Kelly v. Excise Commissioners

Van Hoesen, J.

It is admitted that Mr. Thompson is the keeper of a restaurant merely. The keeper of a restaurant, who has no beds for the accommodation of travelers, is not an inn-keeper (Carpenter agt. Taylor, 1 Hilton, 193). Therefore he is not, under the act of 1857, entitled to a license. Mr. Kelly keeрs the Centennial House, which is situated on the north-easterly corner of Houston and Greene streets. For five years last past he has kept in his house twenty beds for the accommodation of travelers or sojourners, whom he has entertained without any agreement as to the duration of their stay, or as to the terms of their . entertainment. He has not, however, any means of cooking upon the premises, and when viands аre ordered by the guests he has to send and buy them from neighboring victualers. It is conceded that Mr. Kelly is a man of good moral character; thаt the bond he has offered is good in form and with sufficient sureties; that Mr. Kelly has in his house twenty beds, with good and sufficient bedding for the accommodation of travelers; and that he has sufficient ability to keep an inn, tavern or hotel. The board of excise has not, during the year 1877, determined to grant him а license, though for several years he has held a license in this city. Hpon the return of the order to show cause why a mandamus shall not issue requiring the board to grant a license to Mr. Kelly, the counsel for the board appeared and expressly waived all objections to any defects and imperfections in the relator’s affidavits or proceedings, as he wished to obtain a judicial decision as to the duty of the boаrd of excise ‍​​‌​​‌‌​‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​​‌‌​​​‌‌‌‌‌​‌​‌‌‌​​‌‌‌‍with respect to the granting of licenses to persons who kept places of entertainment like the Centennial Housе. At the very threshold of the argument, the question was raised whether the granting of licenses was not a matter discretionary with the board of excise. If it were purely a matter of discretion, it was conceded that the court should not, save in a case of gross and palpable аbuse, attempt to control the exercise of that discretion. In Ex parte Persons (1 Hill, 655) the supreme court held that until a resolution that á license should be grantеd was actually entered on the minutes of the board, the question of granting a license was an open one, with the decision of which the сourt could not interfere. After the board has passed upon the question and entered on its minutes a resolution in favor of granting a license, a mandamus may be issued to compel the performance of the merely ‍​​‌​​‌‌​‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​​‌‌​​​‌‌‌‌‌​‌​‌‌‌​​‌‌‌‍ministerial act.of delivering the license (The People ex rel. Osterhout agt. Perry, 13 Barb., 206). It is not necessary, under thе present law, for the board to enter on its minutes a formal resolution, but it is still necessary that it should decide that the applicant is a fit and рroper person to receive a license, and that all the requirements of the law are met and complied with, before the сourt can compel, by mandamus, the issue of a license. If it had been.conceded on the argument that the board had ever actually detеrmined to grant Mr. Kelly a license, and that nothing had occurred since that determination to disqualify him from receiving it, I should have felt it my duty to grant the mandamus. But I understаnd the fact to be that at no time has the board resolved that Mr. Kelly ought to have or should have a license. The board raises the objеction that Mr. Kelly cannot cook a meal’s victuals on his premises, and therefore has not the requisite accommodations ‍​​‌​​‌‌​‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​​‌‌​​​‌‌‌‌‌​‌​‌‌‌​​‌‌‌‍for' an inn-keeper. I am called upon to decide whether he be an inn-keeper or not. If an applicant be an inn-keeper, the board ought distinctly to pass upon the question of granting him a license. If the board resolve that he shall have a license, a mandamus will lie if there be undue delay in issuing it. If they determine that all the conditions exist under which the law provides that licenses may be issued, and if they decline to license, bеcause they deem it best for the community that no licenses should be granted, the question will then arise whether the courts of to-day will feel themsеlves bound by the dictum of judge Cowen in Ex parte Persons (1 Hill, 655), and by the dictum of judge Woodbttet in The Mayor agt. Mason (4 E. D. Smith, 142, 147). Those judges both expressed the opinion that the granting of licenses was purely discretionary with the excise commissioners. The question which both parties have requested me to decide, is whether Mr. Kelly be an inn-keeper or not ? There have ‍​​‌​​‌‌​‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​​‌‌​​​‌‌‌‌‌​‌​‌‌‌​​‌‌‌‍been many decisions in this state, as well as in England, respecting the accommodations a house must afford, in order to be entitled to the name of inn, tavern or hotel. Those decisions are all collected in the admirable opinion of chief-justice Daly in Cromwell agt. Stephens (3 Abb. N. S., p. 26). In addition to collаting the decisions, that accomplished scholar brought together in a compendious form his researches, philological and historiсal, into the origin and development of the words inn, tavern, hotel. It is sufficient for me to use the learning he has brought to my hand, and to take the law аs I find it laid down in the decisions he has cited, and in the decision which he made. Chief-justice Daly said: “A mere lodging-house, in which no provision is made for suрplying the lodgers with their meals, wants one of the essential requisites of an inn.” Again, he said: “ We have in the cities houses of entertainment in which the guеst pays so much per day for his room, and takes his meals or not, as he thinks proper, in the restaurant, paying separately for each meal as he takes it. Where the restaurant forms a part of the establishment, and the house is kept under one general management fоr the reception of all travelers that may come, it is an inn, there being no material difference between it and the Elizabethan inn, in which the traveler paid separately for his apartment, and for each meal.” It seems to me a waste of time to argue that a lodging-hоuse-keeper is an inn-keeper, because he may send out and procure cooked food for his guests. As well may it be contendеd that Mr. Thompson who keeps an eating-house is an inn-keeper, because he could, if requested, send out and get the requisite bedding and bеdclothing for the accommodation of guests who might wish to pass the night in his dining room. Ho rule can be laid down as to the extent and resources of the kitchen, but it seems to me that the board must be satisfied that the furnishing of meals is a regular part of the business of the applicant for a license. A free lunch at the bar, or the occasional bringing of victuals from a neighboring restaurant will not transform a drinking saloon into a hotel. Every mаn’s experience teaches him that no man who expected to keep a hotel would seriously think of sending out to a neighboring dining roоm for every article of cooked food that a guest might order. The good faith of any person who professed to have such a businеss plan would be suspected at once. In short, a house which does not contain the means of preparing food for the table in the ordinary way has not, to use the language of the act, “ the necessary accommodations to entertain ‍​​‌​​‌‌​‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​​‌‌​​​‌‌‌‌‌​‌​‌‌‌​​‌‌‌‍travelers.” The application for the mo/ndmvus must be denied.

Case Details

Case Name: Kelly v. Excise Commissioners

Court Name: New York Court of Common Pleas

Date Published: Dec 15, 1877

Citation: 54 How. Pr. 327