
    (4 Misc. Rep. 330.)
    PEOPLE ex rel. HOPKINS v. BOARD OF COM’RS OF EXCISE OF TOWN OF CLAVERACK. PEOPLE ex rel. PALMER v. SAME. PEOPLE ex rel. KINNEY v. SAME. PEOPLE ex rel. DEXHEIMER v. SAME. PEOPLE ex rel. REYNOLDS v. SAME. PEOPLE ex rel. DANFORTH v. SAME. PEOPLE ex rel. TREBILCOX v. SAME.
    (Columbia County Court.
    July, 1893.)
    1. Refusal of Liquor License—Certiorari to Review—Return.
    Laws 1893, c. 481, provides that on certiorari to review the refusal of a liquor license by the excise board the return to the writ shall “include copies of all papers on which its [the board’s] action was based, and a statement of its reasons for refusing” the license. Held, that a statement in a return that the board had “refused all applications,” and had refused the application in question “after consideration and deliberation on the merits,” was not authorized by the statute, and would not be considered.
    2. Same—Arbitrary Refusal.
    Refusal by the excise commissioners to grant an hotel liquor license, (1) because they were elected as “no license” commissioners, (2) because they believe they are properly representing their constituents in refusing a license in any place in the town, and (3) because an hotel for the sale of liquor is not a necessity in the town, is “arbitrary” and “without good or valid reasons,” within Laws 1893, c. 481, providing for a review of the refusal of a license.
    Separate applications for certiorari by Thomas Hopkins, Charles Palmer, John Kinney, Frederick W. Dexheimer, James A. Reynolds, George H. Danforth, and Samuel Trebilcox to review refusal of the board of commissioners of excise of the town of Claverack to grant licenses to relators to sell intoxicating liquors.
    Reversed.
    Duntz & Aldcroftt and Samuel B. Coffin, for relators.
    Brownell & Cochrane, for defendants.
   CADY, J.

The questions presented in these several cases arise upon the return to a writ of certiorari issued in each upon the application of the relators, and addressed to the board of commissioners of excise of the town of Claverack. The writs were allowed under the provisions of chapter 481 of the Laws of 1893, which amends paragraph 24 of chapter 401 of the Laws of 1892. They were argued as one case, and the facts in each are the same. The return to the writ is signed by Thomas Wilson and Charles 3ST. Harder, who described themselves as “a majority of the board of excise of the town of Claverack, in the county of Columbia.” It contains the following statement:

“We do hereby certify and return to the Columbia county court that we have annexed thereto and filed herewith a transcript certified by us of the proceedings and a statement of the other matters specified in and required by-said writ, including copies of all papers upon which an action is based, and a statement of our reasons for refusing to grant such applications.”

Then they say:

“We have refused all applications to sell intoxicating liquors as a beverage. We further return that we have refused to grant the license in this case in the exercise of the discretion vested in us, after consideration and deliberation on the merits."

An important query is presented at this point: Can the statements in the two sentences last quoted be considered at all upon this hearing? They do not appear to be any part of the record ordered to be returned, nor any paper, resolution, or statement a return of which is provided for in said statute. They are rather in the way of comments or glosses upon the action of the board of excise commissioners, or of explanation of such action. The legislature evidently intended to have the writ bring lip on its return a record of the official acts and statements attending the rejection of the application, rather than anything in the nature of subsequent exegesis. The return signed by Hr. Wilson and Mr. Harder is dated June 27, 1893. The record of the meeting at which the relator’s application was denied shows that it was held on the 21st day of June, 1893, and the statements under consideration form no part of that record. The rule of law is that:

“If the return contains matters inserted by way of explanation or otherwise, besides what is ordered to be returned, such matter is irrelevant, and is not to be regarded, and the same is true of matters asserted merely as matters of belief or information and not as a fact.” Fiero, Spec. Proe. 128, and cases cited.

Hnder this rule the allegation of the commissioners, Wilson and Harder, to the effect that “we have refused to grant the license in this case in the exercise of the discretion vested in us, after consideration and deliberation on the merits,” must be eliminated, as not containing any matter to be considered here. The court must determine from the record brought before it how and why the board of excise commissioners rejected the application, and whether or not it considered the application upon its merits. It is quite possible that the allegation above referred to was inserted in the return to accord with a suggestion contained in the opinion of Mr. Justice Herrick at the Albany special term, June 9, 1893, in People v. Bennett, 4 Misc. Rep. 10, 23 N. Y. Supp. 695. I suppose that “the merits” in the case of an application for a license to a board of excise commissioners are all those elements of the matter upon which the board can lawfully exercise the powers and the discretion vested in it; or, in other words, the facts and the rules of law existing in favor of and against the granting of the license and governing the decision in each particular case. Inquiry must first be made and answered by the board whether the applicant possesses the statutory qualifications for a license. ¡Next, the form and sufficiency of his bond must be determined. In the third place, if these preliminary issues are resolved in favor of the applicant, is to be considered the propriety of granting a license for the particular building or place where it is proposed to sell liquor. It is, of course, not suggested that the statute provides for this order of action, but only that such an order seems to be logical. That all these matters must be considered and acted upon by the board, does, however, in my view of the law, seem to be necessary. Without passing upon the question whether a person may or may not have an absolute right to a license under any circumstances, it may be safely said that an applicant has a right to have his application disposed of in accordance with the law. The consequence would seem to follow, necessarily, that if his application has not been so disposed of, and has been denied, it has been “arbitrarily denied,” or denied without good or valid reasons therefor. Chapter 481, Laws 1893. The discretion possessed by a board of excise commissioners is not to be exercised arbitrarily nor whimsically, but duly and lawfully, and within the range of the statute; for the board is a purely statutory creature.

Bearing these considerations ^in mind, an examination of the record will be proper. The papers upon which the writ was allowed affirmatively set forth the fact that the applicant possessed the requisite statutory qualifications, and that the building in which he proposed to conduct the business was not obnoxious to any statutory provisions. These allegations are not controverted by the return in such manner as to prevent their consideration; and, under the provisions of section 2138 of the Code of Civil Procedure, the case is to be heard “upon the writ and return, and the papers upon which the writ was granted.” The record sent up on the return shows that the relator “presented an application for an hotel license in said town, accompanied by a necessary bond. Motion made and seconded that his application for an hotel license be denied. Motion carried, Wilson and Harder voting in the affirmative, and Miller in the negative. Messrs Wilson and Harder assigning their reasons, which were duly filed as follows:

“We, the undersigned, constituting a majority of the board of excise of the town of Claverack, N. Y., do make and file the following statement of our reasons for refusing to grant any and all applications which may be made to us for a license to sell intoxicating liquors in said town: (1) We were elected as no license excise commissioners by the people of said town of Claverack, and with the understanding that we would vote against the application of any one to sell intoxicating liquors as a beverage. (2) We are convinced that we properly represent the people who elected us when we refuse to grant a license for any place in said town of Claverack, N. Y. (3) We are convinced that an hotel for the sale of intoxicating liquors as a beverage is not a necessity in said town of Claverack, N. Y. Thomas Wilson,
“Chas. N. Harder,
“Excise Commissioners of the Town of Claverack, N. Y.
“Dated June 21, 1893.”

The fair inference from the face of this part of the record—and it is substantially all that is returned—is that, before acting on the application, the majority of the board had determined to grant no licenses in the town for the three reasons stated. That this is the fact appears from schedule B, annexed to the petition of the relator for the writ, which is pot controverted by the return. Thus the question is squarely presented whether the board had power, under the statute, to adopt a resolution that no license shall be granted for any or all three of the group of reasons stated, before the making and consideration of an application, and to then reject all applications indiscriininately by reason of the prior resolve. In my opinion, such a course is arbitrary, and such a reason is arbitrary. The course is arbitrary, because no statute provides for it, and because it involves a prejudging of each application, and because it applies a fixed and unbending standard of denial to each application when the applicant is entitled to have his case fairly heard and disposed of upon its merits. The reason is arbitrary, because no statute provides for it, and because it is not based upon any fact or circumstance going to make up the merits of any particular aplication, and because it exceeds in its scope and differs in its nature from any power which the legislature conferred in enacting the statute that created the excise commissioners and the excise system. The reasons stated in the return might be very appropriately acted upon by a legislative body having constitutional authority to pass an absolutely prohibitive statute, because they are all excellent reasons for prohibition. Instead of acting judicially upon each application, the board assumed legislative functions, and in effect enacted a rule that no licenses should be issued in the town. Such action seems to me to be arbitrary and in excess of the power possessed by the body. Commissioners of excise were not created by the legislature either to grant all licenses applied for or to reject all licenses applied for, but, among other things,- to hear and consider and lawfully adjudicate upon such applications as might be made for licenses, acting in each case upon its merits as disassociated from the merits of other cases. The powers of the boards over this subject are judicial, and not legislative. My views in this regard differ somewhat from those stated in the opinion in People v. Commissioners of Excise of the Town of Montgomery, Orange County, but I think that they accord with those of Mr. Justice Herrick in People v. Bennett, 4 Misc. Rep. 10, 23 N. Y. Supp. 695, where he says:

“I am not prepared to say that commissioners of excise may not, in tin-exercise of their discretion, limit the number of licenses granted by them, and refuse to issue a license, because there are already a sufficient number of places and persons licensed to sell liquor in their town, and therefore decide that an additional license is not needed.”

The statute expressly gives the commissioners power to grant or deny particular applications. I fail to see wherein it gives them power to enact or adopt an absolutely prohibitive rule or resolution, and to thereupon reject applications because of that rule. The first two reasons given by the board "for refusing to grant any and all applications which may be made” for a license are clearly arbitrary and insufficient, both upon principle and upon the authority of People v. Symonds, 4 Misc. Rep. 6, 23 N. Y. Supp. 689. The third reason, viz.: “(3) We are convinced that an hotel for the sale of intoxicating liquors as a beverage is not a necessity in said town,”—is employed in these cases as a reason for the adoption of a rule or resolution to deny all applications. I regard it as illegal and arbitrary, as so used. It is no doubt entirely competent for a board of excise to deny an application for a license for a particular house or building on the ground that an hotel is not necessary at that point, because there is a sufficient number of licensed places in the vicinity or in the town, or because for some other good reason it is not needed or ought not to exist. Such a decision would be the result of judicial action upon the particular application, which is the character of the action of the board as provided for by the statute, and it is not legislative. It may be urged in answer to this rea saning that the distinction raised is one of form, and not of substance, and that the result that was reached by the defendants here when they decided to grant no licenses in the town of Claverack may be attained as a practical result by a series of denials of particular applications. To this the fair rejoinder is that in cases of this nature it is difficult to say when substance ends and form begins, and that form and method in statutory proceedings are very often matters of great substance. The keynote of this decision is that, while the applicant may well be not entitled to a license as a matter of right, he is as a matter of right entitled to a lawful disposition of his application upon its merits. Such a disposition has not, in my judgment, been made of any of these applications. I do not hold that each or any of these applicants is entitled to a license, for I do not propose to invade the province of the discretion of the board of excise. That province exists under the law, and must be held inviolate. In the language of Mr. Justice Parker in People v. Symonds, 4 Misc. Rep. 9, 23 N. Y. Supp. 689, the action of the board of excise, “being based on a misapprehension of the law, amounted to legal error, which is properly reviewahle by certiorari, under the statute referred to.” As it appears from the returns that the board of excise did not consider the applications upon their merits, as it was their duty to do, the matter in each case must be sent back to them for their consideration and determination. Each relator shall have his costs of the proceeding to be allowed and fixed. Let orders be entered accordingly. 
      
       For the terms of Laws 1893, c. 481, see 23 N. Y. Supp. 691, note.
     