People ex rel. Empire City Trotting Club v. State Racing Comm'n

• Decision Date: 19 November 1907
• Citation: 190 N.Y. 31,82 N.E. 723
• Parties: PEOPLE ex rel. EMPIRE CITY TROTTING CLUB v. STATE RACING COMMISSION et al.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 31

82 N.E. 723

PEOPLE ex rel. EMPIRE CITY TROTTING CLUB

v.STATE RACING COMMISSION et al.

Court of Appeals of New York.

Nov. 19, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Mandamus by the people, on the relation of the Empire City Trotting Club, against the State Racing Commission and others, to compel defendants to issue to relator a license to conduct racing. From a judgment of the Appellate Division (105 N. Y. Supp. 528), reversing an order denying the writ (103 N. Y. Supp. 955), defendants appeal. Affirmed.

O'Brien, Edward T. Bartlett, and Hiscock, JJ., dissenting.

Joseph S. Auerbach and Welton C. Percy, for appellants.

James Russell Soley, for respondent.

PER CURIAM.

Though we do not concur in the doctrine of the majority of the learned Appellate Division that the commission has no discretionary powers over the grant of a license, and that ‘its judgment related purely to the sufficiency of the acts constituting the corporation, and not to considerations of public or private policy,’ we are still of opinion that the order of the Appellate Division should be affirmed. While the general rule is that mandamus will not lie to compel the performance of a power the exercise of which lies in the discretion of the officer against whom the writ is sought, to that rule there is the well-recognized exception that the action of the officer must not be capricious or arbitrary, and, if such be the character of the reasons for refusing to act, the writ will lie. Merrill on Mandamus, §§ 38-41; People ex rel. Cecil v. Bellevue Hospital Medical College, 60 Hun, 107,¹ affirmed on opinion below, 128 N. Y. 621, 28 N. E. 253;People ex rel. Schau v. McWilliams, 185 N. Y. 92, 77 N. E. 785;Illinois State Board of Dental Examiners v. Cooper, 123 Ill. 227, 13 N. E. 201. In the very recent case of People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 82 N. E. 187, we have said, through Haight, J., referring to the action of the board in revoking a license: ‘If, however, their action is arbitrary, tyrannical, or unreasonable, or is based upon false information, the relator may have a remeby to right the wrong which he has suffered.’ There are to be found in the affidavits in answer to the application for the writ denials by the appellants that the relator has complied with the requirements of the statute, and that he is entitled to a license. But these denials in gross are merely of conclusions, and too indefinite to raise an issue to defeat a peremptory writ where the facts should have been explicitly alleged. Matter of Freel (Sup.) 38 N. Y. Supp. 143, affirmed 148 N. Y. 165, 42 N. E. 586;People ex rel. Beck v. Coler, 34 App. Div. 167, 170,54 N. Y. Supp. 639;People ex rel. Goodwin v. Coler, 48 App. Div. 492-494,62 N. Y. Supp. 964;Matter of Pierce, Butler & P. Mfg. Co., 62 Hun, 265, 16 N. Y. Supp. 768, affirmed 131 N. Y. 570, 30 N. E. 67. The only specific reasons given by the respondents for refusing to issue the license to the relator are that the racing season allowed by law, to wit, from April 15th to November 15th in each year, has been divided up among six other tracks in the vicinity of the city of New York and the Saratoga Racing Association, that the allotment of dates is a proper regulation of...