7 Abb. Pr. 34 | N.Y. Sup. Ct. | 1858
—The statute entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed April 16th, 1857, provides, section one, for the appointment of a board of county officers, who shall be known as the “ Board of Commissioners of Excise.” The second section requires that this board shall meet in their respective counties, at the place where the county courts are required to be held, on the 3d Tuesday of May in each year, and on such other days as a majority of the commissioners shall appoint, not exceeding ten days in any one year (except in the city of New York), for the purpose of granting licenses, &c. This section further directs to whom, and what kinds of licenses may be granted, and confers the power upon this board to grant such licenses. By the third
The provisions above, Selected from the act, seem to be all that affect the question presented to me for consideration." It appears from the papers upon which the motion is made, that the Board of Commissioners put their refusal to act in the case in question solely upon the ground, that having already met on the 3d Tuesday of May, 1858, and on nine other days appointed by them, making, in all, ten days of session, in the year 1858, their power to act, for the purpose of granting licenses in this year, was at an end; and, for that sole and only reason, they refused to entertain the application of the said Gerardus C.
It is certainly clear, that if the intent of the statute is to limit the powers of this board to act for only ten days in each year, a license subsequently granted would afford no protection to the applicant. It would be void for want of jurisdiction in the board to grant it. (Palmer a. Doney, 2 Johns. Cas., 349; Rex a. Sainsbury, 4 Durn. & E., 451.) The object of this application seems to be, to ascertain what powers this board possess, in reference to the question submitted. It is obvious that the Legislature intended by this act to constitute a public body of county officers, having certain quasi corporate powers; to have perpetual succession ; to have an official name and character; and to be endowed with corporate capacity in all the particulars in which power is expressl/y bestowed upon them. And it is a well-established principle of common law, in regard to such bodies, that wherever the act which creates them is silent as to the power conferred, they possess, by necessary implication, all the authority that is requisite or necessary to execute the purposes of their creation; among which is the incidental power of suing and being sued in regard to all matters pertaining to the duties enjoined by law, or of any omissions of duty by them, in that particular department of the public interests. Any duties, therefore, which they officially owe to the public, or to individuals, may be enforced through the power of the courts, by the same remedies, and with the same effect, as if they were natural persons. ■ But still, they are a jurisdiction created by statute, and are limited to the exercise of the powers only that are expressly conferred by the statute creating them, and these powers they cannot enlarge by implication, except as above stated. To grant licenses, it is seen, is one of the powers expressly conferred upon this board by the second section of the act; and it is a general rule in the construction of statutes, that when a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, and not mandatory or jwrisdictional, unless the- nature of the act to be performed, or * the language used by the Legislature show, that the designation of time was intended as a limitation of power of the officer. (People a. Allen, 6 Wend., 486.) It was argued, that inasmuch
I cannot agree with the counsel for the petitioner that the limitation of time, by this act, is eleven, instead oí-ten days.
The application, as has been stated, is for a mandamus to compel this board either to issue a license to the petitioner, or to compel them to entertain the application for ope, and to pass upon it. By the well-settled rules of law, this court have not the power to grant this writ, upon either of the alternatives presented. The exercise by this court of the power of mandamus, is only proper in cases where it clearly appears that some legal right has been refused or violated, and that there is no other
Still more unjust, unreasonable, and illegal would it be to grant this writ to compel officers to do more than the performance of a duty, which the statute demands at their hands, by compelling them to entertain the application. True, they did not place their refusal on the ground of the exercise of discretion, but solely on the ground of their want of power. They
It is quite probable that the case of the petitioner is one of hardship to him, or one of inconvenience to the public. It is possible that this condition may be charged to the form of this law. The structure of modern statutes, and especially those on the subject of excise, create a pressure upon the courts, often difficult and embarrassing. The present law has been, perhaps, as much as any other the subject of reproach; even to the charge of absurdity in its provisions. The duty of the court, however, without regard to these complaints, will be best discharged by the attempt to give it such fair construction, as a whole, and in its several parts, as shall be most consistent with the apparent intent of the Legislature, without reference to the hardships or the inconvenience in particular cases. The security of the citizen is always best promoted by leaving to the constituted bodies of public officers the full power to exercise that proper disoreüon with which the Legislature has invested them.
The motion for mandamus must therefore be denied.