People ex rel. Funke v. Board of Excise , 31 N.Y. Sup. Ct. 195 ( 1881 )

Gilbert, J.:

We are of opinion that this certiorari was improperly allowed. There is no allegation that the defendants exceeded their jurisdiction, or that they proceeded otherwise than according to law. Conceding that the statute under which the defendants acted (Laws 1873., chap. 549, § 4) is mandatory, and casts upon them the duty of revoking licenses, yet that duty is dependent entirely upon their becoming satisfied that the licensee had violated some provision of the statute. The court cannot compel the defendants to be satisfied, or control their judgment in deciding upon the credibility of witnesses, or upon the effect of their testimony. If their determination is contrary to law, the court may reverse it. But the court has no power to revoke the license, or to order a re-trial, or to direct the defendants to revoke the license. (People v. Supervisors, 51 N. Y., 442, 446; People ex rel. Beller v. Dwight, 3 Hun, 306.) Even if the court had the power to cause the board to act again upon the complaint, it could not prescribe the decision which they should make. Successive decisions of the same kind might lead to other certioraris, but the result would be only to multiply utterly futile proceedings.

The certiorari should be quashed.

Barnard, P. J., concurred. Present — Barnard, P. J.; Gilbert and Dykman, JJ.

Proceedings in case of Charles J. Freygang, quashed, with costs.

Proceedings in case of Joseph M. Donnelly, quashed, with costs.