
    The People ex rel. Richard W. Welling, Resp’t, v. Alexander Meakim et al., Commissioners of Excise, App’lts.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 16, 1890.)
    
    1. Excise—Mandamus.
    
      Mandamus will lie to compel the board of excise commissioners to determine a complaint for violation of the excise law. The writ does not interfere with the exercise of the discretion of the board, but simply requires it to exercise such discretion.
    '3. Same.
    Where the board unreasonably delay action on a complaint the complainant is entitled to a mandamus directing them to proceed.
    3. Same—Revocation op license.
    The duty of the board is not satisfied by an examination of the witnesses on both sides. The statute requires that after hearing all the testimony it shall be considered by the board and a decision rendered by a vote of the commissioners whether the accused person has or has not violated any of the provisions of the act.
    
      4. Same—When peremptory writ may be granted.
    Relator’s affidavit alleged that respondents unreasonably delayed, neglected and refused to decide or take action on deponent’s complaint. Respondents did not deny this, but denied that they are unwilling or had refused to revoke the license as alleged, and alleged that they are entirely willing to decide the matter. Held, that the charge made was admitted (by failure to specifically deny), and that a peremptory writ was properly granted.
    Appeal from order granting motion for mandamus.
    
    
      Edward Browne, for app’lts; L. L. Delafield, for resp’t.
    
      
       Affirming 30 N. Y. State Rep., 397.
    
   Van Brunt, P. J.

This is an appeal from an order granting a peremptory mandamus against the commissioners of excise of this county, directing them to decide a certain complaint presented to them by the relator against one Scheuplein.

The relator presented this complaint on the 27th of last January. It was for keeping open a saloon upon election day in violation of the statute.

Notice was given to Scheuplein, and the matter was set down for hearing upon the 12th of the following February. Upon the latter date the board adjourned the hearing, although the relator was ready to proceed, to the 21st of February, when it was again adjourned (the relator being still prepared to proceed) to the 28th •of February. On the 28th of February the hearing took place. Two witnesses testified that Scheupleiris saloon, which was but 229 feet from a neighboring polling place, was open on the last general election day, and that beer was then and there sold. This was not denied, though Scheuplein was examined and testified that he knew nothing about this violation of law, and that he left orders not to sell anything over the bar that day. Upon these very simple facts the case was closed and left with the "board for decision. Subsequently the commissioners were repeatedly called upon for a decision, but without avail; and as late as the 8th of April they informed a person who applied to them on behalf of the City Reform Club, of which the relator is treasurer, that “there was no decision.”

Upon this state of facts the mandamus was granted simply to ■set the board in motion. The appeal was submitted, and the first point which we find in the appellant’s brief is that “the power to revoke licenses is a purely discretionary power lodged in the commissioners of excise, and, therefore, mandamus will not lie to compel them to exercise, or to refuse to exercise, such discretion.”

This point, although elaborately considered and enforced by the citation of numerous authorities, seems to us to have no bearing upon the real question presented by this appeal, and for the sufficient reason that there was no attempt on the part of the special term to interfere with the discretion or judgment of the board.

The mandamus required the board to exercise its discretion and judgment, and required nothing else. The rules on this subject are well settled. Where the duty is peremptory or absolute, the writ may require the doing of a specific act. Where however official discretion and judgment are involved, the writ only commands the board to act. It will not direct the board to act in a specific manner nor attempt to control its judgment. Even in the case of inferior courts, mandamus lies to compel them to proceed with the trial of causes which they have delayed without sufficient reason, High on Extraordinary Remedies, § 250, and the author adds, § 251, citing numerous cases, that “the rule may now be regarded-as well established that mandamus lies in all cases to compel.ten. inferior court to proceed to the trial of a cause and to set it in motion where it has unreasonably delayed the proceedings or where its refusal to proceed amounts to a denial of justice.” See also §§ 147, 148; and 2 Black. Com., 111. The cases in this and other states are numerous where ministerial officers clothed with quasi-judicial powers have thus been set in motion although the court have scrupulously avoided interfering with the manner in which the discretionary duty should be performed.

The learned counsel for the appellant evidently misapprehends the language of Emott, J. in People ex rel. Belden v. Contracting Board, 27 N. Y., 378, (quoted and followed in People ex rel. Duff v. Booth, 49 Barb., 31, and People ex rel. Livingston v. Taylor, 1 Abb., N. S., 200. The learned judge there observed that to entitle the relator to a mandamus “ there must be a. legal right not merely to a decision in respect to the thing sought but to the thing itself.”

That language had reference to a case where thqmandamus was granted to compel the thing sought, not merely to compel a decision. Plainly, what was meant was that the mere right to a decision did not involve the right to a decision. in ■ a particular way. The language does not convey the idea that where there is a right to a decision of some kind a mandamus will not. lie to compel such decision. Such a doctrine would be contrary to the entire current of authority in this country and in England.

The appellant’s second point is that no right existed in the relator, either individually or as a citizen, to a judicial determination of any question by the commissioners of excise. This proposition overlooks the fact that it is a public duty which is sought to be here enforced, and that, as was observed by Mr. Justice Daniels in People ex rel. Boltzer v. Daley, 37 Hun, 461, “ all citizens are equally concerned in securing its performance ” (see the casés and treatises cited in that opinion). It also overlooks the fact that under the statute the board is required to act “ upon the complaint of any resident ” of the city, and that the present relator, as such-resident, was the complainant in the case charged to have been unreasonably delayed. The precise point was decided by Mr. Justice Lewis in the People ex rel. Sickles v. Becker, 3 N. Y. State Rep., 202, and we concur in his conclusion on that head.

It is also ui’ged that the board was not bound to act upon the complaint further than to examine the witnesses on both sides; that is, if we understand the learned counsel, to hear the case and not decide it. This is a strange qxroposition, and if correct it would lead to a strange perversion of the legislative intent The act reads as follows:

“ The board of excise of any city, town or village, may, at any time, and upon the complaint of any resident of said city, town or village shall summon before them any person or persons licensed as aforesaid; and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act, or of the acts hereby amended, they shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do, and where necessary to enter upon the premises and take possession of and cancel such license. Upon an inquiry the said board, or the party complained of, may summon, and the said board may compel the attendance of witnesses before them, and examine them under oath.” laws 1870, chap. 175, § 8, as amended, Laws 1873, chap. 549, § 4.

Taking this literally the appellants contend that they are only bound to act when “ they shall have become satisfied ” that the accused person has violated the act, and that their non-action is proof conclusive that they have not become satisfied. The difficulty with this position, and it is not the only difficulty, is that the statute contemplates the satisfaction of the board and that the .absence of such satisfaction on the part of the board cannot be predicated of non-action. Otherwise the law could be evaded by the failure of the board to meet. Whether the board is satisfied or dissatisfied can only be known after a consideration of the case by the board, and the taking at a meeting thereof of the sense of its members. But the entire provision plainly contemplates a summary trial. People ex rel. Kimball v. Haughton, 41 Hun, 560; 4 N. Y. State Rep., 78; People v. Schewe, 29 Hun, 124; People v. Commissioners, 59 N. Y., 96.

Upon the complaint of the resident a summons must be issued and served upon the accused. The board or the accused may thereupon summon or compel the attendance of witnesses and •exánime them under oath; and the proceeding is styled an “ inquiry.” Such an inquiry must have a definite result. It would be the height of absurdity to go through all the machinery of a trial and then and there let the whole matter rest without any consideration by the board; the complaint being treated as thus fully disposed of and the case decided.

Such a construction would be as dangerous to the accused as it would be injurious to the public. The non-action of the board could be continuously and indefinitely held over the head of the accused. He would never know the day or the hour when the rod of affirmatively expressed satisfaction as to his guilt might be laid upon him. He would be completely in the power of the board and the grossest oppression personal or political might be practiced upon him. Upon the other hand, of what avail to the Seople would be the complaints of public-spirited citizens, resients of the city, seeking to enforce the law for the benefit of all, if such complaints are deemed to be legally passed upon by contemptuous silence?

In our judgment it was the plain intent of the legislature, as expressed in this act, that after hearing all the testimony the board as a board should consider such testimony, and thereupon decide, by a vote of the commissioners, whether the accused person has, or has not, violated any of the provisions of the act If such accused person has so violated any of the provisions of the act, the duty to revoke the license is imperative. In that case, to quote the language of the act, “ they shall revoke, cancel and annul the license.” And this duty cannot be evaded or the rights of the-people trifled with by non-action or silence.

In The People v. Board of Excise, 24 Hun, 195, the court held that the duty of revoking licenses was dependent upon the board’s becoming satisfied that “ the licensee had violated some provision of the statute.” The language used in that case involved the concession that the statute is mandatory, and casts upon the board the duty of revoking licenses when so satisfied of a violation of some provision of the statute.

In People ex rel. Beller v. Wright, 3 Hun, 309, Hardin, J., said : that the commissioners “ were simply to become satisfied in their judgment, and then this right as well as duty to revoke the permit which had been given to the relator was clear.”

And in People ex rel. Presmeyer v. Com’rs of Police, 59 N. Y., 96, Grover, J., says that the statute authorizes “ an inquiry into and determination of the question whether the party licensed continues to be a suitable and proper person to sell intoxicating liquors.” That there must be an affirmative “ determination ” has,, in fact, never been doubted.

The remaining question is as to whether a peremptory writ should have been granted. The appellants insist that an issue of fact on the question of unreasonable neglect was raised by the opposing affidavits, and that, consequently, the relator was only entitled to an alternative writ. It is undoubtedly true that a peremptory writ can issue only when, upon the conceded or undisputed facts, the right is dependent upon questions of law.

In the present case, none of the facts stated in the moving affidavits are denied, nor is new matter stated in justification, explanation or extenuation of the neglect of the board to consider this particular case. The commissioners deny that they have “ unreasonably delayed or neglected, and refused to decide or take any action upon the complaints so made as aforesaid by the City Reform Club,” referring not to this particular case of Scheuplein, but to numerous “ complaints for violation of the excise law made since the 1st of January, 1890, by the said City Reform Club against persons licensed in the city of New York.” As to this particular case the commissioneis were charged as. follows:

Tenth. That in violation of the provisions of law in such case made and provided, the said commissioners have unreasonably delayed, have wholly neglected, and have refused to decide or take any action upon the deponent’s said complaint.

The only answer to this charge is a denial of what is not directly averred, namely: “That the said board, or any of the commissioners thereof, are unwilling, or have refused to revoke the license of said Scheuplein, or any other licensee, for a violation of the law, as is alleged in said affidavit On the contrary, deponent alleges that the board of excise and the commissioners thereof are entirely willing to decide the said matter of Scheuplein and all other matters brought before them.”

This is clearly an admission of (by failure to specifically deny) the charge that the commissioners have “ unreasonably delayed, have wholly neglected, and have refused to decide or take any action upon ” the relator’s complaint. It is simply an expression of present willingness, at the time when the affidavit was verified, to decide the case. That is, of willingness under the stress of the proceedings. But even if the commissioners had denied the charge of unreasonable delay, they have not attempted to deny any of the facts' upon which that charge was predicated.

It appears without dispute that Scheuplein’s license was to expire on the 25th of April, 1890. Yet on the 8th of April- the case had not even been considered, although the commissioners had “often been requested so to do.” Thus it appears that when the case was closed and submitted for decision on the 28th'of February, the license had fifty-eight days to run Forty of these fifty-eight days were permitted to pass without the slightest action, and thus when these proceedings were commenced but eighteen days were left of the term of the license. Under such-circumstances a denial of unreasonable neglect would simply be a denial of the self-evident conclusion that there was gross neglect, and that the commissioners by their wilful non-action were permitting the accused to enjoy with impunity the remainder of his term.

We agree with the respondent that the facts fully justified the legal inference that the commissioners did not intend to take any action in the matter; that their delay was unreasonable as matter of law, and equivalent to a refusal to act.

In the People v. Supervisors of Richmond Co., 20 N. Y., 252, a judgment refusing a peremptory mandamus was reversed although the claim under consideration was “ not allowed nor disallowed by any formal action of the board.” Johnson, Oh. J., speaking of this claim said: “ It was laid aside without other action when the duty of the board was to proceed and act upon the claim * * * and we must hold their conduct to be equivalent to a rejection of the claim or else leave it in the power of the board of supervisors to postpone action in all cases till sicch time as they think fit to proceed.”

This case was followed in the People v Supervisors, 2 Keyes, 291, where Porter, J., observed that it was quite evident “from the inaction and delay of the board of supervisors, as well as from the grounds on which the application for a mandamus was resisted, that the board did not recognize its obligations to raise the moneys in question .under the act of 1860. There was, it is true, no formal refusal, but we think the court below was right in holding that under the circumstances disclosed in the affidavit the neglect of the board was equivalent to a refusal to comply with the requisition. See also Queen v. Vestrymen, 8 Ad. & Ell., 889, and Queen v. Commissioners, reported as note, id., 901.

The case of the People ex rel. Hammond v. Leonard, 74 N. Y., 445, does not conflict with these cases. There the mandamus was not merely to set the officer in motion, and to require him to act upon his judgment, hut it directed him to do the specific thing as to which he was clothed with discretion. But even there Church, C." J., said it was not a case of refusal to act at all: “ Delay is alleged, and this is explained by the defendant.”

Where the facts are undisputed, the question of what is a reasonable time is ordinarily one of law. Roth v. Buff. & State Line R. R. Co., 34 N. Y., 553, and cases there cited; Hedges v. H. R. R. Co., 49 id., 225 ; Davis v. Gwynne, 57 id., 677. Whether that doctrine is strictly applicable here need not be definitely decided, as not only are the facts undisputed, but also the conclusion directly charged against the commissioners with regard to this particular complaint.

Upon both the facts and the law we think the order appealed from was right, and should be affirmed, with costs.

Daniels and Brady, JJ., concur.  