Petitioner is a domestic trucking corporation with offices in midtown Manhattan, and its trucking services are carried on in New York City’s garment industry. It was incorporated in 1955, and consists of four persons who are its officers and directors, each of whom owns 25% of the corporate stock. Petitioner employs nine persons, other than its principals, and does a gross annual business of $90,000.
In July, 1957 petitioner filed an application for public cart licenses for its five trucks, pursuant to section B32-93.0 of article 15 (ch. 32) of the Administrative Code of the City of New York, which makes it “ unlawful for any person to operate or cause the operation of any public cart without a license therefor ”, A “public cart” is defined as “every vehicle, either horse-drawn or motor driven, which is kept for hire or used to carry merchandise, household or office furniture or other bulky articles within the city, for pay ” (§ B32-92.0). The annual license fee for a motor-driven public cart is $5 (§ B32-94.0). Section B32-96.0 regulates the rates to be charged by public cartmen and the number of persons to be employed on a particular hauling job. It provides that the rates may be agreed upon in advanсe, provided the public cartman furnishes his customer with a written memorandum — upon blanks to be furnished by the Department of Licenses — which clearly sets forth the terms of the contract. In the absence of a special agreement, a schedule of controlling rates is provided. The code further limits the number of men to be employed on any one job to four, including the driver, “except when specially agreed upon by the person hiring the public cart ’ ’. A violation of any of the provisions of article 15 is made punishable by a $25 fine, a 30-day jail term, or both (§ B32-96.1).
The licensing of public cartmen and the regulation of their rates is deeply rooted in the Charter of New York City (L. 1897, ch. 378, § 49, subd. 20, re-enacted as L. 1901, ch. 466, § 51, p. 30) and in the ordinances passed in pursuance thereof (see Code of Ordinances, 1914, ch. 7, tit. II, §§ 305-314, pp. 69-71), and antedates the unification in 1897 of the present five boroughs of New York City into one municipality (L. 1854, ch. 384, tit. II, § 13, subd. 4, p. 840; Ferdon v. Cunningham,
The application for the licenses was denied by the Commissioner of Licenses of the City of New York (hereinafter called the Commissioner) on the ground that petitioner was not a fit and proper party to be licensed to operate public carts. The finding of unfitness was based on the fact that petitioner’s treasurer, James Plumeri, had been convicted of extortion in 1937 in connection with garment trucking racketeering and sentenced to 5 to 10 years’ imprisonment, together with the fact “ that the carting intended to be carried on is in the garment center district which has been under investigation with reference to the racketeering that has been alleged to be rampant in thаt district ’ ’. The act of extortion for which Plumeri was convicted was connected with his activities as business agent of a garment center trucking association. The Commissioner took the position that it was his duty to require that “ licensees be of good and reputable character to insure the public safety and morals of the public with whom such individuals do business and come in contact by reason thereof ”, and that in refusing to issue the licenses he “ acted in good faith for the safety and welfare of the general public”.
In sustaining the Commissioner’s determination, Special Term held: “ Impliсit in the requirement of a license, there is not only an authorization but a command to take reasonable steps to see that the applicant is a fit and proper person to engage in the licensed business ”. The court dwelt at length on the infiltration of criminal elements into New York City’s garment industry, and concluded that the Commissioner’s “ refusal of a license to this applicant, far from being capricious and unreasonable, is sound and salutary. * * * It is manifest that the license commissioner has acted with propriety and within his competence; his action must be sustained ’ ’.
In reversing Special Term, the Appellate Division reasoned that any discretionary powers exercised by a licensing official must be delegated by statute, expressly or by clear implication, and must be accompanied by express or implied standards to guide the administrator’s exercise of discretion. The court recognized “ certain special circumstances in which an admin
Even assuming that the Commissioner did have power to pass upon character and fitness, the court felt that “the evidence before him was utterly insufficient to sustain his conclusion of present unfitness. An old conviction and some old arrests, without more, does not establish unfitness.” It reasoned, however, that the Commissioner “ might have the power ” to withhold the license if petitioner were likely to use it to engage in illegal activities, and hence concluded: “ Because the commissioner may be able, with diligent effort, to establish the fact of reсent relevant illegal activity by applicant, and the likelihood of such activity in the future, if it should obtain a license, the proceeding should be remanded to him for appropriate action rather than to direct the granting of a license forthwith.” The Commissioner appeals from “each and every part” of the Appellate Division’s order, whereas petitioner appeals from only that part of the order which remanded the proceedings and failed to direct the Commissioner “ to forthwith issue the public cart licenses ”.
The issue before us on this appeal, as framed by the Appellate Division, is ‘ ‘ whether the Commissioner of Licenses, under the city statutes which apply to him, has the power to consider the character of an applicant for a cartman’s license, and whether, if he has such power, the information adduced supported his
In addition to the general proposition that power to grant a license necessarily implies power to withhold it for good cause, a further source of discretionary power implicitly delegated to the Commissioner is to be found in the general licensing provisions of the City Charter and the Administrative Code. Section 773 оf the charter vests in the Commissioner “ cognizance and control of the granting, issuing, transferring, renewing, revoking, suspending and cancelling of all licenses and permits ”, except insofar as such powers have been placed within the jurisdiction of other officials, and subdivision c of section 773a-7.0 of the Administrative Code authorizes him “in his discretion to take such testimony as may be necessary on which to base official action * * * when investigating any matters pertaining to” the above. Applications to the Commissioner for licenses must be made “in such form and detail as he shall prescribе” (§ 773a-2.0); the term of all licenses is generally limited to one year (§ 773a-3.0); and the Commissioner “is
In Matter of Rosenberg v. Moss (N. Y. L. J., Aug. 14, 1941, p. 343, col. 7 [Sup. Ct., N. Y. County], affd.
The real question, then, is not the existence of discretionary power in the Commissioner above and beyond the mechanical requirements for a license specified in the code, but the extent of that discretionary power, i.e., what factors the Commissioner may properly consider in determining whether or not to issue a license. The Commissioner’s exercise of discretion in refusing to grant a license, if not otherwise arbitrary or capricious, may be interfered with by the courts “ only when it is clearly shown that refusal is based solely upon grounds which as matter of law may not control [his] discretion ” (Matter of Larkin Co. v. Schwab,
So far as the character and fitness of the proposed licensee is concerned, all the relevant case law in this State expressly or impliedly holds that the licensing official has implicit discretion
In Matter of Picone v. Commissioner of Licenses of City of N. Y. (
In Matter of Arroyo v. Moss (
The Arroyo decision (supra) clearly indicates that the phrase “ fit and proper person” in the Picone case (supra) was not meant to be limited to the specific provisions of the licensing statute, but encompassed the character and fitness of the applicant, as properly evaluated by the Commissioner (see, also, Matter of Larkin Co. v. Schwab, supra, p. 335). The Arroyo decision was unanimously followed in Matter of De Stasio v. Fielding (
Petitioner seeks to distinguish the Schwab and Arroyo cases (as well as other cases relied upon by the Commissioner) upon the ground that they dealt with the licensing of an individual, whereas the Public Cart Ordinance ‘ ‘ merely concerns itself with the registration of property [i.e., the trucks] rather thаn the licensing of the individual into a profession or skilled or unusual trade or calling. ’ ’ This is apparently what the Appellate Division had in mind when it spoke of the ‘1 bareness of the statutes with regard to the qualifications of a public cartman ”, and the lack of “ any legislative history which has been made available ”, which might suggest that the purpose of licensing cartmen ‘ ‘ was more than merely to license for purposes of identification, collection of revenue, or control of the licensees’ activities under specific regulations governing their conduct ”.
We find no merit in this argument. In People v. Horton Motor Lines (
The ordinance involved in the Breslin case expressly provided that applicants for a public cartman license had to be “ of good moral character ” (57 N. Y., p. 594). The ordinance here in question does not expressly require this, as it does not in the case of auctioneers (art. 21), junk dealers — including junk boats — (art. 18), or dealers in secondhand articles (art. 19), among other callings requiring a license. For the foregoing reasons, however, we think such a requirement is implicit in the necessity for a license, particularly in light of the fact that the ordinance regulates rates for the apparent purpose of preventing price gouging and related abuses. It seems clear to us that the Commissioner is not only empowered, but indeed is duty bound, to inquire into the character and personal fitness of the proposed licensee. As the court said in Matter of Dorf v. Fielding (
With reference to the standards by which the Commissioner is to be guided, it would be “ difficult or impractical for the Legislature to lay down a definite, comprehensive rule ” by which he could determine an applicant’s character and personal fitness (Matter of Marburg v. Cole,
The license was denied in the instant case because a principal stockholder, officer and director of petitioner was found to be personally unfit. It cannot seriously be doubted, as noted by Special Term, that “ The character and reputation of the officers of the petitioner are decisive elements in the appraisal of the character of the corporation”, since licensing of a corporate applicant necеssarily entails consideration of the qualifications of the principals through which the corporation will act. The determination of unfitness was, as noted, based on Plumeri’s conviction for extortion in 1937 “in connection with garment trucking racketeering” and his sentence to 5 to 10 years’ imprisonment. When the nature and locale of this conviction are viewed in the context of the apparent purpose of the licensing statute and the industry in which petitioner seeks to operate its trucks, it cannot be said as a matter of law that the Commissioner acted arbitrarily or capriciously in refusing to issue the licenses.
In our opinion, the Appellate Division placed undue emphasis on the age of the conviction, while the Commissioner more properly focused on the nature and locale of the crime. The conviction was for a felony, not a misdemeanor or an offense, and, more important, for the crime of extortion. When one considers that the licensing ordinance regulates the rates chargeable by public cartmen for the apparent purpose of preventing price gouging and related abusеs, and hence is specifically directed against a class of offenses comprehending extortion, the- relationship between the statutory design and the integrity and trustworthiness of the proposed licensee is apparent.
Moreover, the conviction was not for criminal activities remote from the licensed business but was linked to the very industry in which petitioner seeks licenses to pursue its calling — an industry which, as both courts below have emphasized, has been infiltrated by criminal elements. The Appellate Division recognized that ‘ ‘ The garment industry, and particularly the trucking
Once it is conceded that the Commissioner can properly evaluate an applicant’s character and fitness for a public cart license, it cannot be held as a matter of law that there was no “ reasonable basis for [his] considered judgment ” that Plumeri’s past criminal record “ was incompatible and inconsistent with the responsibilities assumed by a licensed [cartman] under the [Public Cart Ordinance] ” (Matter of Wager v. State Liq. Auth., 4 N Y 2d 465, 468). As this court noted in the Schwab case (126 N. Y., supra, p. 482): “ In the government of the affairs of a great municipality many powers must necessarily be confided to the discretion of its administrative officers, and it can be productive only of mischief in the treatment of such questions to substitute the discretion of strangers to the power in place of that of the officers best acquainted with the necessities of the case and to whom the legislature has specially confided their exercise.”
Petitioner makes several оther contentions, not discussed by the Appellate Division, which may be briefly disposed of. It first contends that the language used in the ordinance that the Commissioner “ shall issue a license to the owner of the public cart together with a plate ” upon payment of the license fee (§ 3332-95.0, entitled ‘1 License plates; term”) constitutes a mandatory legislative direction. This argument assumes the
“In issuing permits under section 215 of the municipal ordinance, the City Clerk is not intended invariably to act as an automaton. If a permit may lawfully be issued, he is the officer designated for that purpose. Here is an instance where the word ‘ shall ’ ought not to he interpreted in a mandatory sense. (Matter of Thurber,
Petitioner also contends that, since it has obtained State registration plates for its trucks pursuant to the Vehicle and Traffic Law, a city official cannot deny a State-licensed truck the right to operate on city streets. In effect this argument is but an elaboration of the contention previously considered that the Public Cart Ordinance deals merely with the registration of property, and not with the licensing of an applicant into a trade or calling. As noted, the ordinance in question “ is a comprehensive scheme to license the calling of public cartmеn ” (People v. Horton Motor Lines, 281 N. Y., supra, p. 203), and there can be no question as to the city’s power to license particular vocations “ for the good order of the city and the protection of the persons and property of its citizens and the advancement of its prosperity ” (City of Brooklyn v. Breslin, 57 N. Y., supra, p. 596). The complete answer to petitioner’s argument is section 54 of the Vehicle and Traffic Law which expressly provides that “the power given to local authorities to license and regulate vehicles offered to the public for hire * # * and all ordinances * # * enacted in pursuance of such powers shall remain in full force and effect” (emphasis supplied).
Finally, petitioner argues that it is engaged in interstatе commerce and hence the cartman licensing statute cannot eonstitu
The order appealed from should be reversed, and the order of Special Term dismissing the petition reinstated, without costs to either party.
Chief Judge Conway and Judges Desmond and Burke concur with Judge Froessel; Judges Dye, Fuld and Van Voorhis dissent and vote to affirm and to direct the issuance of cartmen’s licenses to petitioner.
Order reversed, etc.