute was in this case much less than 200 feet. It was only about 66 feet. ' It is said, however, that the relators then offered to entirely close up the entrance to- their store in question. We do not think it was within the province of the respondents to make any bargain with the relators upon this subject. The respondents were under obligation to act upon the application when made, and the facts as they then existed. The entrance was hot then closed, hut was open, and remained so, after the application was made, and the license was refused. The license could not have been granted upon the condition that the entrance should he closed, and there was no intention to close it except on the condition that the license was granted. The policy of the statute would seem to prohibit the construction of the statute claimed by the relators. Accessibility was not everything aimed at. It was the vicinity, the neighborhood, the surroundings of the school which the statute was enacted to protect. The legislature may well have been unwilling to leave the matter of access in the hands of the relators. The relators may have locked the door, and stipulated to keep it so, but what was the guaranty that they would keep it so? If it he said that they would subj ect themselves to a revocation of the license if they failed to keep the door locked, would the legislature he willing to trust the matter to the vigilance of the hoard? As long as the door was there, though locked, an element of uncertainty would be introduced. It should he held there was an entrance so long as it was there as a means of access.

Again, it is said that the entrance to which the measurement should have been made was the entrance to the rooms and floor of the store where the sale of liquors was actually to he made, and that such sales were to he made in the rooms upon the fifth floor of the building, and it was more than 200 feet from the schoolhouse1 to the rooms upon that floor. Ro such construction can he placed upon this statute. The intention is plain. The prohibition is against the selling of liquors in any part of the building which is under the same control, where the nearest entrance to such part of the building fronts on the street within 200 feet of the schoolhouse. If the party applying for the license had control of hut a

p. 589

part of the building, the entrance referred to in the statute as the nearest would be an entrance into such part of the building from the street, though it might not be the nearest entrance to some other part of the building occupied by some other party. But where, as here, the whole building was under the control of one firm, who were carrying on therein one general business, the measurement must be to the nearest entrance from the street to any part of the building. It will not do to say that a license could be properly granted for a building in close proximity to a schoolhouse provided that the sale of liquors was confined to some room or part of the building which was at least 200 feet from the entrance to the sehoolhoqse. This principle here determined was decided under a similar statute of Massachusetts in Com. v. Jones, 142 Mass. 573 . We conclude that the license was properly refused for the first reason assigned by the respondents, and it is unnecesary, therf ore, to consider or discuss the remaining reason assigned.

The writ was properly quashed, and the order appealed from should be affirmed, with costs.

All concur.