Gaynor, J.:
What is called the sanitary code of the city of Hew Y ork is made up of health ordinances adopted from time to time during a course of years by its board of health (Laws of 1873, ch. 335, sec, 82); and the charter of the new city enacted that this code, to the extent that it was then “ in force,” was and should continue to be binding and in. force in the new city (Laws of 1897, ch. 378, and of 1901, ch, 466, sec. 1172). Any violation thereof is made a misdemeanor by the said charter section. Section 56 of the said sanitary code is as follows:
[858]*858“Ho millc shall be received,.held, kept* offered for sale or delivered in the city óf Hew York without a permit .from the Board of Health and subject to the conditions' thereof.”
The revocation of the relator’s- permits, and the refusal to permit him to sell milk thereafter, was on the ground that he and some; of those who work for him were convicted in a criminal court of selling milk which was below the standard fixed by another section' of this sanitary code ; and. the opposition to the .granting of the writ is put on that ground alone, i. e., that the board'of health has the power to disqualify a person from selling milk for his conviction in a criminal court of a violation of its ordinances fixing, the standard of pure milki
The precise question presented is, therefore; has the board of health power to revoke the license of a milk vender for'his being convicted in a criminal court of the offense of selling adulterated milk, and thereby and by refusing him a license thereafter inflict .on him a forfeiture of the right or a penalty of disqualification to carry on that business.
1..^-1 suppose it is within the power of the' state Legislature to pass an act to disqualify one to continue in a particular business, and to revoke his license therefor, as a penalty for his subsequent ■conviction of a violation of any law or ordinance regulating such business, as is done, for instance, in the statute for the licensing of master plumbers (Laws 1892;. ch. 602, sec. ■ 13)"; or, it may be enabling a municipal .common council or other competent body to pass an act call it ordinance, by-law or rule, as you will,’ for there is nothing in the name) to. the same effect. It suffices that there-is no-such (disqualifying act, state or local, in this case. Another section of- this code of sanitary ordinances fixes the standard of milk to be Sold, and the punishment prescribed by the Legislature for a violation thereof is, as we have seen, the general one for a misdemeanor, i. e., a fine not exceeding $50-0, or imprisonment not exceeding One year, or both (Penal Code, see. 15)1 The board of health has prescribed no punishment; nor has any municipal authority.- Ho penalty or sanction for the enforcement of - ordinances can be resorted to except those previously prescribed by statute, or by a local ordinance authorized by statute (Hart v. Mayor, etc., of Albany, 9 Wend. 571; Greater New York Athletic Club v. Wurster, 19 [859]*859Misc. Rep. 443; Dillon on Munic. Cor. sec. 280 — 4th ed. sec. 346).
a. It is not necessary to now say whether the board of health has been given power by the Legislature' to enact an ordinance prescribing such penalty of disqualification upon such conviction, and, if so, whether such grant of power be valid. It suffices that no such ordinance exists. It should not escape notice in passing, however, that the said charter section 1172 empowers such board to “provide for the enforcement of the said sanitary.code by such fines, penalties, forfeitures or imprisonment as may by ordinance be prescribed.” If this language' had to be construed as purporting to give the board unrestricted power to, prescribe punishments of the nature, mentioned, it would mean that such board could prescribe the forfeiture of one’s estate as well as of his occupation, and any length of imprisonment or weight of fine, if the Legislature be capable of delegating such transcendent powers of sovereignty* But it expresses no such legislative intention, for it expressly limits such punishments to such •“ as may by ordinance be prescribed,” i. e., to such as there is power to prescribe by ordinance; and apart from the Legislature’s power of delegation, -the charter, as we have seen, sets limits to ordinance making on that head by making the offense of violating the said sanitary code a misdemeanor.
It has been suggested that there is such an ordinance (or “ rule,” as it is called, and that name is just as good if there be any who prefer it). This is based on an allegation in an affidavit read in opposition below, that “ it is the practice of the board of health ” to revoke the permits of persons twice convicted of selling adulterated milk, and to refuse permits to them thereafter, and that the board followed “ this rule ” in the present case. But the ordinances of the board of health have to be in writing and published like all statutes (sec. 1172, supra). There is no pretence that there is any such written “ rule,” by-law or ordinance. As to the “ practice ” of inflicting the penalty of disqualification, that is the very thing objected to as a usurpation of power.
b. Hor may we consider whether the Legislature may empower the board of health to revoke such a permit for cause after a hearing by it on notice, with or without a conviction in a criminal court, and by that fact disqualify the holder, for no such power has been [860]*860conferred; or empower if to pass an ordinance for such revocation and disqualification by it after such notice and hearing, or without that judicial formality, for there is no such ordinance. But the subject cannot be even cursorily considered without remembering that either by the framework or the express words of the. instruments constituting government throughout this country, government is divided into the three branches, legislative, executive-and judicial, and the powers of government, divided among these three branches aecord'ing to their kind. To assign to an executive official or board the power to both make laws and judicially try and punish persons for their violation would therefore raise a most grave, question. Howhere is the fundamental principle of government that the powers of government, or of any two of the departments of government, cannot be united in any one department, bettér expressed than by this renowned section of the Massachusetts Bill of Bights, viz.:
“ In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them-; the executive shall never exercise the legislative and judicial powers, or either of them ; the. judicial shall never exercise the legislative and executive powers, or either of them; to the end it’ may be a government of. laws and not of men-.”
g. Such an ordinance, or state statute, would have to “ require ” a hearing on notice to be valid, for the right to follow any of the ordinary occupations of life is protected by the constitutional right" of liberty and property, and therefore cannot be taken away except by judicial process, an essential ingredient of which is a requirement of a notice of trial (Stuart v. Palmer, 74 N. Y. 183).
2.—It. follows that inasmuch as the board of health had no power to inflict such forfeiture and disqualification as a punishment, it'.had no power to inflict it at all; unless, as is claimed, the.
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Gaynor, J.:
What is called the sanitary code of the city of Hew Y ork is made up of health ordinances adopted from time to time during a course of years by its board of health (Laws of 1873, ch. 335, sec, 82); and the charter of the new city enacted that this code, to the extent that it was then “ in force,” was and should continue to be binding and in. force in the new city (Laws of 1897, ch. 378, and of 1901, ch, 466, sec. 1172). Any violation thereof is made a misdemeanor by the said charter section. Section 56 of the said sanitary code is as follows:
[858]*858“Ho millc shall be received,.held, kept* offered for sale or delivered in the city óf Hew York without a permit .from the Board of Health and subject to the conditions' thereof.”
The revocation of the relator’s- permits, and the refusal to permit him to sell milk thereafter, was on the ground that he and some; of those who work for him were convicted in a criminal court of selling milk which was below the standard fixed by another section' of this sanitary code ; and. the opposition to the .granting of the writ is put on that ground alone, i. e., that the board'of health has the power to disqualify a person from selling milk for his conviction in a criminal court of a violation of its ordinances fixing, the standard of pure milki
The precise question presented is, therefore; has the board of health power to revoke the license of a milk vender for'his being convicted in a criminal court of the offense of selling adulterated milk, and thereby and by refusing him a license thereafter inflict .on him a forfeiture of the right or a penalty of disqualification to carry on that business.
1..^-1 suppose it is within the power of the' state Legislature to pass an act to disqualify one to continue in a particular business, and to revoke his license therefor, as a penalty for his subsequent ■conviction of a violation of any law or ordinance regulating such business, as is done, for instance, in the statute for the licensing of master plumbers (Laws 1892;. ch. 602, sec. ■ 13)"; or, it may be enabling a municipal .common council or other competent body to pass an act call it ordinance, by-law or rule, as you will,’ for there is nothing in the name) to. the same effect. It suffices that there-is no-such (disqualifying act, state or local, in this case. Another section of- this code of sanitary ordinances fixes the standard of milk to be Sold, and the punishment prescribed by the Legislature for a violation thereof is, as we have seen, the general one for a misdemeanor, i. e., a fine not exceeding $50-0, or imprisonment not exceeding One year, or both (Penal Code, see. 15)1 The board of health has prescribed no punishment; nor has any municipal authority.- Ho penalty or sanction for the enforcement of - ordinances can be resorted to except those previously prescribed by statute, or by a local ordinance authorized by statute (Hart v. Mayor, etc., of Albany, 9 Wend. 571; Greater New York Athletic Club v. Wurster, 19 [859]*859Misc. Rep. 443; Dillon on Munic. Cor. sec. 280 — 4th ed. sec. 346).
a. It is not necessary to now say whether the board of health has been given power by the Legislature' to enact an ordinance prescribing such penalty of disqualification upon such conviction, and, if so, whether such grant of power be valid. It suffices that no such ordinance exists. It should not escape notice in passing, however, that the said charter section 1172 empowers such board to “provide for the enforcement of the said sanitary.code by such fines, penalties, forfeitures or imprisonment as may by ordinance be prescribed.” If this language' had to be construed as purporting to give the board unrestricted power to, prescribe punishments of the nature, mentioned, it would mean that such board could prescribe the forfeiture of one’s estate as well as of his occupation, and any length of imprisonment or weight of fine, if the Legislature be capable of delegating such transcendent powers of sovereignty* But it expresses no such legislative intention, for it expressly limits such punishments to such •“ as may by ordinance be prescribed,” i. e., to such as there is power to prescribe by ordinance; and apart from the Legislature’s power of delegation, -the charter, as we have seen, sets limits to ordinance making on that head by making the offense of violating the said sanitary code a misdemeanor.
It has been suggested that there is such an ordinance (or “ rule,” as it is called, and that name is just as good if there be any who prefer it). This is based on an allegation in an affidavit read in opposition below, that “ it is the practice of the board of health ” to revoke the permits of persons twice convicted of selling adulterated milk, and to refuse permits to them thereafter, and that the board followed “ this rule ” in the present case. But the ordinances of the board of health have to be in writing and published like all statutes (sec. 1172, supra). There is no pretence that there is any such written “ rule,” by-law or ordinance. As to the “ practice ” of inflicting the penalty of disqualification, that is the very thing objected to as a usurpation of power.
b. Hor may we consider whether the Legislature may empower the board of health to revoke such a permit for cause after a hearing by it on notice, with or without a conviction in a criminal court, and by that fact disqualify the holder, for no such power has been [860]*860conferred; or empower if to pass an ordinance for such revocation and disqualification by it after such notice and hearing, or without that judicial formality, for there is no such ordinance. But the subject cannot be even cursorily considered without remembering that either by the framework or the express words of the. instruments constituting government throughout this country, government is divided into the three branches, legislative, executive-and judicial, and the powers of government, divided among these three branches aecord'ing to their kind. To assign to an executive official or board the power to both make laws and judicially try and punish persons for their violation would therefore raise a most grave, question. Howhere is the fundamental principle of government that the powers of government, or of any two of the departments of government, cannot be united in any one department, bettér expressed than by this renowned section of the Massachusetts Bill of Bights, viz.:
“ In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them-; the executive shall never exercise the legislative and judicial powers, or either of them ; the. judicial shall never exercise the legislative and executive powers, or either of them; to the end it’ may be a government of. laws and not of men-.”
g. Such an ordinance, or state statute, would have to “ require ” a hearing on notice to be valid, for the right to follow any of the ordinary occupations of life is protected by the constitutional right" of liberty and property, and therefore cannot be taken away except by judicial process, an essential ingredient of which is a requirement of a notice of trial (Stuart v. Palmer, 74 N. Y. 183).
2.—It. follows that inasmuch as the board of health had no power to inflict such forfeiture and disqualification as a punishment, it'.had no power to inflict it at all; unless, as is claimed, the. bare power of the Legislature to the board of health to require a permit or license' from it to sell milk, which is . all that its said ordinance in terms does, carries with if inherently to the said board the power to arbitrarily refuse such permit to whom it will, and thereby prohibit such business to whom it will; and that therefore a license or permit which might have been refused at will by such board in the first instance may be permanently revoked by it at will. How, if [861]*861the Legislature has no power to directly prescribe that such license or permit may be granted or refused at will, it cannot be said that such power inheres in its grant of power to such board to require such license or permit ■ and thus the question whether the Legislature has such power is presented. If it has it not, then the board of health cannot have it.
Is it then indeed so that in this free government, saturated from the beginning with the very sap and juice of liberty, to borrow a phrase from a great constitutional writer (De Lolme on-Bri't. Const., 1853 ed., p. 20), we liav.e already relapsed to that degree of arbitrary power that one may not engage in the usual and necessary occupations of life, the selling of milk, butter, eggs, butcher’s meat, fish, tea, coffee, vegetables, fruit and so on (for they are all within the same principle and category), as matter of right, but only, as is the case in the few despotisms which still survive in the world, by the consent of government as matter of grace—such consent being revocable at will inasmuch as it may be refused at will ? The making of such an assertion anywhere in the Anglo-Saxon world, ever an irritable body on questions of the rights of the individual, arouses instant challenge, for it strikes at the foundation of free government. The final judicial decision in this country in which such a ' claim shall be for the first time upheld will be momentous. It will mark the year in our history when free government had run its coarse with us and the decline to government paternalism or despotism, which cost past ages so much of blood and property to get rid of, set in. The learning and wide research of counsel have not been able to discover any actual decision winch, read with true discrimination and application, supports such a claim. If there is to be such a precedent, we must make it this day.
a. The ordinary useful and necessary occupations of life — the usual occupations and businesses of citizens generally — are free to all men as of right, and may not be arbitrarily prohibited to any one who chooses to engage in them even by the Legislature, let alone by the executive or the judicial branch of government. They may only be regulated, which is a very different thing, and that only by the Legislature directly, or through power conferred by it. Such power to regulate them exists where the safety, welfare or necessary comfort of society requires such regulation. The power of [862]*862prohibition exists only in the case of occupations not included among such free and lawful ones. And what cannot be. done directly cannot be done indirectly, i. e., by requiring such free and lawful occupations to be licensed in order to be carried on and then allowing licenses to be refused at will or revoked at will. ' The constitutional guarantees of the' rights of liberty and property to the individual include his right to follow any ordinary and usual business until he loses or forfeits it by due process, of law (Bertholf v. O'Reilly, 74 N. Y. 509; Matter of Jacobs, 98 id. 98; People v. Marx, 99 id. 377).
b. It does not help the contention to the contrary to say that the power of executive officials to arbitrarily refuse or revoke such a license; at will must be exercised reasonably, and is subject in that respect, to judicial review. If that were so we should have the same case still, for the Legislature can no more confer such power on the judicial than on the executive branch of government. The courts must not forget that arbitrary power is not made lawful, although they may flatter themselves. that it' is made lenient ór benevolent, by being subjected to their review in its exercise. ■ .
c. You may not build a house in a city, or deliver building mater rial to your lot, or connect your house plumbing with the water main in the street, and so on through a list of things, without a, permit or license;' and yet no one will say upon second thought that such a license may be refused to you at', will. If you comply with all reasonable requirements or regulations prescribed, 'as conditions precedent you are entitled to it. These are simple instances, it is true, but the present case* once understood, is equally plain; We-have before.us an occupation which may not. be arbitrarily prohibited, but may only be regulated by the Legislature or by its authority by reasonable conditions and fequffiements, and which may be subjected to a permit or license to that end and to that extent only, and not for the purpose of prohibition at all.
(1. The. matter is one. in which it is ‘difficult to get astray if a certain distinction be kept in mind and easy to get astray if it be not. There are occupations which are not and never have been free, such as the sale of intoxicating drink,, the storage of explosives, the slaughter of cattle, public..shows or plays; such as Cause great noise or vile odors; those of common carrier, mail carrier, innkeeper, [863]*863auctioneer, public hackman, public wharfinger, public warehouseman within limits, and the like, who have public duties to perform, and exercise “ a sort of public office,” as the cases say (New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. [U. S.] p. 382); because the safety, welfare and essential .comfort of society forbid that they should be. Such occupations are inherently dangerous or annoying to the community ; or else are affected with a public interest, or pertain to the public service or a public use, and are therefore of the nature of privileges instead of rights. Some of them may be prohibited altogether, some within certain territorial limits, and others beyond a limited number, under the police power of the state, which arises. from and rests on the community right of self protection and self preservation. Reference to a list of cases in illustration may not be attributed to the overgrown habit of citation when it is possible for such a momentous question to arise in our free government as is presented by this case (Munn v. Illinois, 94 U. S. 113 ; Mugler v. Kansas, 123 id. 623; Crowley v. Christensen, 137 id. 86; Wilson v. Eureka City, 173 id. 32; Gundling v. Chicago, 177 id. 183; Fischer v. St. Louis, 194 id. 361; California Reduction Co. v. Sanitary Reduction Works, 199 id. 306; Slaughter House Cases, 16 Wall. 36; City of Brooklyn v. Breslin, 57 N. Y. 591; Cronin v. People, 82 id. 318; People ex rel. Oak Hill Cemetery Assn. v. Pratt, 129 id. 68 ; People v. Ewer, 141 id. 129; Matter of O’Rourke, 9 Misc. Rep. 564).
These prohibitable occupations should not be confused with the 'multitude of free and lawful occupations which cannot be prohibited, but may in some cases be regulated for like reasons of the general safety, welfare and comfort. Ho one would think of assigning the sale of milk or any of the other ancient and ordinary occupations of life, like those already enumerated, to the former class. They cannot be prohibited as inherently noxious to society, for they are not; nor restricted to a limited number for the general welfare, for the general welfare does not require it, but the contrary-, in order that the economic laws of trade and prices may not be dislocated or thwarted ; or for pertaining to the public service or a public use, or as affected with a public interest, for they are not of that class; but they may be subjected to regulation, and in cases of occupations requiring for the safety of the community scientific skill,. [864]*864or special knowledge, or even moral excellence, such as that of master plumber, engineer, physician, and. the like,, to regulation in respect of such qualifications, according to the case; all of such regulations, however, to be applicable to all persons alike, so that no one be discriminated against nor arbitrarily excluded; for our system of government "was constructed on an abhorrence of arbitrary power as its corner stone (Barbier v. Connolly, 113 U. S. 72; Yick Wo v. Hopkins, 118 id. 356; Hawker v. New York, 170 id. 189 ; Plumley v. Massachusetts, 155 id. 461; Schollenberger v. Pennsylvania, 171 id. 1 ; Collins v. New Hampshire, Id. 30; Capital City Dairy Co. v. Ohio, 183 id. 238; Dobbins v. Los Angeles, 195 id. 223; People v. Marx, 99 N. Y. 377; People v. Gillson, 109 id. 389; City of Buffalo v. Collins Baking Co., 39 App. Div. 432; People ex rel. Schwab v. Grant, 126 N. Y. 473; People ex rel. Nechamcus v. Warden, etc., 144 id. 529).
e. And. such regulation is invariably effected by means' of the requirement of licenses or permits to engage. in such occupations, that being, however, only a means of affording notice to the public authorities of all persons who do so, in order to enable them to exact the reasonable qualifications or conditions imposed, and there-after make the necessary inspections to enforce the regulating ordinances or laws by criminal prosecutions, or the collection of the penalties prescribed or allowed to be prescribed by statute, or in any other lawful way.
f. There are thus two distinct systems of licensing which must not be confused together, (1) the one of occupations which may be prohibited by the Legislature altogether, and therefore by dispensing power tolerated and allowed to many or to a few, as the Legislature may see fit, and of occupations that may be prohibited by it partly, viz., in a locality, or in excess of a limited number; and (2) the other of occupations that may not be prohibited at all, and which is wholly for the purpose of regulation. In the same way licenses of free and lawful occupations are resorted to for taxation, and no one may be refused a license who tenders the tax. To "enter . upon a consideration of this subject without this distinction in mind would be like putting to sea in a rudderless ship.
g. If our executive officers could arbitrarily restrict the number • of persons to carry on the ordinary and necessary vocations of life. [865]*865and select such persons, the exalted conception of our government as one of laws and not of men would be at an end. And even if our Legislatures could do the like, or empower executive officers'to do it, how long would it be before such power would be made the means of the gross official extortion which we know from the world’s experience to be inseparable from arbitrary power or paternalism in government? Such power in executive or administrative officers in this state in respect of licensing the liquor traffic was used for that purpose to such an extent that alb discretion in granting such licenses had finally to be taken away. Those who meditate a recourse to arbitrary power for a good purpose should pause to consider the consequences, for it is a vice which brings in its train all of the vices, and especially the detestable vices of official extortion and blackmail. Good men in good times should beware of setting bad-precedents'for bad men in bad times. The sale of impure milk or other food is bad, but far worse, and fraught with far. greater evils, would be the growing exercise by executive officials of powers not conferred on them by law. If .they were suffered to require licenses for tire ordinary occupations of life, and refuse them to whom they willed, how long.would it be before such licenses wrould be sold for inoney, or for political favor, or partisan fidelity ? And what would be the effect on the price of milk — and. on its purity also ? The answer" is in every mind ; both would be debauched. Ample lawful powers may be exercised by the Legislature and the board of health to prevent the evil of impure milk. The exercise of arbitrary power would not only fail of that result, but would be attended by immeasurably worse evils. • ■ "
3.— If the foregoing contention were not true, namely, that the Legislature has not the power to arbitrarily prohibit the ordinary useful and necessary occupations of life, .or to confer power to do so, to say that the mere power given to a board of health by the Legislature to impose the requirement of" a license for them implies and carries with it power to revoke such a license at will, would still be erroneous as against the rule that official powers may be' conferred by statute only by express words or necessary implication. It was never true even of licenses to sell intoxicating drinks as we all know. The power of licensing boards or officers or of courts to [866]*866revoke such licenses depends wholly on whether and to what extent the Legislature has conferred it. We are all too familiar with that phase of our present' excise statute, and of the system of excise - statutes which existed in this state from the beginning- up to the time' of its adoption, to make it necessary to enter upon a discussion of the subject. That-no power to revoke such a license existed or now exists except by being given by statute will be disputed by no one. The, notion that .power, to executive or administrative officials .to grant a license carries with it inherently power to revoke is a novel one.
4. —The argument that the board of health may not be deemed restricted to the enforcement of the punishment prescribed by statute, or -by its own lawful ordinances, for the violation-.of. its ordinances, because that would leave.it possible for an offender to offend again even while being prosecuted for a prior offense, or after his-conviction thereof, if his permit be not revoked, would be a strange one for a court to listen to, much less suggest, as showing that the board has the power to revoke. Ho one could indulge in it without forgetting himself. If the severe punishment of one year’s imprisonment and $500 fine be not enough to secure obedience to the' sanitary ordinances of the city of Hew York— an incredible pretence— and i the "board of health be without power to prescribe a severer one, that is a consideration to be. addressed to the Legislature, not to the courts — nor to ;the executive department of government.
5. — An examination of the argument or legal thesis which is opposed.to the foregoing discloses, as it seems to me, the- continual confusion and misapplication, of what the Legislature has power to do-with what executive or administrative, officials may do.. The cáse of the latter always is, not what the Legislature may do., or empower them to do, but what it has done, or empowered them to do, and then whether they have acted within the power given: It is worse than uséless, for instance, because it is misleading, to cite eases like Doyle v. Continental Ins. Co. (94 U. S. 535) for the proposition that a license or permission is always revocable by the officials who grant it; because the question there decided was. only that the state, the Legislature, may by statute make licenses revocable, and not that mere power to administrative or executive [867]*867officials to license carries with it inherently power to them to refuse at will and revoke at will. If the Secretary of State had assumed to revoke in that case without any legislative authority, then the case would be applicable here, Moreover, the case had to do with a business which the state had the power to prohibit entirely within its borders, viz., that of a foreign insurance company. The case of Hawker v. New York (170 U. S. 189) also dealt with an act of the Legislature, not with an ordinance, and much less xvith an official act based on neither statute nor ordinance, as is the case here. JSTor is any authority needed for the proposition that a valid local ordinance @r by-law has the same authority within the territory to which it is limited as an act of Parliament or of the Legislature. That is not the point here ; we are bending our.minds to the question whether this relator xvas dealt with by any act, ordinance or by-law, or by a mere assumption of power.
6.—• It does not seem necessary to point out that the case of People ex rel. Lieberman v. Van De Carr (199 U. S. 552) has no application to the present case. There the validity of this same ordinance was the only question ,up, the test being made by means of the writ of habeas corpus by one under arrest for selling milk without a permit, and who sought his discharge on the sole ground that the ordinance' was void. It Was for-him to have compelled the giving of a permit to him, or the reinstatement of his old permit, by xvrit of mandamus; for the requirement of a permit is valid as within the power of regulation, and a permit is therefore necessary, the same as a requirement of a permit to build a house, or to extend a water-pipe from the street main to your house, for instances out of many, is valid and a permit therefor necessary, even though it cannot be lawfully refused, being permitted not for prohibition but only for regulation. There is no question made here of the validity of this . ordinance. The learned judge who wrote the opinion in the Lieberman case several times speaks of the power “ to grant or withhold ” licenses or permits, using the phrase as though power to grant is only a corollary of power to refuse, which, is quite true in the case of occupations which may be prohibited, but not at all true in the case of occupations which may not be prohibited, as has already been pointed out — a distinction which the learned 'judge himself would have been the first to make if there had been before him a case call[868]*868ing for it. But there was not; the sole question .before him was whether the ordinance requiring a license was valid. We have been too recently admonished that the actual point- decided in a casé is all that we should follow, to be misled by inadvertent or irrelevant expressions in judicial opinions (Colonial City Traction Co. v. Kingston City R. R. Co., 154 N. Y. 493 ; Orane v. Bennett, 177 id. 106).
7.— Since the foregoing was written the decision in the case of Metropolitan Milk & Cream Co. v. City of New York (113 App. Div. 377; 186 N. Y. 533)-has been published. That case, was an action for damages against the city and its department of health The complaint was that they damaged the plaintiff by preventing it from selling its milk in the city óf He w T ork. A defense was pleaded in substance that the creamery or dairy of the plaintiff from which it. brought its-.milk to the city was in a filthy, unwholesome and unhealthy condition, and that its milk was in the same condition,' and that for that reason tlie department of health, after giving a hearing . to the plaintiff on the said facts on notice, revoked the plaintiff’s-permit and prevented it from bringing such milk into- the city and selling it. Such defense was. held on demurrer, not to be insufficient ■ on its. face, and this was affirmed by the Court of Appeals without opinion. How, without regard -to1 the power of the board to refuse a permit at will,, or to revoke one at- will, it is obvious that the pleaded' defense was good, for no one can be liable in damages for preventing another from doing anything that is a crime, which the sale of -unwholesome milk is. We cannot therefore assume that the Court of Appeals- put its decision on any other ground, in the absence of any -stated ground by it. Hor, are the observations in the opinion of the Appellate Division based on the revocation of the permit relevant or binding here, for they had reference to revocation in that case on a hearing on notice by the board of health on the assumption that such a hearing could be had by itwhereas in the presentíase. there was no such hearing, and none could be had because none was prescribed. . It seems to have been taken for granted by the learned judge there writing .that there is some statute or ordinance prescribing such a hearing-and granting such power of - revocation and disqualification, .whereas we now know there is not.
The order should be affirmed.
[869]*869Hirsohberg, P. J., and Hooker, J., concurred- on the ground that the permit could not be revoked in any event without notice to the relator and a hearing; Jenks, J., concurred in separate opinion, with whom Woodward, J., concurred.