The opinion
Desmond, J.
(dissenting). In this mandamus type proceeding under article 78 of the Civil Practice Act, petitioner-appellant asks the courts to overrule a determination of the State Liquor Authority and command that body to issue to petitioner a license to sell alcoholic beverages, for off-premises consumption, in a building owned by him in the hamlet or unincorporated village of Verplanck, Westchester County. The petition, alleging among other things that there is at present no such licensed “ package store ” in Verplanck, which, petitioner says, has an all-year population of 2,300 and a summer population of 5,000 persons, charges that the Authority’s denial of his application was arbitrary, unreasonable and capricious. The Authority’s answer denies any arbitrary action or attitude and points out that there are two licensed retail liquor stores in the village of Buchanan, one and a half miles from petitioner’s premises, and eight such shops in the city of Peekskill, four miles distant from Verplanck (it appears elsewhere in the record that there are three others in another community two miles away from Verplanck in another direction). Annexed to the answer is considerable written material embodying the results of an investigation of this application (there was no formal hearing and none is required by statute). Annexed also is the “ Notice of Disapproval ” sent by the Authority to petitioner and which sets forth these reasons:
“ 1. Under all the circumstances in this case it is not conducive to the proper regulation and control of the distribution and sale of alcoholic beverages to issue this license.
‘1 2. In view of the type of neighborhood, there is no need for a package store at the location applied for.”
The first of those reasons is, we agree, so general in terms as not to amount to a factual finding. The second listed reason, however, is a plain statement that there is no “ need ’ ’ for a package store in the particular neighborhood. Besides its answer, the Authority put in an answering affidavit, by its chairman, in which he alleged, as an additional reason for denial, that petitioner operated a candy store largely patronized by children, in another part of the same building, and that the Authority felt that such proximity was not conducive to proper regulation of the sale of alcoholic beverages. Petitioner com *55 plains that this alleged additional reason was never brought to his attention until he was served with the chairman’s answering affidavit in this proceeding. Petitioner says he is quite ready to give up the candy store business, if necessary. We will treat the case as if the candy store matter had never been brought up at all.
Special Term, pointing out, among other things, that the Westchester County local board had approved the application, only to have it denied later by the State Authority, and that some 400 residents of Verplanck had signed a petition asking that the license be issued, ordered a jury trial of the charges of unreasonableness and arbitrariness. On appeal by the Authority, the Appellate Division, however, unanimously reversed the lower court’s order and dismissed this proceeding, noting that the facts were all undisputed, and holding that there was “ no basis upon which either a court or jury could decide that the State Liquor Authority acted arbitrarily or capriciously.” ( 277 App. Div. 882 .) With that conclusion we agree.
The Legislature, in our present Alcoholic Beverage Control Law, has in the plainest, strongest language delegated to the Authority the State’s own undoubted power (Metropolitan Bd. of Excise v. Barrie, 34 N. Y. 657 , 662 et seq.; Bertholf v. O’Reilly, 74 N. Y. 509, 521 ), to fix and limit the number of licensed liquor dealers. That delegation (unquestionably valid, see People ex rel. Doscher v. Sisson, 222 N. Y. 387 ; Freund on Police Power, § 652, quoted by Rodenbeck, J., in People ex rel. Reuther v. Sisson, 101 Misc. 429, 434 ) is found in sections 2 and 17 of the act. Section 2 declares it to be the State policy that it is necessary to regulate and control the manufacture and sale of alcoholic beverages, for the purpose of fostering temperance and obedience to law. There follows the legislative declaration “ that such policy will best be carried out by empowering the liquor authority of the state to determine whether public convenience and advantage will be promoted by the issuance of licenses to traffic in alcoholic beverages, the increase or decrease in the number thereof and the location of premises licensed thereby, subject only to the right of judicial review hereinafter provided for ” (italics supplied). Subdivision 2 of section *56 17 of the act empowers the Authority “ to limit in its discretion the number of licenses of each class to be issued within the state or any political subdivision thereof, and in connection therewith to prohibit the acceptance of applications for such class or classes of licenses which have been so limited.” It is significant that, by subdivision 2, the limiting of the number of licenses is specifically confided to the Authority’s “ discretion ”, while, in the very next subdivision (3), the power to revoke, cancel or suspend licenses is to be exercised “ for cause ” only. Certain causes for revocation, suspension or cancellation are set forth by the Legislature in careful detail in section 118, but as to original issuance, the whole matter is left, at large, to the Authority’s discretion. The legislative intent must have been this: that, within the framework of State policy as announced in section 2, the Authority was to have the broadest discretion to use its unfettered judgment in deciding whether or not to issue licenses in a particular place, even to the extreme of suspending the taking of applications in any particular locality or throughout the whole State. The reasons for this large grant of power are easy to see. They inhere in the liquor business itself, and are written large in the history of the attempts, in this State and elsewhere, to bring the traffic under regulation for its own good as well as for the public good (see Bertholf v. O’Reilly, supra; Cronin v. Adams, 192 U. S. 108 ). How many licensed taverns and package stores there should be is a question, not of law or even of demonstrable fact, but of judgment and informed opinion.
The Legislature in fairness recognized that, once such a license had been issued and the licensee had invested his money and his efforts in the business, the license should not be taken from him except for substantial cause, and the Legislature defined and listed such causes. But no one initially has a right to such a license. The decision as to how many, if any, there should be, in a locality was committed by the Legislature not to a referendum vote by citizens, or to a jury, or to the courts of original or appellate jurisdiction, but to the State Liquor Authority. Of course that grant was, by section 2, made “ subject only to the right of judicial review hereinafter provided for ” and subdivision 1 of section 121 authorizes a judicial *57 review, in the manner provided by article 78 of the Civil Practice Act, of a “ refusal by the liquor authority to issue a license or a permit.” But that apparatus for judicial review does not limit the Authority’s express powers. It is a means for judicial investigation of questions as to whether the Authority has failed to act at all, or has exceeded or grossly misused its powers. No rational Legislature, having set up a bipartisan State Authority, appointed by the Governor and obviously intended as a powerful and distinguished organ of government, could have intended that the Authority’s discretionary decisions, in matters of pure judgment, should be overhauled by the courts. And I am unable to see how this or any other court could go about the business of determining whether or not there should be a liquor store in the hamlet of Verplanck. (Incidentally, a totaling up of figures in a table put into this record by petitioner shows that in 46 Westchester County communities with a combined population of 525,000, there are already 276 package stores, which number might, not unreasonably, be thought to be enough.)
Petitioner-appellant, recognizing all this, does not argue to us that the Authority’s ruling was without basis, on the facts before it. His attack is on the Authority’s findings as such. Analyzing the reasons assigned by the Authority for the refusal of his application, petitioner rejects the first assigned cause as being too general and vague to amount to a statement of a reason, and with that position of petitioner we agree. Then petitioner turns to the Authority’s second reason, viz.: that “ in view of the type of neighborhood, there is no need for a package store at the location applied for.” Petitioner nowhere argues that this does not amount to a definite statement of fact, but says that the Authority, in thus assuming to pass on the “ need ” for a store in Verplanck, was standing on a ground which it had no right to consider, under the statute. Pointing to the phrase “ public convenience and advantage ” in the policy declarations (supra), of section 2 of the act, petitioner tells us that “ need ” is no criterion and no proper subject of inquiry. Of course, saying there is no “ need ” is really the Authority’s shorthand formula for expressing its opinion that “ public convenience and advantage ” do not require, and would not be served by, a liquor store in the particular community. Basing license *58 denials on “ need ” has not in other Liquor Authority cases, been considered by this court to indicate the use of illegal standards (see the following decisions, in some of which this same word ‘ ‘ need ’ ’ was used by the Authority in stating its grounds for denial, which grounds we approved, expressly or impliedly: Matter of Glintenkamp v. O’Connell, 296 N. Y. 806 ; Matter of Watinsky v. O’Connell, 297 N. Y. 552 ; Matter of Fiore v. O’Connell, 297 N. Y. 260 ; Matter of Snetlage v. O’Connell, 297 N. Y. 707 ; Matter of Pichacz v. O’Connell, 297 N. Y. 981 ). When the Authority says there is no “ need ’ ’ for a package store, it is obviously saying that public convenience and necessity do not call for one, and it would be idle for us to send the case back to the Authority so that it might substitute the statutory phrase for the word “ need ”. Since the enactment of this statute “ public convenience and advantage ” and “ need ” have been considered to be synonymous (see Matter of Fenson v. State Liq. Authority, 152 Misc. 446 ; Matter of Glintenkamp v. O’Connell, supra; Matter of Pickacz v. O’Connell, supra). And, certainly, we should not send the case back to force the Authority to recite in a formal decision the data on which it acted, when that data is all in the record here, all undisputed and most of it furnished to the Authority by petitioner himself.
A word more as to this matter of findings. Formal findings, showing grounds for action, are necessary and important when an administrative body acts quasi-judicially with a hearing, evidence, etc., as in the cases cited in the opinion of Judge Lewis, or, as to the Liquor Authority itself, when it revokes or cancels a license for cause after a hearing. In such situations, adequate judicial review can be had only on a formal statement of the administrative body’s reasons for its quasi-judicial decision. But the discretionary refusal of a license is no quasi-judicial act. The test of the legality of such a refusal is not whether there is “ substantial evidence ” to support it, but whether it is “ arbitrary or capricious ” (see Attorney-General Goldstein’s Report on Judicial Review of Administrative Action, 2 Syracuse L. Rev., No. 2, p. 200, also in N. Y. L. J., May 15, 16, 17, 1951). As this court put it in Matter of Stracquadanio v. Department of Health ( 285 N. Y. 93, 96 ): “ our inquiry is limited to a determination whether the record *59 discloses circumstances which leave no possible scope for the reasonable exercise of that discretion in the manner of which the appellant complains.” Since the question before the Authority here was not one on which it had to make a decision on conflicting evidence, but one in which, without a formal hearing, it exercised its own good judgment and as to which it could not be overruled if there is any “ possible scope ” for its exercise of discretion, findings are of little consequence, one way or the other. Even assuming their necessity in the present case, we do not know how the Authority could better inform the courts of its reason than by saying that it found no need for a package store in Verplanck. Further findings, which could be no more than a recital of undisputed facts, could serve no purpose at all.
Appellant, while properly insisting on his right to an article 78 court review, is limited to those questions which that article makes reviewable, in such a situation as this. Those questions are set out in section 1296 of the Civil Practice Act. Of the reviewable issues there listed, one only is here present, that is, No. 1: “Whether the respondent failed to perform a duty specifically enjoined upon him [it] by law ” — in other words, the question of whether the Authority was bound by law to give petitioner his license. This is mandamus, and, under settled rules petitioner could not have mandamus from any court unless he proved a clear legal right to the license. What clear legal right of his could possibly be infringed here f Surely he does not claim he had a right to sell liquor at retail in Verplanck. Instructive in this connection is the exhaustive opinion of Justice Rodenbeck in People ex rel. Reuther v. Sisson (supra) construing a 1917 Liquor Tax Law amendment by which the Legislature limited the number of licenses in each town to not more than 1 per 500 inhabitants, and left to local commissions the final determination as to who should have those licenses. That resulted, in Reuther’s Case, in his losing a license he had long enjoyed. Summing up an elaborate examination of the law of liquor licensing, Justice Rodenbeck wrote ( 101 Misc. 429, 438-439 ): “ The legislature has the power to reduce the number of liquor licenses in the state by limiting the number that shall exist in proportion to the population and for the purpose of *60 reducing the existing number may authorize a local commission to determine after investigation and inquiry which places shall be licensed and what places shall not be licensed and to provide that their determination shall be final and conclusive.” Justice Rodenbeck cited Matter of Hoover ( 30 F. 51, 55 ), where a Federal Judge wrote: “ Now, if the state may prohibit the sale of liquor altogether, since it is clearly not a ‘ privilege or an immunity ’ in the meaning of the constitution, may it not authorize the sale on such terms, by such persons, and at such places, as it thinks proper? And, if it may do this directly, may it not delegate to others the exercise of the power? It has simply delegated a portion of its sovereignty to the county commissioners of Chatham county. The commissioners, in the exercise of that sovereignty, refuse a license to the petitioner: The discretion must rest somewhere.” That Hoover opinion was written in 1887 which saves it from any charge of “ new-fangled ” distortion of the relationship between administrative bodies and courts. The historic fact is that liquor sale licensing has always been carried on just about as it appears in this record, and the courts have always realized that there was nothing quasi-judicial about a routine, discretionary denial of a license.
We do not see how subdivision 2 of section 54 of the Alcoholic Beverage Control Law (found in art. 4, but seemingly made applicable, by subdivision 2 of section 63, to license applications like this one) helps appellant. It requires the State Authority, in such a case as this, to “ state and file in its office its reasons ” for disapproval. It has certainly done so, in this instance. Subdivision 2 requires no hearing at all (see, for contrast, subdivision 3 of the same section 54 which, under circumstances not present here, does mandate a hearing).
The order should be affirmed, with costs.
Conway and Froessel, JJ., concur with Lewis, J.; Ftjld, J., concurs for reversal in separate opinion; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Dye. J.. concur.
Order reversed, etc.