
    The People ex rel. Samuel Deutsch, Pl’ff, v. William Dalton et al., Def’ts.
    
      (New York Common Pleas, Special Term,
    
    
      Filed June, 1894.)
    
    1. Excise law—Transfer of license.
    The “Florence Mission" building'is not used exclusively for church purposes within the meaning of § 43 of the excise law.
    
      2. Same—Cebtiobari.
    The issuance of. the.writ of certiorari to the exise board is imperative in a case where an application for a license is denied.
    3. Same—Disobetion.
    The court may direct a license to issue upon its reversal of the excise board’s refusal, but it is not compelled to exercise this function.
    Returh of a writ of certiorari to review the determination of the board of excise of the city of New York.
    
      William F. S. Hart, for relator; Hdward Browne, for board of excise. - (,
   Bischoff, J.

Relator applied for the transfer of a saloon liquor license from the premises No. 170 Suffolk street to premises No, 11 Bleecker street, and the application was refused by the excise board upon the ground, solely, that the latter premises were upon the same street with and having entrance within 200 feet of a building occupied exclusively for church purposes.

The building referred to is that occupied by the “ Florence Mission,” an association devoted to the reformationof fallen women. It does not appear that this mission is organized in connection with any church, and it is alleged and uncontradicted that no clergyman or pastor is therewith associated. According to the description contained in the return made by the excise board, the building is utilized m the following manner :

“ The basement floor as a kitchen and dining room in connection with said mission. The first floor is used for religious meetings every evening until after midnight. The second floor as a sitting room, and two rooms which are occupied by the matrons connected with said mission, and also an office for the board of directors, which are'used in connection with said mission. The third floor contains two dormitories, with twenty-six beds, which are used by the inmates of said mission who attend the religious services. Another portion of said floor is used as a physician’s office, who is also connected with said mission. In the garret, or top floor, a portion of the same is used as a storehouse and also a cook’s sleeping apartment, which is also attached to said “ Florence Mission.”

Argument is unnecessary to demonstrate the fact that this building does not come within the rule invoked by the board of excise in sole support of its denial of the relator’s application, and yet we are to assume that by placing its decision upon this exclusive ground, the board exercised the ample discretion possessed in-such cases in favor of the applicant. The admirable object of the “ Florence Mission ” in its prosecution of the commendable work described might well have appealed to that discretion, and the appeal have resulted in the avoidance of such an opposing element to the mission’s pursuit as the close proximity of a saloon could readily be apprehended to present.

Disposition must be here made of the case, however, upon the ground stated in the return to the writ. It was not within the power of the court to refuse allowance of the writ of certiorari in this case, notwithstanding its possible satisfaction with the result of the board’s determination. By the common law the allowance of the writ was discretionary. People ex rel. Mayor v. McCarthy, 102 N. Y. 624;, 2 St. Rep. 546; People ex rel. Smith v. Commissioners, 103 N. Y. 370; 3 St. Rep. 615; People v. Peabody, 26 Barb. 437 , People v. Board of Health, 33 id. 344; People v. Rochester, 21 id. 656, People v. Andrews, 52 N. Y. 445; People v. Hill, 53 N. Y. 547; People v. Mayor, 5 Barb. 43, and so by Code of Civil Procedure, § 212 ; but by statute the issuance of the writ to the excise board is declared to be imperative in the case where an application for license is denied. Laws 1893, ch. 480, § 24.

By the terms of the above statute it is also provided that the court may direct a license to issue, upon its reversal of the excise board’s determination ; the court is empowered so to do, but this function it is certainly not required to usurp. People ex rel. Jones v. Bennett, 4 Misc. 10; 53 St. Rep. 724. It is indeed a question whether the legislature may have the power to impose such a nonjudicial duty upon the courts. People ex rel. Decker v. Waters et al., 4 Misc. R. 1; 53 St. Rep. 720, and the direction provided for rests, at all events, in discretion. Re Martin v. Symonds et al., 4 Misc. R. 6; 53 St. Rep. 718, People ex rel. Watkins v. Com'rs of Excise, 4 Misc. R. 547, 54 St. Rep. 202; People ex rel. Gentilesco v. Board of Excise, 7 Misc. R. 415 ; 57 St. Rep. 826 ; McNaughton v. Board, etc., 5 Misc. 457. ,

It would certainly appear that in this case the functions in question were sought to be thrust upon the court.

The determination of the board of excise is, therefore, set aside and the matter remitted for its further consideration and action in the exercise of its sound discretion.  