10 N.Y.S. 161 | N.Y. Sup. Ct. | 1890
This is an appeal from an order granting a peremptory mandamus against the commissioners of excise of this county, directing them to decide a certain complaint presented to therh by the relator against one Scheuplein. The relator presented this complaint on the 27th of last January. It was for keeping open a saloon upon election day, in violation of the statute. Notice was given to Scheuplein, and the matter was set down for hearing upon the 12th of the following February. Upon the latter date the board adjourned the hearing, although the relator was ready to proceed, to the 21st of February, when it was again adjourned (the relator being still prepared to proceed) to the 28th of February. On the 28th of February the hearing took place. Two witnesses testified that Scheuplein’s saloon, which was but 229 feet from a neighboring polling place, was open on the last general election day, and that beer was then and there sold. This was not denied, though Scheuplein was examined, and testified that he knew nothing about this violation of law, and that he left orders not to sell anything over the bar that day. Upon these very simple facts the case was closed, and left with the board for decision. Subsequently the commissioners were repeatedly called upon for a decision, but without avail; and as late as the 8th of April they informed a person who applied to them upon behalf of the City Reform Club, of which the relator is treasurer, that “ there was no decision. ”
Upon this state of facts the mandamus was granted simply to set the hoard in motion. The appeal was submitted, and the first point which we find in the appellants’ brief is that the .power to revoke licenses is a purely discretionary power lodged in the commissioners of excise, and therefore mandamus will not lie to compel them to exercise, or to refuse to exercise, such discretion. This point, although elaborately considered and enforced by the citation of numerous authorities, seems to us to have no bearing upon the real question presented by this appeal, and for the sufficient reason that there was no attempt on the part of the special term to interfere with the discre
The appellant’s second point is that no right existed in the relator, either individually or as a citizen, to a judicial determination of any question by the commissioners of excise. This proposition overlooks the fact that it is a public duty which is sought to be here enforced; and that, as was observed by Mr. Justice Daniels in People v. Daley, 37 Hun, 461, “all citizens are equally concerned in securing its performance.” See the eases and treatises cited in that opinion. It also overlooks the fact that under the statute the board is required to act “upon the complaint of any resident” of the city; and that the present relator, as such resident, was the complainant in the case charged to have been unreasonably delayed. The precise point was decided by Mr. Justice Lewis in People v. Becker, 3 N. Y. St. Rep. 202, and we concur in his conclusion on that head. It is also urged that the board was not bound to act upon the complaint further than to examine the witnesses on both sides; that is, if we understand the learned counsel, to hear the ease, and not decide it. This is a strange proposition, and, if correct, it would lead to a strange perversion of the legislative intent. The act reads as follows; “The board of excise of any city, town, or village may at any time, and upon the complaint of any resident of said city, town, or village shall, summon before them any person or persons licensed as aforesaid; and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act, or of the acts hereby amended, they shall revoke, cancel, and annul the license of such person or persons, which they are hereby empowered to do, and, where necessary, to enter upon the premises, and take possession of and cancel such license. Upon an inquiry, the said board, or the party complained of, may summon, and the said board may compel the attendance of, witnesses before them, and examine them under oath.” Laws 1870, c. 175, § 8, (as amended, Laws 1873, c. 549, § 4.) Taking this literally,
The remaining question is as to whether a peremptory writ should have been granted. The appellants insist that an issue of fact on the question of unreasonable neglect was raised by the opposing affidavits, and that consequently the relator was only entitled to an alternative writ. It is undoubtedly true that a peremptory writ can issue only when, upon the conceded or undisputed facts, the right is dependent upon questions of law. In the present case none of the facts stated in the moving affidavits are denied, nor is new mat