Schwab v. Grant

Citation126 N.Y. 473,27 N.E. 964
PartiesPEOPLE ex rel. SCHWAB v. GRANT, Mayor.
Decision Date02 June 1891
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, first department.

F. J. Bischoff, for appellant.

D. J. Bean, for respondent.

RUGER, C. J.

This appeal is brought by the relator to procure a reversal of an order of the general term affirming an order of the special term, which refused to grant an alternative mandamus against the mayor, requiring him to approve the relator's bond, and issue to the relator a license as auctioneer in the city of New York, or show cause to the contrary. No question is made but that the bond offered by the relator was sufficient in form and substance to comply with the requirements of the law; butitis claimed that the mayor, in the exercise of his discretion, had the right to refuse to issue the license, and was justified in so doing. On the other hand, it is argued that the relator was entitled, as matter of right, to a license upon filing the bond required by the charter. The appointments of auctioneers, and the regulation of their rights, duties, and compensation, has always been the subject of legislation in this state. It has, from the first, been assumed, in dealing with the subject by the public authorities, that no person had a natural right to prosecute such a business at his pleasure, and privileges to do so have always been granted by some authority, subject to conditions and regulations which excluded the great body of the people from the prosecution of such business. The right to regulate, control, and limit the number of persons employed in such business has been exercised by the legislature, as one of its acknowledged police powers, from colonial times to the present, and, I believe, has never been questioned. The persons who have been permitted to pursue the avocation of auctioneers in the state have always enjoyed especial privileges, and have been subject to special conditions and restrictions, which, for the purpose of this inquiry, it is unnecessary to enumerate in detail. The question here relates to the authority which the mayor of New York now has, under the charter of that city, over the subject of licensing auctioneers, and upon the construction of that instrument the determination of the appeal depends. That authority is contained in section 113 of chapter 5 of the consolidation act of 1882, and reads as follows: ‘The mayor shall have authority to grant licenses to any person engaged in and carrying on the business and occupation of an auctioneer, or desiring to be so engaged, on such person filing a bond, with two good sureties, in the penal sum of two thousand dollars. The mayor, on the complaint of auctioneer, or the clerk, agent, or assignee of such auctioneer, doing business in said city, is authorized and directed to take testimony under oath in relation thereto; and if the charge shall, in his opinion, be sustained, he shall revoke the license granted to him, and direct the bonds to be forfeited.’ In the same connection, the mayor is also authorized to grant licenses for various other purposes, among which are those of using bag scales, and limiting the number thereof; scavengers of night soil; public exhibitions; keeping boarding-houses for emigrant passengers; booking emigrant passengers, etc.; and to persons soliciting patronage for hotels, inns, steamboats, and other transportation lines. The rights, duties, fees, and privileges of auctioneers are also defined and regulated by special provisions, and particularly so in relation to their rights and duties in making sales of property under judicial orders or statutory provisions. Sections 1983-1998. All sales at auction in the city of New York, not under the authority of the United States, are required to be made by licensed auctioneers. Section 1983, Consolidation Act.

There has been no time in the history of the state when it was lawful for citizens generally to pursue the occupation of auctioneers, or to engage in the business of selling property at public vendue. A brief reference to some of the laws on the subject will show the course of legislation, and the aspect in which auctioneers have been uniformly regarded by the law-making power of the state. By chapter 4, Colonial Laws 1774, all persons were prohibited from exposing goods for sale at public vendue auction in New York, except citizens of the United States who have obtained a license so to do from the mayor or recorder of such city. This provision was substantially re-enacted by chapter 4 of the Laws of 1794. By chapter 27, Laws 1791, all persons, except those duly licensed, were prohibited from selling goods at auction, and the governor of the state, by the advice and consent of the council of appointment, was authorized to appoint all vendue masters or auctioneers, but not to exceed 12 in the city of New York. By chapter 62, Laws 1792, the number authorized to be appointed in New York city was increased to 24. Chapter 116, Laws 1801, substantially re-enacts the provisions of the Laws of 1791 and 1792. By the Revised Statutes, auctioneers were declared to be administrative officers of the state, and were required to be appointed by the governor; their number being limited to 54 for the city of New York, 4 for the city and county of Albany, and 1 or more for every other village or county where they were deemed necessary by the appointing power. They were also forbidden from exercising their vocation outside of the locality for which they were appointed. Chapter 5, tit. 1, pt. 1, Rev. St. By chapter 52 of the Laws of 1838, it was provided that any citizen of the state might become an auctioneer, and transact his business in the county in which he resided, upon filing with the comptroller a satisfactory bond, requiring, among other things, a quarterly return to the comptroller of all goods sold or struck off by him. It was also provided that, whenever they were found guilty by a police court, mayor's court, or court of criminal jurisdiction, of any fraudulent practices, they should be thereafter forever disqualified from exercising the rights or pursuing the business of auctioneers. 3 St. at Large, p. 656. By reason of the numerous frauds and the disastrous consequences, which followed this general license to persons who had filed the requisite bonds to carry on the business of auctioneers, and especially in the city of New York, it was, by chapter 138 of the Laws of 1853, enacted that ‘all auctioneers doing business in the city and county of New York shall hereafter be required, between the first and fifteenth of June in each and every year, to obtain from the mayor of said city a license to engage in and carry on such business and occupation, upon filing a bond, with two good sureties, in the penal sum of two thousand dollars.’ The mayor was also thereby authorized, on the complaint of any person defrauded, to take evidence on oath in relation thereto, and if, in his...

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