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Petitioner argues…cont

The requirement of a license carries with it, by natural implication, a discretion on the part of the Commissioner to refuse to grant one, or, in other words, may not refuse a license upon a ground which the statute does not authorize him to consider, or a ground which is not supported by any evidence, the rule remains that unless the licensing officer commits an error of law or in some other respect acts arbitrarily or capriciously, his judgment is final and the courts may not interfere, and other cases above cited.

Petitioner argues that the only requirements for a license mentioned in the statute are citizenship, a bond, and payment of a fee, and that the Commissioner hence had no right to consider her character. Her counsel points to the fact that the statute in relation to licenses for motion picture theatres expressly authorizes the Commissioner to pass upon the location of the theatre and the character of the applicant, and argues that the omission of those matters from the criminal statute in relation to licenses to second-hand dealers dictates the conclusion that as to such licenses the Commissioner is limited to the fact of citizenship, the giving of a bond, and the payment of the fee.

The court cannot believe that there ever was any intent so to limit and fetter the Commissioner’s action and discretion. A Commissioner with no more power and discretion than that would be a useless figurehead, and under such a rule the system of licensing would become, not a protection to the public, as it obviously was designed to be, but a dangerous delusion and a snare, because it would create the impression that there had been investigation as to the fitness of licensees when, in fact, there had been no such investigation.

Implicit in the fact of requiring a license there is, I think, not only an authorization but a command to take reasonable steps to see that the applicant is a fit and proper person to engage in the licensed business.

Of course, the Commissioner has no power to declare any legislative policy or to create the standards which must govern the grant of a license. He may only apply the policy declared and the rules and standards laid down in statute and ordinance. But it is not essential that the rules or standards be set forth in the statute in express terms. It is sufficient if they be clearly implied when the statute is read in the light of its history and purpose; and I think that the requirement of a license is itself a legislative declaration that the business for which the license is required is to be subject to some regulation and that only those may engage in it whom the Commissioner thinks proper. The Commissioner’s discretion doubtless is not entirely unfettered, but there certainly is nothing arbitrary or unreasonable in his saying, as he in effect has said here, that he will not license people who have been thrice convicted of crime and who lie about their convictions in their application for a license.

The court concludes, therefore, that the Commissioner here acted within the scope of his legal authority and that his action was not arbitrary or capricious. They relate to the revocation of barber’s licenses and rest upon statutory provisions not applicable to this case; and there is quite a difference between revoking a license and refusing to grant one. The court also add that the obiter comment upon seems to me to be a misinterpretation.

The court held that the proceeding is accordingly dismissed.

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