People ex rel. Beller v. Wright , 10 N.Y. Sup. Ct. 306 ( 1874 )

Hardin, J.

The relator was not entitled to a trial by jury. The statute under which he received his license expressly authorizes and empowers the hoard of excise when “ they shall become satisfied that any such person or persons has or have violated any of the provisions of the act, to revoke, cancel and annul the license of such persons.” The license was merely a permit given to the relator, under which he was authorized to sell ale and beer. It did not give him any property, or vested right to enjoy the privilege thereof beyond the time when the board should become satisfied that he had violated any of the provisions of the acts of 1857, 1869, 1870, or 1873. The board had no power to inflict a penalty upon him for violation of the law. They were simply authorized to revoke the permit theretofore given him in respect to ale or beer. Laws of 1873, chap. 549, § 4. Wynehamer v. People, 13 N. Y. 378; Met. Board of Excise v. Barrie, 34 id. 667.

'In the last-mentioned case Judge Weight says : “ These licenses to sell liquor are not contracts between the State and the person licensed, giving the latter vested rights protected on general principles and by the constitution óf the United States against subsequent legislation, nor are they property in any legal or constitutional sense. * * * They form a portion of the internal police system of the State.” '

The board in issuing licenses, and in revoking them are clothed with powers to be exercised in their discretion.

In Ex parte Persons, 1 Hill, 655, it was held that their discretion was full and ample, “ and one the court will in no case attempt to control.”

In People v. Norton, 7 Barb. 477, Willard, J., says: “Justices in granting or refusing licenses under the excise law do not act solely as judicial officers, they have indeed a discretion to exercise which this court will not control by mandamus.”

In People v. Jones, 54 Barb. 315, Alleh, J., says: “The commissioners cannot be coerced in the exercise of their discretion by mandamus or otherwise, and for a mere mistake are not liable either civilly or criminally.”

The relator objected to the power of the board to administer oaths to the witnesses produced; the objection was overruled, and the relator excepted. But he did not himself ask to have any witness examined either with or without oaths in his behalf. The statements made by the complainant, and by the witnesses produced before the board, were to the effect that the relator had violated the provisions of the law under which the license was issued, and the hoard upon that became satisfied that the relator had violated the provisions of the act, and therefore revoked their license to him. If it be conceded that the board had no power to administer oaths, still this information was before them, and satisfied them that the relator had violated the law, and it, therefore, became their duty to revoke his license. The counsel for the relator referred us to Buren v. Westervelt, 12 Wend. 195, where proceedings in replevin were set aside because the coroner had no power to take an affidavit. There the statute forbade the issuing of a writ without an affidavit, and Justice SüthbelaíTO very properly remarked, “the compliance with the statute is in the nature of a condition precedent.” The statute now under consideration simply permits “upon an inquiry the said board, or the party complained of,” to summon witnesses and have them examined under oath; confessedly it was competent for the relator to waive as he did his right to have witnesses examined, as it is well settled that a party may waive a statutory provision made for his benefit. The board being satisfied to exercise their discretion in respect to revoking licenses, that a violation of the law had taken place, were not required to take the formal proceedings and full evidence, which might be proper and necessary to reach a judicial conclusion, which should work a deprivation of property, or produce an interference with life or liberty.

They were simply to become satisfied in their judgments, and then their right as well as duty to revoke the 'permit which had been given the relator was clear. They were simply recalling the permit which the relator had obtained and held from the board, and which he accepted upon the condition that the board might in their discretion revoke, as before seen by the authorities cited. The giving of such a license depended upon the discretion of the board; so too the revocation was authorized the moment they became satisfied that the relator had been a violator of the law under which he took the permit. We also think the power to administer oaths may be fairly implied from the section authorizing them to examine witnesses under oath.

The proceedings must be affirmed, with costs.

Ordered accordingly.