
    The People ex rel. Robert S. Jones v. Abram Bennett et al.
    
    
      (Supreme Court, Special Term, Albany County,
    
    
      Filed June 9, 1893.)
    
    1. Excise—Right to license.
    No person has an absolute legal right to receive a license
    2. Same—Review of action of board of excise.
    Where the application for a license has been received and acted upon, and the discretion of the commissioners exercised whether they will or will not grant a license, and if in the exercise of that discretion they have not proceeded upon illegal grounds or principles, the conclusion at which they arrive upon such exercise of their discretion will not he disturbed by the court.
    3. Same—Power of court.
    The court itself is not vested with the powers of excise commissioners, and will not determine whether a license should or should not be granted.
    4. Same—Refusal by board.
    The return by a board of excise to a certiorari under chap. 481, Laws 1893, stated that a majority of the board were elected upon a no license ticket and with the express understanding that they would not grant licenses; but also stated that they considered the application on the merits, and refused to grant it for the reason, among others, “ that a license is not needed in that hotel, and that the sale of intoxicating liquors thereat would result injuriously to the communiiy-” Held, that as the return was sus-., ceptible of the construction that the commissioners were of the opinion that a license was not needed for that particular hotel because a sufficient number of places had already been licensed in that town, and for that reason refused to grant one, such consideration must be given to it; that there was, therefore, a legal exercise of their discretion, and their determination could not he interfered with.
    Certiorari to review the action of the board of excise of the town of Rockland, Sullivan county.
    
      J. A. Maybee, for relator; W. Martin Jones, for resp’ts.
   ¡Herrick, J.—This

This is a proceeding by certiorari under chapter 481, of the Laws of 1893, to review the action of the defendants in refusing to grant the relator a license to sell intoxicating liquors.

Decisions in proceedings of this kind have recently been rendered at several special terms in this state, and I presume the questions arising will be reviewed in some of the appellate courts, and I, therefore, do not deem it necessary to enter into a discussion of all the questions involved.

The decisions already rendered that have come to my notice, as I understand them, have concurred in holding that no person has an absolute legal right to receive a líbense.

That the granting or withholding of a license is within the discretion of the commissioners of excise.

That where the application for a license has been received and acted upon, and the discretion of the commissioners exercised, whether they will or will not grant a license, and if in the exercise of that discretion they have not proceeded upon illegal grounds, or principles, the conclusion at which they arrive upon such exercise of their discretion will not be disturbed by the court.

That the court itself is not vested with the powers of excise commissioners, and will not determine whether a license should or should not be granted. I concur in these conclusions.

In a case recently decided by Judge Parker, known as the Shandaken case, the commissioners refused to grant a license upon the ground “ that the majority of said board was elected by the people of the town for the purpose of refusing to grant licenses.”

And it was further set forth in the return made by them, “ 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 so called local option.”

In that case the excise commissioners did not exercise their discretion, did not consider the application of the relator upon the merits, and the learned justice, holding that there was on local option law, and the acts of the commissioners being based upon a misapprehension of law amounted to legal error, which could be reviewed by certiorari, sent the application for the license back to the commissioners for their consideration and determination.

In this case, while the majority of the defendants claim that they were elected upon a no license ticket, as did the defendants in the Shandaken case, and with the express understanding that they would not grant licenses for the sale of intoxicating liquors, yet they recognized the fact that they have the power vested in them to grant or withhold licenses, notwithstanding their election as so called no license commissioners, arid in the return to the certiorari they assert that they considered the application upon its merits, and refused to grant it for one reason, among others, “that a license is not needed in that hotel, and that the sale of intoxicating liquors thereat would result injuriously to the community.”

This reason that was assigned by them, taken in connection with that other portion of the return in which they set forth the issue upon which they were elected, and the evils they believe to flow from the liquor traffic, render this portion of the return a little indefinite as to its meaning; that is, as to whether they did not mean that a license was not needed at all, and the sale of intoxicating liquors at any place would result injuriously to the community, which taken in connection with the portion of the return referred to, is probably their meaning, or whether they mean by it a simple limitation upon the number of licenses granted in the town, and an expression of their opinion that a license is not needed for that particular hotel.

Just exactly what is meant could perhaps have been ascertained by a further and additional return, but none was asked, and that construction, I apprehend, must be given to it, if there is room for such a construction, which will constitute a legal reason for refusing to grant a license, or rather constitute a legal exercise of their discretion.

I am not prepared to say that commissioners of excise may not in the exercse 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 return is susceptible of the latter construction.

The writ of certiorari is quashed, but inasmuch as the proceedings were commenced before any decisions had been made under the act in question and the law was so recently passed, and so little understood, it is quashed without costs.  