
    In the Matter of Reuben Kemp, Appellant, v. William S. Hults, as Commissioner of Motor Vehicles, Respondent.
    Argued February 15, 1966;
    decided March 31, 1966.
    
      
      Emanuel Redfield for appellant.
    I. Petitioner has been deprived of his privileges and immunities as a citizen of the United States under the Constitution of the United States. (Williams v. Fears, 179 U. S. 270; Edwards v. California, 314 U. S. 160; Matter of Wignall v. Fletcher, 303 N. Y. 435; Matter of Moore v. Macduff, 309 N. Y. 35; Bailey v. Alabama, 219 U. S. 219; Matter of Davis v. Hults, 24 Misc 2d 954; Matter of Brown v. Murphy, 34 Misc 2d 151.) II. Petitioner has been deprived of due process under the State and United States Constitutions. (Wieman v. Updegraff, 344 U. S. 183; Schware v. Board of Bar Examiners, 353 U. S. 232; Reitz v. Mealey, 314 U. S. 33; Kent v. Dulles, 357 U. S. 116.) III. Respondent has placed an unreasonable burden on interstate commerce.
    
      Louis J. Lefkowitz, Attorney-General (Michael H. Rauch and Samuel A. Hirshowitz of counsel), for respondent.
    I. The Commissioner’s determination that appellant, an applicant convicted recently of murder and assault, is not presently fit to operate a motor vehicle was within the permissible range of the Commissioner’s statutory discretion. Indeed, the licensing statute expressly reposes such authority in the Commissioner. (Matter of Davis v. Hults, 24 Misc 2d 954; Matter of Bernola v. Fletcher, 280 App. Div. 870; Matter of Funaro v. Hults, 16 A D 2d 654; Matter of Robbins v. State Liq. Auth., 24 A D 2d 441; Matter of Loeb v. Adams, 1 A D 2d 662, 1 N Y 2d 894; Matter of Arroyo v. Moss, 269 App. Div. 824, 295 N. Y. 754; Matter of De Stasio v. Fielding, 295 N. Y. 903; Matter of Sabel v. Hults, 9 N Y 2d 987; Matter of College Point Wine & Liqs. v. O’Connell, 296 N. Y. 752; Matter of Oseroff v. Cantor, 16 N Y 2d 924; Matter of Brown v. Murphy, 34 Misc 2d 151; Matter of Fink v. Cole, 1 N Y 2d 48; Matter of Elite Dairy Prods. v. Ten Eyck, 271 N. Y. 488.) II. The Commissioner’s determination and the statutes authorizing him to deny a license for lack of demonstrated fitness are a valid exercise of the police power of the State of New York and appellant has failed to demonstrate that, as applied to him, the statutes violate any provision of the Constitution of the United States. (People v. Duell, 1 N Y 2d 132; Shuba v. Greendonner, 271 N. Y. 189; 442; Matter of Weinrib v. Beier, 294 N. Y. 628; People v. Hawker, 152 N. Y. 234; Matter of Harlem Check Cashing Corp. v. Bell, 296 N. Y. 15; De Veau v. Braisted, 5 N Y 2d 236, 363 U. S. 144, 364 U. S. 856; Linehan v. Waterfront Comm., 347 U. S. 439, 347 U. S. 994; Schware v. Board of Bar Examiners, 353 U. S. 232; Wieman v. Updegraff, 344 U. S. 183; Clason v. Indiana, 306 U. S. 439; California v. Zook, 336 U. S. 725: Edwards v. California, 314 U. S. 160; Williams v. Fears, 179 U. S. 270; Kent v. Dulles, 375 U. S. 116; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; Wasmuth v. Allen, 14 N Y 2d 391; Matter of Van Berkel v. Power, 16 N Y 2d 37.) III. The petition fails to allege that the Commissioner abused his discretion or acted arbitrarily or capriciously and, accordingly, it is fatally defective. Moreover, the constitutionality of the statutes cannot properly be raised by proceedings under CPLR article 78. (Matter of Graffenburg Dairy v. Du Mond, 278 App. Div. 428; Matter of Brown v. Murphy, 34 Misc 2d 151; Matter of Rockwell v. Morris, 12 A D 2d 272, 10 N Y 2d 721; Matter of Supreme Ind. Catering Corp. v. Fuerst, 30 Misc 2d 394; Matter of Sun Oil Co. v. Waldinger, 14 Misc 2d 852; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508.)
   Memorandum.

The order of the Appellate Division should be affirmed, without costs. The record before us demonstrates that, on his application for an operator’s license, the petitioner did not disclose his entire record of convictions, i.e., he merely divulged his convictions for murder and assault, omitting those for burglary and trespassing. We hold this concealment, although it is not directly related to petitioner’s fitness to drive an automobile, is a legitimate ground upon which the Commissioner may exercise his broad statutory powers and deny the petitioner an operator’s license, without violating any of the petitioner’s rights under the Federal Constitution.

Even if we were to consider the question whether the Commissioner abused his discretion in denying this application, we would hold that there was no abuse of discretion (see Matter of Funaro v. Hults, 16 A D 2d 654). However, this is not to say that the Commissioner may deny petitioner a license for an indeterminate period of time merely because of the two felonies and the false statements on this application and on a previous one. The time may come when a denial by the Commissioner may be classified as arbitrary; bnt, under the facts before us now, there was no such abuse of discretion.

Keating, J. (concurring).

I agree that the order of the Appellate Division should be affirmed, without costs.

The Commissioner has ample power to require information concerning an applicant’s criminal background since, in my view, criminal conduct is reasonably related to an applicant’s “ fitness ” to operate a motor vehicle. Fitness includes conduct which indicates a general regard for the law and for the safety of others. Petitioner’s criminal record discloses a 1940 conviction for burglary, a 1947 conviction for murder, and a 1961 conviction for assault. These substantive crimes are sufficient justification for denying petitioner’s application for an operator’s license at the present time.

In addition, petitioner’s concealment of his conviction for murder on his prior application for a chauffeur’s license and his concealment of his burglary conviction on this application justified the Commissioner’s exercise of discretion in denying the present application for an operator’s license.

Chief Judge Desmond, Fuld and Van Voobhis, JJ. (dissenting).

We dissent and vote to reverse and to grant the relief asked by petitioner on these grounds: first, that section 501 (subd. 1, par. a) of the Vehicle and Traffic Law does not authorize the Commissioner to investigate an applicant’s character or morals but only his ‘ ‘ fitness ’ ’, i.e., his ability to drive a car; second, that, as construed by the court, the statute is unconstitutional as a delegation of legislative power without standards (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184); and third, that the statute, as now construed and applied, violates the “privileges or immunities of citizens” provision of the Fourteenth Amendment to the Federal Constitution since it interferes with the common right to use the public highways (see Williams v. Fears, 179 U. S. 270, 274).

Judges Burke, Sgeledpi and Be-rgan concur in Memorandum ; Judge Keating concurs in a separate memorandum; Chief Judge Desmond and Judges Fuld and Van Voobhis dissent and vote to reverse in a separate memorandum.

Order affirmed.  