
    The People ex rel. Charles Kruse, Resp’ts,v. Charles H. Woodman et al., as Commissioners of Excise of the City of New York, App’lts.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed June 4, 1888.)
    
    1. Excise law—Mandamus—Right to make application por wbit exist under Laws 1886, chap. 496.
    Provision is made by Laws 1886, chapter 496, for the granting of licenses for the sale of liquors in cities having over three hundred thousand inhabitants, and that where application made to the board of excise of any such city for that purpose shall be denied and license refused the applicant may apply to any court of record in the city, or to a judge thereof, for a writ of mandamus to review the action of sueh excise commissioners or board of excise, and that said board in its return to said writ shall include all evidence and all papers on which the action is based. Held, that the right to apply for a writ of mandamus was given by the act, and that the return of the evidence and papers as thereby directed would not interfere with the usual and orderly proceedings under the writ.
    2. Same—Alternative writ of—Code Civ. Pro., § 2083—Contested questions of fact must be tried by jury.
    It is provided by Code Civil Procedure, section 2083, that an issue of fact joined upon an alternative writ of mandamus must lie tried by jury. Held, that a judge to whom application for a writ has been made under the statute was by force of that provision obliged to order a trial by jury of contested questions of fact.
    3. Same—Functions of jury trial—Does not limit power of court under—Laws 1886, chap. 496.
    
      Held, that such trial by jury was simply to aid the court to a base of facts on whieh to govern its action, and did not interfere with its powers given by the statute to direct the granting of a license where the application therefor had, without good and valid reason, been arbitrarily rejected or denied.
   Larremore, C. J.

These are appeals by the excise commissioners of the city of New York from two orders, one dated February 6, 1888, which denied the defendants’ motion to quash and set aside an alternative writ of mandamus hereinbefore granted; the other, dated March 7, 1888, which framed an issue to be submitted to the jury. The relator had applied to such commissioners for a hotel license to sell intoxicating liquors upon the premises No. 38 East Fourteenth street, in the city of New York, and such application Was refused. Thereupon, said relator proceeding, under chapter 496 of the Laws of 1886, applied to this court, at a special term thereof, for a writ of mandamus to review the action of such commissioners, upon the ground that said application had been arbitrarily rejected.

The merits of this application were most carefully Weighed by Judge Bookstaver, at whose direction the original alternative writ was issued. The statute in question seems to contemplate a review, by means of the writ of mandamus, of the action of the commissioners by the court ora judge thereof. We have considered Judge Bookstaver’s discussion of the facts, and are of opinion that there was no abuse of discretion in the allowance of the writ; but that, on the contrary, for the reasons stated by him, the defendants were presumably guilty of an arbitrary refusal of the license, within the meaning of chapter 496 of the Laws of 1886.

The main argument raised here by the appellants goes to the question of the power of the court to issue a writ of mandamus under the facts alleged, and the further question of the power to order a jury trial of a contested question of fact incidentlly arising. But we cannot see how any real doubt can exist as to such power under the express language of the statute. The language is:

It shall and may be lawful for such person to apply to any court of record in said city, or to a judge thereof, for a writ of mandamus to review the action of such excise commissioners or board of excise, and said board in its return to said writ, shall include all evidence and all papers on which the action was based.”

Appellants’ contention is founded on the rather novel supposition that although the statute provided for a “writ of mandamus,” the legislature did not in reality mean what they said, but intended that a “writ of certiorari” or rather, something equivalent to the latter writ, under the name and style of the former writ, should issue. This claim is probably made because the act provides that the return to the writ shall include all evidence and all papers on which the action was based, the procuring of which is one of the chief functions of the writ of certiorari. But there is no ground here for speculation as to the true intent of the law makers, because the language itself is so plain and straightforward. It provides for the issuance of the writ of mandamus, and also adds one usual incident of the writ of certiorari. We cannot see how these provisions are in the least incompatible with each other, or how the usual and orderly proceedings under the writ of mandamus, as prescribed by the Code, will be in any manner in terferred with by compelling the respondents to include in their return all evidence and papers on which their official action in future should not be grafted upon the customary procedure under the writ of mandamus, or any cause why the clearly expressed intent of the legislature should not be put into practice by the courts.

These considerations in themselves also dispose of the objections raised by the appellants to the second order appealed from, which framed an issue of fact for trial by a jury. The legislature has decreed that the writ of mandamus shall issue. What such writ is, and the practice under it, are defined and prescribed by the Code of Civil Procedure. Section 2083 enacts that “An issue of fact joined upon an alternative writ of mandamus must be tried by a jury,” so that the judge at special term, having decided that the legislature meant “ mandamus ” when they said “mandamus,” had no option but to order a jury trial of the contested question of fact. We may add here that the judge correctly settled such order and limited the trial to a single issue, to wit:

“Were any person or persons, other than the relator Kruse, interested or to be interested in the business to be carried on at No. 238 East Fourteenth street, New York city, at the time of making his application for an hotel license herein, to authorize which the license sought by said Charles Kruse was to be used.”

This is the only actual controversy of fact. The other eleven proposed issues submitted by the counsel for the excise commissioners consist either of conclusions or matters of inference, motive or intent, or facts either conceded or of record, so that there can be no real dispute about them.

The point has been made that the ordering of a jury trial of issues of fact as is required under the writ of mandamus, violates the express provision of the statute under consideration, because it provides that “if the court or judge shall determine upon the hearing of said mandamus that the application has been arbitrarily rejected, or has been rejected without good or valid reasons therefor, the said court or judge may, by an order, direct the excise commissioners or board of excise to grant said license.” And this is urged as an additional ground for believing that the legislature could not have intended to provide for a mandamus. But the trial and determination of an issue or issues of fact by a jury will not prevent the court or judge from finally passing upon the question whether the application has been arbitrarily rejected or rejected without good or valid reasons.

The jury may find against the excise commissioners on every question submitted to them, and yet it may be perfectly competent for the court, even under those circumstances, to say that they have not refused the license arbitrarily or without good reason. The true intent and purpose of this statute are quite obvious. It provides for an appeal from the discretionary action of the commissioners to the sound discretion of the court. In reviewing such action of the commissioners the court must base its action upon facts and must consider all the facts, those that are conceded as well as those that are contested. The trial by jury will simply aid the court to a final basis of action upon such of the facts as are denied.

The order appealed from should be affirmed.

Allen, J., concurs.  