(dissenting). Petitioner seeks an order in the nature of mandamus directing the issuance of an owner’s racing license to him. The statute presently governing the issuance of such a license does not require a hearing or the filing of formal findings to sustain a refusal to grant such an application.
I adopt without reservation the excellent general statement in the majority opinion relating to the sweeping powers vouchsafed an administrative officer in passing upon an application for a license when, as here, there is no requirement for granting an applicant a hearing. It would seem that the broader the legislative grant of power to an administrative agency the narrower the margin for judicial review. And, as will he developed, it is evident that the Legislature designedly gave the Bacing Commission as generous a delegation of licensing power as was possible.
I also accept the majority’s particular conclusion that, meager though our area of review may be, if the proof in the 1949 proceeding is efiminated there remains no other evidence to sustain the Bacing Commission’s determination. But I think a fair and logical extension of this reasoning would dictate a further particular conclusion — that if the commission had the right to consider and did consider the proof in the 1949 proceeding, such proof was more than ample to justify its refusal to issue a license to petitioner.
At the 1949 hearing evidence was presented, through certificates of incorporation, showing that petitioner was a stockholder and associated with certain persons in several corporations organized for the primary purpose of betting on horse races, and in one instance operating a gambling casino. These business associates of petitioner were identified as book-makers by two police officers and by a special investigator. The police officers also testified that these associates and petitioner were reputed to be members of a group that bet on fixed races. Petitioner, although afforded the opportunity and represented by *83able counsel, did not choose to cross-examine the police officials; nor did he call any of his close business associates to deny that they were book-makers. Upon this very proceeding he contents himself with a conclusory denial that he “ ever associated, at least knowingly, with * * * bookmakers ”.
The commission is expressly authorized by statute to refuse a license to an applicant who in the past has “ consorted or associated with bookmakers, touts, or persons of similar pursuits ” (§ 9-b; L. 1951, ch. 324). The first of the Commission’s two basic findings was that petitioner had consorted in 1949 with book-makers and persons of similar pursuits. Only on a clear and convincing showing that the commission had exercised the unusually broad powers entrusted to it by the Legislature arbitrarily, unfairly or capriciously, may this court disturb its determination (Matter of Marburg v. Cole, 286 N. Y. 202, 208, and other authorities cited in majority opinion). Surely, if the commission had the right to consider the proof presented at the 1949 hearing, we could not say that its determination that petitioner had consorted with book-makers was reached arbitrarily, unfairly or capriciously — not even if it had been made on much weaker proof than was in fact adduced before the joint board.
It might be well at this point to dispose of the contention that the commission arbitrarily flouted the Court of Appeals decision in Matter of Fink v. Cole (302 N. Y. 216) as in so doing it will also be established that the commission did in fact consider the evidence in the 1949 proceeding and did not limit its consideration only to the joint board’s dissolved decision. The commission, as it alleged in its answer, considered anew the proof presented at the 1949 hearing, and the record also shows that the commission “ independently reviewed the facts ”.
Of course, if the commission had merely presumed to reaffirm, reinstate or revitalize the extinguished decision of the extinct joint board, and no more, its action would be arbitrary and capricious and constitute a flagrant disregard of both the opinion and decision of the Court of Appeals. In fact, irrespective of any court decision striking down the joint board and its determination, the commission could not abdicate to anyone else its ultimate statutory responsibility of determining whether an applicant should be granted a license. However, in stating it had reaffirmed the joint board’s decision the commission clearly meant that it had considered the evidence presented to the joint board and had come to the same conclusion. And so it is evident that the commission did not rest its determination in 1954 on the *84abrogated decision of the joint board, but rather on the evidence painstakingly produced before that board.
I really part company with the majority only on its assumption that in Matter of Fink v. Cole (302 N. Y. 216, supra) the Court of Appeals not only nullified the 1949 determination of the joint board, but contemporaneously obliterated for all purposes the proof taken at its hearing. Essentially this is also the position of petitioner. His lawyer argued before the commission that the proof taken in 1949 “ had been entirely wiped out
In basing its decision on the ground of a constitutional relinquishment of legislative power to a private corporation, the Court of Appeals never had occasion to consider the fairness of the hearing accorded the petitioner or the nature of the evidence adduced at that hearing. The joint board’s determination was cancelled for technical reasons that never touched and had nothing whatsoever tó do with the quality or quantity of the evidence presented at the hearing or with the fairness of the hearing. To say that such an ultimate decision also cancels out the proof adduced at a hearing is just as illogical as to hold that the condemnation of a dangerous building would also require the destruction of usable furniture contained in the building.
For in passing upon this 1954 application by petitioner the commission was entitled to consider relevant information from a variety of sources (Matter of Agoglia v. Mulrooney, 259 N. Y. 462, 465; Matter of Barresi v. Biggs, 203 App. Div. 2, 6; People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194; Matter of Stachura v. O’Connell, 271 App. Div. 162). “ It might conduct its investigation in any manner it saw fit ”. (Matter of Stachura v. O’Connell, supra, p. 164.)
In Matter of Agoglia v. Mulrooney (259 N. Y. 462, supra) the petitioner had sought to compel the issuance of a cabaret license through a peremptory writ of mandamus (the former equivalent of this type of article 78 application). The police commissioner, in an opposing affidavit, made some statements based on information and belief about the general character of the neighborhood and also stated his belief that the premises sought to be licensed were likely to become a breeding place for crime. He relied on two reports from two commanding officers of the precinct in which the proposed cabaret was to be located. The only statement he made about these reports was that they recommended disapproval of the application. The reports were not in the record nor was there any further reference to any portion of *85their subject matter which might tend to provide some probative basis for the precinct commanders’ conclusions. Nevertheless, in reversing the order granting a motion for a peremptory order of mandamus, the Court of Appeals referred to these reports as part of the basis upon which “ the refusal of the Commissioner of Police to issue the license can hardly be said to have been capricious or unreasonable ” (p. 465).
The commission, it would appear, could have denied petitioner a license upon adequate proof submitted only in the form of investigators’ reports — provided the substance of such reports was so preserved and presented that a reviewing court could evaluate the evidence upon which the commission acted. Its investigators could have questioned the witnesses who testified at the 1949 hearing, examined the documents considered by the joint board and then submitted reports confined entirely to facts elicited in the 1949 hearing; and the commission could have acted ex parte on the basis of such reports. In such event petitioner would have been afforded less protection, by all juridical concepts, than he was given here — namely, the confrontation and cross-examination of witnesses, and the presentation of proof on his own behalf.
It will be granted that were petitioner entitled to a hearing on his 1954 application the commission could not take the proof in the 1949 proceeding, no matter how carefully it studied and considered such proof, as a substitute for a full and fair hearing. But, to repeat, petitioner is not entitled to another hearing on his 1954 application. Let us assume that petitioner in the course of a trial resulting in a reversal had made damaging admissions revealing himself as unfit to be given a racing license. The reversal would not destroy all of the evidence in the wake of the vacated judgment; and the commission could take cognizance of such testimony in passing upon an application for a license.
Having independently found on competent and adequate proof that petitioner had consorted with book-makers in 1949, the commission went on to consider his counsel’s assertion that he no longer was consorting with persons of such pursuits. At Special Term the commission stated that it had conducted two investigations since 1949 that had turned up nothing detrimental to petitioner’s character in the subsequent years. Nevertheless, as stated in the chairman’s affidavit, the “ Commission did not regard the mere passage of the scant few years since the court proceedings with respect to the 1949 application as exculpating the petitioner’s association with bookmakers and persons of similar pursuits as borne out by the proof before the Commis*86sion.” TMs was the second essential finding made by the commission.
We must appraise the fairness of the commission’s action against the background of the applicable statutes, which have been fully set forth in the majority opinion.
At first reading this might appear to be a very harsh law. A oerson may be denied a license if he merely consorts with bookmakers or persons of similar pursuit. There need be no showing of any association for illicit purposes or that the applicant participates actively or actually in book-making or allied activities. And a past infraction may forever debar him.
However, the Legislature clearly intended to adopt such stern measures to “ insure that racing in this state was properly and honestly conducted ” (People ex rel. Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31, 34). The legislative purpose can best be appreciated in the setting of the successive efforts to curb by statute the potential for corruption and venality in unregulated horse racing. Generations ago the courts of this State construed laws that even then were aimed at eliminating the evils that defiled the sport and that were “ intended to guard and restrict it [horse racing] so as to prohibit the abuses that had hitherto existed ” (Grannan v. Westchester Racing Assn., 153 N. Y. 449, 462).
From such sordid experience the Legislature evidently found that corruption may flourish when gamblers who bet on the results of horse races consort with persons who have some control over the running of the horses. And it designedly set a standard of conduct for horse owners as rigid as Caesar set for his wife.
For example, apparently finding there was not as great an exposure to rascality in the conduct of harness racing, the Legislature empowered the Harness Eacing Commission to refuse to issue or to revoke a license only for more serious, commonly understood transgressions, such as conviction of a crime involving moral turpitude, actually engaging in bookmaking or illegal gambling and other well-defined violations of racing rules and regulations (L. 1940, ch. 254, § 41-a, as added by L. 1953, ch. 391, § 8, as last amended by L. 1954, ch. 510, § 5, eff. April 16, 1954). But in the boxing sport, with a history of corruption paralleling that of horse racing, the licensing statute contains provisions quite similar to those which must govern the Eacing Commission. It provides, among other things, for suspension, revocation or refusal to renew or issue a license if *87the applicant consorts or has consorted with “ bookmakers, gamblers or persons of similar pursuits ’ ’ (L. 1920, ch. 912, § 17; as last amd. by L. 1952, ch. 666, § 15, eff. April 14, 1952).
Here again the evils to be guarded against give some indication of the dimensions of the discretion granted the commission by the Legislature. And here again there is involved the initial issuance of a license and not a revocation with all of the consequent dislocations.
The Legislature has given the commission the power to refuse a license if the applicant is not a person whose participation “ will be consistent with the public interest, convenience or necessity and with the best interests of racing generally ”. (§ 9-b, subd. 2.) This is designedly a broad grant.
An owner of racing horses, who presumably has the power, to some extent at least, to control the outcome of races, is a magnet for all the undesirable elements who circle the sport. In the circumstances it is not for the courts to say that the commission acted capriciously or arbitrarily in holding that five years of good behavior is not sufficient earnest that petitioner will be able to shake off old associates who may whisper corrupt proposals.
The caveats sounded in Matter of Perpente v. Moss (293 N. Y. 325) and Matter of Newbrand v. City of Yonhers (285 N. Y. 164), amply quoted in the majority opinion, have not been disregarded here. In this case plaintiff had a full hearing on his associations prior to 1949. He was not entitled to a hearing on his 1954 application, but he was entitled to a fair consideration of his application by the commission. This he was given. His lawyer was heard at great length by the full commission, and his application was refused on the ground that he had consorted with book-makers in 1949 and that five years was not a sufficient “ exculpatory ” period. For the first finding the commission considered and relied on the proof in the 1949 hearing. For the second it relied on its judgment and experience, but only after two separate investigations had been made of petitioner’s conduct in the years subsequent to 1949.
While the commission should have been more explicit in notifying petitioner of the grounds for its refusal of his application, petitioner was in nowise prejudiced by this omission. He and his counsel were at all times aware that the only grounds being considered by the commission for refusal of his application were the two mentioned in the preceding paragraph.
*88The order of Special Term should be reversed, the application of the petitioner denied and the proceeding dismissed.
Peoic, P. J., and Cohn, J., concur Avith Bastow, J.; Botein, J., dissents in opinion in Avhich Breitel, J., concurs.
Order affirmed, Avith $20 costs and disbursements to the respondent.