307 N.Y. 461, Hecht v. Monaghan

Citation:307 N.Y. 461
Party Name:Hecht v. Monaghan
Case Date:July 14, 1954
Court:New York Court of Appeals

Page 461

307 N.Y. 461

In the Matter of REUBEN HECHT, Appellant,

v.

GEORGE P. MONAGHAN, as Police Commissioner of the City of New York, Respondent.

New York Court of Appeal

July 14, 1954

Argued March 11, 1954.

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[Copyrighted Material Omitted]

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COUNSEL

Robert Markewich, Arthur Garfield Hays and Osmond K. Fraenkel for appellant. I. Petitioner-appellant was entitled, as a matter of right, not of favor, to a hearing respecting the revocation of his hack driver's license. II. Where administrative action is judicial rather than legislative, determining liabilities on the basis of past events, due process requires a hearing even if the statute is silent on the question of a hearing. (Prentis v. Atlantic Coast Line, 211 U.S. 210; Philadelphia Co. v. Securities & Exch. Comm., 175 F.2d 808; People ex rel. Copcutt v. Board of Health of City of Yonkers, 140 N.Y. 1; Interstate Commerce Comm. v. Louisville & Nashville R. R., 227 U.S. 88; Morgan v. United States, 304 U.S. 1; Railroad Comm. v. Pacific Gas Co., 302 U.S. 388; Coe v. Armour Fertilizer Works, 237 U.S. 413; Clarksburg-Columbus Short Route Bridge Co. v. Woodring, 89 F.2d 788; Bauer v. Acheson, 106 F.Supp. 445.) III. The juridical nature of a license is irrelevant to the issue of whether a holder thereof is entitled to a hearing respecting its revocation. (Matter of Agoglia v. Mulrooney, 259 N.Y. 462; Matter of Wignall v. Fletcher, 303 N.Y. 435; Matter of Katz v. Moss, 184 Misc. 133, 269 A.D. 854; Garfield v. Goldsby, 211 U.S. 249.) IV. The police commissioner's reliance upon 'the confidential findings of the Department of Investigation' and upon other ex parte evidence was a fundamental violation of due process, requiring annulment of the license revocation. (Ohio Bell Tel. Co. v. Commission, 301 U.S. 292;

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Matter of Greenebaum v. Bingham, 201 N.Y. 343; Matter of Heaney v. McGoldrick, 286 N.Y. 38; Lloyd Sabauda Societa v. Elting, 287 U.S. 329; Kwock Jan Fat v. White, 253 U.S. 454; Anti-Fascist Comm. v. McGrath, 341 U.S. 123; West Ohio Gas Co. v. Commission, 294 U.S. 63; Interstate Commerce Comm. v. Louisville & Nashville R. R., 227 U.S. 88.)V. The gratuitous hearing that actually took place failed to meet the minimal requirements of due process. In the eyes of the law, there was no hearing. (Morgan v. United States, 304 U.S. 1; Heaney v. McGoldrick, 286 N.Y. 38; Matter of Greenebaum v. Bingham, 201 N.Y. 343.) VI. The police commissioner charged petitioner-appellant with the offense of short-changing, but received no evidence relative to this charge. He revoked the license on the basis, admittedly, of other considerations. (Matter of Greenebaum v. Bingham, 201 N.Y. 343; Matter of Wignall v. Fletcher, 303 N.Y. 435; Matter of Willie Harmon's Auto School v. Harnett, 254 A.D. 707.) VII. The sole words 'Keep change' on the summons did not constitute adequate notice of the original charge. (Mullane v. Central Hanover Trust Co., 339 U.S. 306; Morgan v. United States, 304 U.S. 1; Matter of Bender v. Board of Regents, 262 A.D. 627; Matter of 67 Liquor Shop v. O'Connell, 273 A.D. 68; Silverstein v. Mealey, 259 A.D. 854; Coe v. Armour Fertilizer Works, 237 U.S. 413.) VIII. Petitioner-appellant was not afforded the opportunity to cross-examine witnesses and to inspect papers received in evidence. Petitioner-appellant was denied the right to defend and refute, and the trial captain was both accuser and judge. He was not impartial, but was searching for a basis to revoke petitioner-appellant's license. (Matter of Friedel v. Board of Regents, 296 N.Y. 347; Sharkey v. Thurston, 268 N.Y. 123; People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156; Morgan v. United States, 298 U.S. 468; Matter of Grandview Dairy v. Baldwin, 239 A.D. 640; Matter of Bender v. Board of Regents, 262 A.D. 627.) IX. The hack bureau regulation, which purports to empower the police commissioner to revoke a hack license for general undefined conduct, is invalid on its face. The powers therein could not even be legislated, much less delegated. (Yick Wo v. Hopkins, 118 U.S. 356; Matter

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of Cherry v. Board of Regents, 289 N.Y. 148; Matter of Seignious v. Rice, 273 N.Y. 44; Matter of Aloe v. Dassler, 303 N.Y. 878; Matter of Picone v. Commissioner of Licenses, 241 N.Y. 157; Matter of Levy v. Valentine, 172 Misc. 130; Matter of A & R Paper & Metals Co. v. Boyle, 202 Misc. 163.) X. The merits of a controversy can never be reached unless the requirements of procedural due process are met.

Adrian P. Burke, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for respondent. I. Petitioner was accorded a fair hearing upon a substantial charge and there was no impairment of his rights in the conduct of the proceedings. (People ex rel. Donovan v. Board of Fire Comrs., 77 N.Y. 153; People ex rel. O'Neill v. Bingham, 132 A.D. 667; People ex rel. Coughlin v. Webster, 98 A.D. 581.) II. The statute does not grant the right to a formal hearing of charges against a licensee. The petitioner's rights were not enlarged by the hearing that was held. (Matter of Romaner v. Williams, 270 A.D. 948, 270 A.D. 1025; People ex rel. Ritter v. Wallace, 160 A.D. 787; People ex rel. Lee v. Waring, 1 A.D. 594, 149 N.Y. 621; People ex rel. Westray v. Mayor of City of N.Y. , 82 N.Y. 491; People ex rel. Peixotto v. Board of Educ. of City of N.Y. , 160 A.D. 557, 212 N.Y. 463; Matter of Skinkle, 249 N.Y. 172; Matter of Mandel v. Board of Regents, 250 N.Y. 173; People ex rel. Keech v. Thompson, 94 N.Y. 451; People ex rel. Kennedy v. Brady, 166 N.Y. 44.) III. Petitioner could not have the restoration of his license merely because there were some jurisdictional defects in the hearing that was held. He was obliged to show that he has a meritorious defense. (People ex rel. O'Neill v. Bingham, 132 A.D. 667.) IV. Since the trial officer found petitioner guilty on the record of the hearing, the defendant's consideration of other matters for the purpose of determining the punishment was not error. (People ex rel. Keech v. Thompson, 94 N.Y. 451; Matter of Dunphy v. Kingsbury, 173 A.D. 49; Matter of Sunshine v. Marsh, 265 A.D. 927, 290 N.Y. 775; People ex rel. McAleer v. French, 119 N.Y. 502; People ex rel. Clarke v. Roosevelt, 168 N.Y. 488; People ex rel. Walters v. Lewis, 111 A.D. 375, 186 N.Y. 583.) V. The requirement of due process

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does not make the holding of a formal hearing an incident to administrative action which involves the exercise of discretion; whether the requirement has been satisfied must be determined in each instance by the nature of the case. (Philadelphia Co. v. Securities & Exch. Comm., 175 F.2d 808; Interstate Commerce Comm. v. Louisville & Nashville R. R., 227 U.S. 88; Morgan v. United States, 304 U.S. 1; Railroad Comm. v. Pacific Gas Co., 302 U.S. 388; Coe v. Armour Fertilizer Works, 237 U.S. 413; Stuart v. Palmer, 74 N.Y. 183; Sharkey v. Thurston, 268 N.Y. 123.)VI. The decisions dealing with the taking of property without notice, upon which the petitioner relies, do not apply to this case since a license to operate a taxicab upon the streets, unlike a franchise, is not property. (Metropolitan Bd. of Excise v. Barrie, 34 N.Y. 657.)

CONWAY, J.

Petitioner, in this article 78 proceeding, in the nature of certiorari to review, seeks a reversal of the orders of the Appellate Division and of Special Term and an annulment of the determination revoking his hack driver's license. The appeal is here as of right upon constitutional grounds (305 N.Y. 800).

On August 28, 1952, petitioner, who had been a taxicab driver in the city of New York for a considerable period of time, was brought before a captain in the police department of the City of New York charged with having withheld change from a passenger. As a result of that session petitioner's hack driver's license was revoked. On this appeal, petitioner contends that in the revocation of his license he was denied due process of law.

The Administrative Code of the City of New York declares that the taxicab industry in the city of New York is vested with a public interest (Administrative Code, § 436-2.0, subd. 1).It goes on to outline the duties of hack drivers (Administrative Code, § 436-2.0, subd. 24), as well as to provide for the enforcement of those duties by a bureau of the police department known as the hack bureau (Administrative Code, § 434a-5.0). That bureau has been empowered to suspend or revoke the license of any hack driver who fails to comply with the conditions of the code (Administrative Code, § 436-2.0, subd. 27).

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The New York City Charter (§ 436) states that the commissioner of the police department of the City of New York '* * * shall in his discretion issue, revoke and suspend licenses for * * * hacks, taxicabs and taxi drivers * * * and make such rules and regulations for the supervision and operation of such * * * hacks, taxicabs and taxi drivers * * * as are not inconsistent with any other provision of law * * *.' The Administrative Code (§ 436-2.0, subds. 40, 42) elaborates upon that power to suspend or revoke in the following manner:

'40. The commissioner may suspend or revoke any driver's license * * * where the holder has failed to comply with any of the provisions hereof or has wilfully or knowingly violated any of the provisions hereof. * * *

'42. The commissioner may make and promulgate such rules and regulations and prescribe such forms as are necessary to carry out the provisions hereof.'

The statutes do not require that a hearing be held.

In case a hack driver's license is revoked or suspended, the statute (Administrative Code § 436-2.0, subd. 43-a, par. [b]) specifies that it is a violation to drive a taxicab for hire, and upon conviction before a city magistrate a penalty of up to $100 fine and/or up to thirty days' imprisonment may be imposed. It is clear, therefore, that the effect of the revocation of this petitioner's...

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