Opinion
December 30, 1905.
Charles S. Mackenzie, for the petitioner.
Herbert H. Kellogg, for the respondent Special Deputy Commissioner of Excise.
Theodore Connoly, for the respondent Hopper.
We think this proceeding must be dismissed upon the ground that the act sought to be reviewed was not a judicial act which could be reviewed by certiorari. The function of the writ of certiorari is to review a determination of an inferior court or officers exercising judicial powers. In People ex rel. Corwin v. Walter ( 68 N.Y. 403) Judge ALLEN, in delivering the opinion of the court, said: "The writ lies only to inferior courts and officers exercising judicial powers affecting the property or rights of the citizen, and is directed to the court, magistrate or board, exercising such powers, requiring them to send into the Supreme Court from which the writ issues, the proceedings in a cause or matter already terminated." In People ex rel. Second Avenue R.R. Co. v. Board of Comrs. ( 97 N.Y. 37) the relator sought to review the action of the department of public parks in the city of New York in consenting to the construction of an elevated bridge across the Harlem river at the end of Second avenue. In that case the court says: "It is difficult to conceive in what respect the respondents acted judicially in giving their consent to the erection of the bridge in question, or in making the contract with the Suburban Rapid Transit Company. If they had the power claimed, to give the permission and enter into the contract, they acted as public agents, in the exercise of delegated governmental powers, and their action was not subject to review on certiorari. * * * A common-law certiorari lies only to inferior tribunals or officers exercising judicial powers, to correct errors of law affecting materially the rights of parties. The fact that a public agent exercises judgment and discretion in the performance of his duties does not make his action or powers judicial in their character." In People ex rel. Trustees of the Village of Jamaica v. Board of Supervisors ( 131 N.Y. 468) it was held that the action of the board of supervisors in issuing bonds for public improvements was purely legislative and that the court had no jurisdiction to review it on certiorari. The court said that when the action of a public officer, or of a public body, is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari. In People ex rel. Van Sickle v. Austin ( 20 App. Div. 1) the Appellate Division in the second department held that the function of an election board of a town in receiving votes and announcing the result is not judicial and cannot, therefore, be reviewed by the writ of certiorari.
Neither the act of the Special Deputy Commissioner of Excise nor of the superintendent of buildings of the city of New York was in its nature judicial or had any relation to judicial functions. Under chapter 697 of the Laws of 1905 the superintendent of buildings was to inspect and make a written report as to whether the premises described complied with the local laws of the city of New York and the laws of the State in relation to hotels. This was purely an administrative function and not in its nature judicial; no notice was required to be given, no hearing had, no evidence taken, and nothing involving the nature of a judicial proceeding. If the superintendent of buildings reported to the Special Deputy Commissioner of Excise that the building did not comply with the local laws of the city of New York and the laws of the State in relation to hotels, the statute directed the Special Deputy Commissioner of Excise to cancel and revoke the liquor tax certificate. There was nothing in this proceeding that involved a judicial act, nothing even resting in his discretion, as the command of the Legislature was imperative.
There being no proceeding that could be reviewed by this writ the writ must be dismissed, with fifty dollars costs and disbursements.
O'BRIEN, P.J., and CLARKE, J., concurred.
I concur in the result, but upon the ground that the statute is constitutional. If it were unconstitutional I think there would be a remedy by certiorari. I know of no other way to correct the record and restore the liquor tax certificate and preserve the licensee's right to sell liquor in the meantime, and to obtain a rebate if he should desire to surrender the certificate.
PATTERSON, J., dissented.
Writ dismissed, with fifty dollars costs and disbursements.