Armstrong v. Murphy

65 A.D. 126, 72 N.Y.S. 475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

O’Brien, J.:

The relator applied for a writ of certiorari to review the determination of the police commissioner in refusing to grant a theatrical license for the theatre or premises known as the “ Circle Theatre,” and from the order denying his application he has appealed to this court.

The power of the commissioner of police to grant or withhold a theatrical license under section 1473 of the charter (Laws of 1897? chap. 378) has been discussed in the opinion in the other case which is herewith handed down, wherein this same relator applied for a mandamus (ante, p. 123); and what we are here asked to do is to sanction the granting of a writ of certiorari to review the action of the police commissioner and the proceedings upon which his determination was based.

We do hot think that the Supreme Court has, under the statute, any power to review the action of the police commissioner with respect to granting or withholding a theatrical license. A full discussion of the question of when the writ of certiorari to review the action of public officers can and cannot be issued will be found in People ex rel. Kennedy v. Brady (166 N. Y. 47), wherein, after referring to the cases in which the writ can be issued, the opinion, continues: “ Official acts, executive, legislative, administrative or ministerial in their nature or character, were never subject to review by certiorari. The writ could be issued only for the purpose of reviewing some judicial act.”

The question which we have here presented, therefore, is whether the refusal of the commissioner to grant the license is a “ judicial act.” Ordinarily those words include a judicial proceeding wherein an interested party is entitled to a trial or hearing; or, differently expressed, a judicial act is one involving the exercise of judicial power, hy which is meant the power to hear and determine controversies between adverse parties or questions in litigation. We do not think that the action of the commissioner under this statute is in any sense judicial, because there is no provision for a hearing, nor, with respect to the determination to be reached, are there questions to be litigated. It is unquestionably his duty concerning applications made for theatrical licenses to make inquiry, and, on the responsibility of his official oath, to reach a determination; but with that determination, when reached, the court has no right to interfere. In other words, the granting of licenses is referred to the judgment and discretion of the commissioner, and there is no authority in any particular instance for substituting for the conclusion which he may reach that of the court. And even if his determination were re viewable — to which opinion we do not assent — as well said in People ex rel. Mayor v. McCarthy (102 N. Y. 643) : “ A judicial review of conclusions based mainly, if not exclusively, upon the mental operations and the individual knowledge and qualifications of the persons composing the tribunals referred to, is obviously impracticable if not impossible. Reasons founded upon the personal knowledge and experience of individuals, or conclusions reached by the exercise of their intellectual faculties, cannot be recorded and reproduced' in such a manner as to enable an appellate tribunal intelligently and fairly to review the correctness of their judgment. Inherent and insuperable difficulties exist in the very nature of the process by which conclusions are reached which renders any appellate jurisdiction over their determination impracticable and ineffectual.”

We have not overlooked the argument presented on behalf of the relator, that the duty of the commissioner to issue such licenses is imperative and mandatory, but from what has been said it will be seen that we do not regard it as sound, our conclusion being that the power vested in the police commissioner under this statute is purely discretionary and one not reviewable by the courts.

The order accordingly should 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.