If the order revoking the license of the relator was an administrative act, no notice to him was required, but if it was an act done in the exercise of judicial power, notice and an opportunity to be heard were essential before he could be deprived of the right to carry on a lawful business.
The Greater New York charter provides that: "The actions, proceedings, authority and orders of said board of health shall be at all times regarded as in their nature judicial and be treated as prima facie just and legal." (L. 1901, ch. 466, § 1173.)
While it is difficult to see how all acts of the board of health can be "in their nature judicial," the legislature had the right to provide that they should be so regarded, and in view of its express command I fail to see how we can hold that the order of revocation was an administrative act. Notice was given in the only case involving the power to revoke that has been before us prior to the one now under consideration. (Metropolitan Milk andCream Co. v. City of New York, 113 App. Div. 377; 186 N.Y. 533. ) While summary action is often necessary in cases affecting the public health, still the danger from delay caused by giving short notice is less than the danger that may arise from action with no notice at all. The respondent should at least have had an opportunity to raise an issue as to whether he had ever been convicted by a court of competent jurisdiction of violating the Sanitary Code or to show that any judgment of conviction had been reversed or set aside.
Moreover, a license under the police power, as distinguished from the taxing power, involves the right to regulate but not to prohibit, and it cannot be exercised capriciously or arbitrarily. As the right to revoke is not expressly conferred, but is implied from the right to grant, the rule against arbitrary or capricious action applies with equal force to the revocation of licenses. One of the most effective safeguards against the arbitrary acts of public officials is an opportunity to be heard. The revocation of the respondent's license *Page 198 involved the destruction of his business which was useful, legitimate and profitable. Since the power to revoke is not expressly given, but is implied from the power to grant, I think the law also implies that notice must be given before an act can be done which involves such serious loss to the licensee. This involves the conclusion that the revocation of such a license as the one in question is in its essence judicial, independent of the statutory requirement that it shall be so regarded. I vote to affirm.
CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HISCOCK and CHASE, JJ., concur with HAIGHT, J.; VANN, J., reads dissenting opinion.
Order reversed, etc.