#### People *ex rel.*Welling v. Meakin *et al.,*Commissioners of Excise.

*(Supreme Court, General Term, First Department.*

May 16, 1890.)

L Mandamus—To Comped Judicial Officer to Act.

Under Laws N. Y. 1870, c. 175, § 8, as amended by Laws 1873, c. 549, § 4, providing that the board of excise of any city, etc., may, and upon the complaint of any resident of said city, etc., “shall, ” summon before them any person licensed to sell intoxicating liquors, and, if satisfied that he has violated any provision of the act, cancel his license, *mandamus*will lie to compel commissioners of excise of New York city to decide a complaint presented to them by a resident of their city against a saloon-keeper for keeping his saloon open on election day, in violation of the statute.

2. Same—Peremptory Writ.

The complaint was presented to the commissioners on January 27th, set for hearing February 12th, and submitted for decision February 28th. On the last-named day the license had 58 days to run. When the *mandamus*proceedings were commenced the license had only 18 days to run. Held, that the facts justified the inference that the delay was equivalent to a refusal to act, and warranted the issuance of a peremptory writ.

Appeal from special term, New York county.

Application by Richard W. Welling for *mandamus*to Alexander Meakin and others, commissioners of excise. The order was granted, and defendants appeal.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

*Edward Browne,*for appellants. *L. L. Delafield,*for respondent.

Van Brunt, P. J.

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*162tian or judgment of the board. The *mandamus*required the board to exercise its discretion and judgment, and required nothing else. The rules on this subject are well settled. Where the duty is peremptory or absolute, the writ may require the doing of a specific act. Where, however, official discretion and judgment are involved, the writ only commands the board to act. It will not direct the board to act in a specific manner, nor attempt to control its judgment. Even in the case of inferior courts, *mandamus*lies to compel them to proceed with the trial of causes wiiich they have delayed without sufficient reason, (High, Extr. Bern. § 250,) and the author adds (section 251, citing numerous cases) that “the rule may now be regarded as well established that *mandamus*lies in all cases to compel an inferior court to proceed to the trial of a cause, and to set it in motion, when it has unreasonably delayed the proceedings, or where its refusal to proceed amounts to a denial of justice.” See, also, sections 147, 148, Id.; and 3 Bl. Comm. 111. The cases in this and other states are numerous where ministerial officers, clothed with *quasi*judicial powers, have thus been set in motion, although the courts have scrupulously avoided interfering with the manner in which the discretionary duty should be performed. The learned counsel for the appellant evidently misapprehends the language of Emott, J., in *People*v. *Board,*27 N. Y. 378, quoted and followed in *People*v. *Booth,*49 Barb. 31, and *People*v. *Taylor,*1 Abb. Pr. (N. S.) 200. The learned judge there observed that, to entitle the relator to a *mandamus,*“there must be a legal right not merely to a decision in respect to the thing sought, but to the thing itself.” That language had reference to a ease where the *mandamus*was granted to compel the thing sought, not merely to compel a decision. Plainly, what was meant was that the mere right to a decision did not involve the right to a decision in a particular way. The language does not convey the idea that, where there is a right to a decision of some kind, a *mandamus*will not lie to compel such decision. Such a doctrine would be contrary to the entire current of authority in this country, and in England.

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, *163the appellants contend that they are only bound to act when “they shall have become satisfied” that the accused person has violated the act, and that their non-action is proof conclusive that they have not become satisfied. The difficulty with this position—and it is not the only difficulty—is that the statute contemplates the satisfaction of the board, and that the absence of such satisfaction on the part of the board cannot be predicated of non-action; otherwise, the law could be evaded by the failure of the board to meet. Whether the board is satisfied or dissatisfied can only be known after a consideration of the case by the board, and the taking, at a meeting thereof, of the sense of its members. But the entire provision plainly contemplates a summary trial. *People*v. *Haughton,*41 Hun, 560; *People*v. *Schewe,*29 Hun, 124; *People*v. *Commissioners,*59 N. Y. 96. Upon the complaint of the resident, a summons must be issued and served upon the accused. The board or the accused may thereupon summon or compel the attendance of witnesses, and examine them under oath, and the proceeding is styled an “inquiry.” Such an inquiry must have a definite result. It would be the height of absurdity to go through all the machinery of a trial, and then and there let the whole matter rest without any consideration by the board; the complaint being treated as thus fully disposed of, and the case decided. Such a construction would be as dangerous to the accused as it would be injurious to the public. The non-action of the board could be continuously and indefinitely held over the head of the accused. He would never know the day or the hour when the rod of affirmatively expressed satisfaction as to his guilt might be laid upon him. He would be completely in the power of the board; and the grossest oppression, personal or political, might be practised upon him. Upon the other hand, of what avail to the people would be the complaints of public-spirited citizens,—residents of the city,—seeking to enforce the law for the benefit of all, if such complaints are deemed to be legally passed upon by contemptuous silence? In our judgment, it was the plain intent of the legislature, as expressed in this act, that, after hearing all the testimony, the board, as a board, should consider such testimony, and thereupon decide, by a vote of the commissioners, whether the accused person has or has not violated any of the provisions of the act. If such accused person has so violated any of the provisions of the act, the duty to revoke the license is imperative. In that case, to quote the language of the act, “they shall revoke, cancel, and annul the license.” And this duty cannot be evaded, or the rights of the people trifled with, by non-action or silence. In *People*v. *Board,*24 Hun, 195, the court held that the duty of revoking licenses was dependent upon the board’s becoming satisfied that “the licensee had violated some provision of the statute.” The language used in that case involved the concession that the statute is mandatory, and casts upon the board the duty of revoking licenses when so satisfied of a violation of some provision of the statute. In *People*v. *Wright,*3 Hun, 309, Hardin, J., said that the commissioners “were simply to become satisfied in their judgment, and then this right, as well as duty, to revoke the permit which had been given the relator was clear.” And in *People*v. *Commissioners,*59 N. Y. 96, Grover, J., says that the statute authorizes “an inquiry into and determination of the question whether the party licensed continues to be a suitable and proper person to sell intoxicating liquors. ” That there must be an affirmative “determination” has in fact never been doubted.

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*164ter stated in justification, explanation, or extenuation of the neglect of the board to consider this particular case. The commissioners deny that they have “unreasonably delayed or neglected and refused to decide or take any action upon the complaints so made as aforesaid by the City Reform Club,” referring, not to this particular case of Scheuplein, but to numerous “complaints for violation of the excise law, made since the 1st of January, 1890, by the said City Reform Club against persons licensed in the city of ISTew York. ” As to this particular case the commissioners were charged as follows: “(10) That, in violation of the provisions of law in such case made and provided, the said commissioners have unreasonably delayed, have wholly neglected, and have refused to decide or take any action upon the deponent’s said complaint.” The only answer to this charge is a denial of what is not directly averred, namely: “That the said board, or any of the commissioners thereof, are unwilling or have refused to revoke the license of said Scheuplein, or any other licensee, for a violation of the law, as is alleged in said affidavit. On the contrary, deponent alleges that the board of excise, and the commissioners thereof, are entirely willing to decide the said matter of Scheuplein, and all other matters brought before them.” This is clearly an admission of (byfailure to specifically deny) the charge that the eommiásioners have “unreasonably delayed, have wholly neglected, and have refused to decide or take any action upon” the relator’s complaint. It is simply an expression of present willingness, at the time when the affidavit was verified, to decide the case; that is, of willingness under the stress of the proceedings. But, even if the commissioners had denied the charge of unreasonable delay, they have not attempted to deny any of the facts upon which that charge was predicated. It appears without dispute that Selieuplein’s license was to expire on the 25th of April, 1890. Yet on the 8th of April the case had not even been considered, although the commissioners had “often been requested so to do.” Thus it appears that when the case was closed, and submitted for decision, on the 28th of February, the license had 58 days to run. Forty of these 58 days were permitted to pass without the slightest action; and thus, when these proceedings were commenced, but 18 days were left of the term of the license. Under such circumstances a denial of unreasonable neglect would simply be a denial of the self-evident conclusion that there was gross neglect, and that the commissioners, by their willful non-action, were permitting the accused to enjoy with impunity the remainder of his term. We agree with the respondent that the facts fully justified the legal inference that the commissioners did not intend to take any action in the matter; that their delay was unreasonable as matter of law, and equivalent to a refusal to act. In *People*v. *Supervisors,*20 N. Y. 252, a judgment refusing a peremptory *mandamus*was reversed, although the claim under consideration was “not allowed nor disallowed by any formal action of the board.” Johnson, C. J., speaking of this claim, said: “It was laid aside without other action when the duty of the board was to proceed and act upon the claim; * * * and we must hold their conduct to be equivalent to a rejection of the claim, or else leave it in the power of the board of supervisors to postpone action in all cases till such time as they think it fit to proceed.” This case was followed in *People*v. *Supervisors,**41 N. Y. 291, where Porter, J., observed that it was quite evident “from the inaction and delay of the board of supervisors, as well as from the grounds on which the application for a *mandamus*was resisted, that the board did not recognize its obligations to raise the moneys in question under the act of 1860. There was, it is true, no formal refusal; but we think the court below was right in holding that, under the circumstances disclosed in the affidavit, the neglect of the board was equivalent to a refusal to comply with the requisition. See, also, *Queen*v. *Vestrymen,*8 Adol. & E. 889, and *Queen*v. *Commissioners,*reported as note, Id. 901. The case of *People*v. *Leonard,*74 N. Y. 445, does not conflict with these cases. There the *mandamus*was *165not merely to set the officer in motion, and to require him to act upon his judgment, but it directed him to do the specific thing as to which he was clothed with discretion. But, even there, Church, C. J., said it .was not a case of refusal to act at all. “Delay is alleged, and this is explained by the defendant.” Where the facts are undisputed, the question of what is a reasonable time is ordinarily one of law. *Roth*v. *Railroad Co.,*34 N. Y. 553, and cases “there cited; *Hedges*v. *Railroad Co.,*49 N. Y. 225; *Davis*v. *Gwynne,*57 N. Y. 677. Whether that doctrine is strictly applicable here need not be definitely decided, as not only are the facts undisputed, but also the conclusion directly charged against the commissioners with regard to this particular complaint. Upon both the facts and the law, we think the order appealed from was right, and should be affirmed, with costs. All concur.