Summary
In Matter of Armstrong v. Murphy, No. 1 (65 App. Div. 123) it was held that a law merely empowering the police department of New York city to grant theatrical licenses upon the payment of a certain sum vested the department with a discretion which was not subject to control by mandamus.
Summary of this case from Matter of Barresi v. BiggsOpinion
November Term, 1901.
Charles H. Luscomb, for the appellant.
Theodore Connoly, for the respondent.
The petitioner applied for a writ of mandamus commanding the commissioner of police, under the provisions of sections 1472, 1473 and 1474 of the charter of the city of New York (Laws of 1897, chap. 378) to grant a theatrical license for the theatre or premises known as the "Circle Theatre" on the southwest corner of Sixtieth street and Broadway. On the receipt of the request for a license the matter was referred by the police commissioner to an inspector, who, after giving those in favor and those opposed an opportunity to be heard, reported against the granting of the license. This report was adopted by the police commissioner, and he swears that he exercised his best judgment in denying the application. To the extent, therefore, that it was discretionary, if the question before us were as to whether that discretion was properly exercised, it would, upon this record, be our duty to uphold its exercise, based, as it was, upon proper and sufficient grounds.
The appellant, however, insists that the statute imposed an imperative duty on the police commissioner, upon receipt of the fee, to grant the license, and it having been refused, that the relator is entitled to the writ of mandamus. The law is well settled, for, as said in People ex rel. Schwab v. Grant ( 126 N.Y. 482): "To obtain relief by mandamus, it is necessary that the relator should show an invasion of a clear legal right." And also, as therein said (p. 481): "A power to grant a privilege to one is inconsistent with the possession on the part of another of an absolute right to exercise such privilege. The requirement that a person must secure leave from someone to entitle him to exercise a right, carries with it, by natural implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or unwise to give the required consent." The question thus presented is not a new one, and a reference to the language of the statute here involved and the authorities bearing upon similar statutes will show that the contention of the appellant is unsound.
The language employed in section 1473 of the charter, which is the only one from which it is necessary for us to quote, is that "the police department is hereby authorized and empowered to grant such license, to continue in force until the first day of May next ensuing the grant thereof, on receiving for each license so granted, and before the issuing thereof, the sum of five hundred dollars. * * *" This language is almost identical with that of section 1999 of the Consolidation Act (Laws of 1882, chap. 410), under which the authority to grant licenses was vested in the mayor; whereas, by the provisions of the charter which we have quoted, such power is now lodged with the police department.
This very contention now made as to the intent and meaning of the words "authorized and empowered," which are to be found in both statutes, was involved in the case of People ex rel. Worth v. Grant (58 Hun, 455), and Justice BARRETT, who wrote the opinion therein, thus disposes of it (p. 457): "The relator's contention is that these words `authorized and empowered' should be construed as imperative, and he cites authorities for the proposition that permissive words may sometimes be treated as mandatory. * * * The rule undoubtedly is, that where public bodies or officers are empowered to do that which the public interests require to be done, and adequate means are placed at their disposal, the proper execution of the power may be insisted upon though the statute conferring it be only permissive in its terms. ( Mayor v. Furze, 3 Hill, 612.) The word `may' is thus construed at times to mean `must.' But why, it may be asked, should this construction be given to the act under consideration? What public interest demands that the mayor should be required under all circumstances to accept the fee and grant the license? It seems to me that it is quite the other way. The public good clearly requires that the permissive words in question should be read in their natural and ordinary sense." (See, also, People ex rel. Dorr v. Thacher, 42 Hun, 349; People ex rel. Cumisky v. Wurster, 14 App. Div. 556.)
These latter cases, in addition to those from which we have quoted, are authorities in support of the view that the power vested in the police department to grant or withhold licenses, is discretionary and is not controllable by mandamus.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and LAUGHLIN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.