
    In the Matter of the Application of John H. Abrams, Jr., Etc., App’lt, v. The Board of Town Auditors of the Town of Hempstead, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    1. Mandamus—When writ issued.
    When a subordinate body is vested with power to determine a question either of fact or law, the duty is judicial, and it cannot be compelled by mandamus to decide in a particular way, however clearly it be made to appear what the decision ought to be. A mandamus cannot properly be made to do either a prohibitory or reviewing duty; its purpose is purely mandatory.
    2. License to plant oysters in Hempstead and Jamaica Bays—Laws
    1871, chap. 639.
    The prohibition in Laws 1871, chapter 639 (which regulates the licensing of the oyster grounds in Hempstead and Jamaica bays), against granting a license for grounds already planted, means legally planted. The town cannot be deprived of the right to license, by a trespasser planting oysters.
    Appeal from an order denying an application for a writ of mandamus.
    
      Cornell, Secor & Page, for app’lt; A. N. Weller, for resp’t.
   Pratt, J.

We think that the application for a mandamus was properly denied. The general rule is that “when a subordinate body is vested with power to determine a question either of fact or law, the duty is judicial, and it cannot be compelled by mandamus to decide in a particular way, however clearly it be made to appear what the decision ought to be. Francis v. The Common Council, 78 N. Y., 33.

Here the board has not refused to exercise its functions ; on the contrary, it has acted upon the matter at appellant’s request. The decision did not suit appellant, and he is now seeking to compel the board by a mandamus to decide in a different way. It is virtually an attempt to review the determination of a subordinate tribunal by the writ of mandamus.

A mandamus cannot properly be made to do either a prohibitory or reviewing duty; its purpose is purely mandatory. 16 Hun, 219; 76 N. Y., 326.

But aside from any technical question the decision of the board was right upon the merits.

The Session Laws of 1871, chapter 639, regulate the licensing of the oyster grounds in Hempstead and Jamaica bays.

It confers upon the board of audit of the respective towns .the right and duty of licensing the grounds to inhabitants of the town, but allows but three acres to each inhabitant. It must appear to the satisfaction of the board when an application is made that the ground contains no planted bed of opsters, or contains no bed planted by any person other than the applicant. Chapter 384 of the Laws of 1879, forbids the planting of oysters in those bays without a license and makes it a misdemeanor for any one to plant oysters without a license.

The plaintiff claims that because some three years ago he had a license of these grounds for one year that the board would have no right to license the ground to any one else.

This cannot be sound, because in that case no person would ever take out but one license. The town would be remediless for he could plant oysters and use the grounds ad infinitum.

The prohibition in statute against granting a license for grounds already planted means land legally planted. The town cannot be deprived of the right to license, by a trespasser planting oysters. To hold otherwise would render the law nugatory.

It fairly appeared before the board that the relator was a willful delinquent who had occupied the grounds for three years without paying the license fee, and that he had no intention of taking out a license. It was not the case of a party planting by mistake or in good faith intending to apply for a license.

The board was therefore justified in refusing a license to the relator.

In no other way can effect be given to the statute, except to hold that the board may license any ground for which no license has been granted or applied for unless it is already legally planted.

Order affirmed with costs and disbursements.

Barnard, P, J., and Dykman, J., concur.  