5 A.D. 66 | N.Y. App. Div. | 1896
The first reason assigned by the respondents for refusing the license was under section 43, chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, which reads as follows:
“No person or persons who shall not have been licensed prior to the passage of this act shall hereafter be licensed to sell strong or spirituous liquors, wines, ale and beer, in any building not used for*68 hotel purposes and for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue and within 200 feet of a building occupied exclusively as a church or school house. The measurements shall be taken from the center of the nearest entrance of the building used for such church or school purposes to the center of the nearest entrance of the place for which an application for a license has been made.”
This reason did not involve the exercise of any discretion on the part of the respondents. The statute was an express prohibition, and the respondents were not authorized to grant the relators a license at all if the facts brought the case within the terms of the statute. It appears that the measurement provided for by the statute was in this case much less than 200 feet. It was only about 66 feet. It is said, however, that the relator then offered to entirety close up the entrance to their store in question. 'We do not think it was within the province of the respondents to make any bargain with the relators upon this subject. The respondents were under obligation to act upon the application when made and the facts as they then existed. The entrance was not then closed, but was open and remained so after the application was made and the license was refused. The license could not have been granted upon the condition that the entrance should be closed, and there was no intention to close it except on the condition that the license was granted. The policy of the statute would seem .to prohibit the construction of the statute claimed by the relators. Accessibility was not everything aimed at. It was the vicinity, the neighborhood, the surroundings of the school which the statute was enacted to protect. The Legislature may well have been unwilling to leave the matter of accession in the hands of the relators. The relators may have locked the door and stipulated to keep it so, but what was the guaranty that they would keep it so? If it be said that they would subject themselves to a revocation of the license if they failed to keep the door locked, .would the Legislature be willing to trust the matter to the vigilance of the board ? As long as the door was there, though locked, an .element of uncertainty would be introduced. It should be held that .there was an entrance so long as it was there as a means of access. Again, it is said that the entrance to which the measurement should
We conclude that the license was properly refused for the first reason assigned by the respondents, and it is unnecessary, therefore, to consider or discuss the remaining reason assigned.
The writ was properly quashed and the order appealed from should be affirmed, with costs.
Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ.,
Order affirmed, with costs.