People ex rel. Beller v. Wright — 10 N.Y. Sup. Ct. 306

Majority

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THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES E. BELLER, v. JAMES H. WRIGHT and others, THE BOARD OF COMMISSIONERS OF EXCISE OF THE VILLAGE OF DELHI.

Headnote

Board of excise—power to revolee licenses—sec. 4 of chap. 549 of 1873—power to administer oaths.

Under section 4 of chapter 549, Laws of 1873, authorizing the board of excise to revoke the license granted to any person if they should become satisfied that he has violated any of the provision of the act, the licensee is not entitled to a trial by jury.

Upon the hearing before the board, the witnesses on the part of the complainants were examined under oath, against the objection of the relator, who did not, however, ask that any person.be examined in his behalf, either with or without oath. Held, that, even if the board had no power to administer oaths, still, as the information was before them, and satisfied them that the relator had violated the law, it was their duty to revoke his license.

Semble that the board had power to administer oaths under the provision authorizing them to examine witnesses under oath.

Certiorari to the hoard of commissioners of excise of the village of Delhi, Delaware county, to bring up the proceedings had in May, 1874, to cancel, vacate and annul the license of the relator

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taken by him 28th October, 1873, authorizing him to sell ale or beer, in pursuance of section 4, of chapter 850, of Laws of 1869. The relator received a license authorizing him to sell ale or. beer after the passage of chapter 549, of the Laws of 1873, amending the Laws of 1857. It appears by the return, that on the 4th of May, 1874, a complaint signed by four residents of the said village, was presente.d to the board of commissioners of excise and filed. The board immediately issued a summons, requiring Beller to show cause why his license should not be revoked, canceled and annulled, in accordance with section 8, of chapter 549 of Laws of 1873. The summons being personally served on Beller, he, on the same day, appeared before the board and objected to the complaint, on the ground that it was indefinite and uncertain; that it did not point out or specify, with sufficient accuracy and certainty, the date and manner of violation of the license, to enable the party complained of, to properly and safely answer the complaint. These objections, after hearing counsel, were by the board then and there overruled. The defendant excepted, and then denied the complaint, and set up his license, issued by the board, authorizing him to sell ale or beer, and that he was protected by the license. The license was then presented to the board by the relator, and was examined and read. By consent of parties, the further hearing was adjourned to May 18, 1874, at nine o’clock a. m., and subpoenas issued to each party. The board met, pursuant to adjournment, on the 18th of May, 1874. After several objections to the right of the board to proceed were heard and overruled, Alexander Shaw was examined for complainants, and Beller “ objected to the board administering oaths to complainants’ witnesses.” The objection was overruled, and the chairman administered oaths to all witnesses. Several witnesses were examined, and they stated that the relator had sold strong and spirituous liquors at his place of business, on divers days between the date of the license and the day of the complaint. The relator did not, upon such inquiry, give any evidence, nor deny the evidence and statements made by the witnesses inquired of by the complainants before said board. The board, after the close of the arguments of the respective counsel of the board and the relator, determined to revoke cancel -and annul the said license. The board adjourned to the nineteenth of May, at which time it re-assembled and made an

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order canceling and revoking the license, and served the same personally upon the relator, and demanded the surrender of his said license, with which demand he refused to comply.

Youmams dc Niles, for the relator.

Samuel Yeomans, for the defendant.

The relator was not entitled to a trial by juiy. The statute under which he received his license, expressly authorizes and empowers the board of excise, when “ they shall become satisfied that any such person or persons has or have violated any of the provisions of the act, to revoke, cancel and annul the license of such persons.” The license was merely a permit given to the relator, under which he was authorized to sell ale or beer. It did not give him any property or vested right to enjoy the privileges thereof beyond the time when the board should become satisfied that he had violated any of the provisions of the acts of 1857,1869, 1870 or 1873. The board had no power to inflict a penalty upon him for violation of the law. They were simply authorized to revoke the permit theretofore given him in respect to ale or beer.^[5] In The Metropolitan Board of Excise v. Barrie,^[6] Judge Weight says: “ These licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. * * * * They form a portion of the internal police system of the State,” etc.

The board, in issuing licenses and in revoking them, are clothed with power to be exercised in their discretion. In Ex parte Persons,^[3] it was held that their discretion was full and ample, “ and one the court will in no case attempt to control.”

In People v. Norton,^[4] Willard, J., says: “ Justices, in granting, or refusing licenses, under the excise law, do not act solely as

‡ ‡ 1 Hill, 655 .

§ § 7 Barb., 477 .

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judicial officers. They have indeed a discretion to exercise which this court will not control by mandamus.”

In People v. Jones,^[5] Allen, J., says: “ The commissioners cannot be coerced in the exercise of their discretion by mandamus or otherwise, and for a mere mistake are not liable either civilly or criminally.”

The relator objected to the power of the board to administer oaths to the witnesses produced, and the objection was overruled and the relator excepted. But he did not himself ask to have any witness examined, either with or without oaths, in his behalf. The statements made by the complainant and by the witnesses produced, were before the board, and were to the effect that the relator had violated the provisions of the law under which the license was issued, and the board upon this became satisfied that the relator had violated the provisions of the act, and therefore revoked their license to him. If it be conceded that the board had no power to administer oaths, still this information was before them, and satisfied them that the relator had violated the law, and it therefore became their duty to revoke his license. The counsel for the relator referred us to Berrien v. Westervelt,^[6] where proceedings in replevin were set aside because the commissioners had no power to take an affidavit. There the statute forbade the issuing of a writ without an affidavit, and Justice Sutherland very properly remarked: “ the compliance with the statute is in the nature of a condition precedent.” The statute now under consideration simply permits, upon demand of the board or the party complained of, the board to call in witnesses, and have them examined under oath. Confessedly, it was competent for the relator to waive, as he did, his right to have witnesses examined, as it is well settled that a party may waive a statutory provision made for his benefit. The board being satisfied, to exercise their discretion in respect to revoking licenses, that a violation of the law had taken place, were not required to take the formal proceedings and full evidence which might be proper and necessary to reach a judicial conclusion, which should work a deprivation of property or produce and interference with life or liberty. They were simply to become satisfied in their judgment, and then this right, as well as duty, to revoke

* 54 Barb., 315 .

† † 12 Wend., 194 .

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the permit which had been given the relator, was clear. They were simply recalling the permit which the relator had obtained and held from the board, and which he accepted upon the condition that the board might, in their discretion, revoke. As before seen by the authorities cited, the giving of such a license depended upon the discretion of the board; so, too, the revocation was authorized the moment they became satisfied that the relator had been a violater of the law under which he took the permit. We also think the power to administer oaths may be fairly implied from the section authorizing them to examine witnesses under oath. The. proceedings must be affirmed, with costs.

Present—-Bocees, P. J., Hardin and Countryman, JJ.

Proceedings affirmed, with costs.

Footnotes

* Section 4, Laws of 1873; 3 Kernan, 378; The M. Board v. Barrie, 34 N. Y., 657 .
† † 34 N. Y., 657 -667.