(dissenting).- The trial court concluded the director of public safety acted arbitrarily and abused his discretion in refusing the application because the affidavits relied upon referred solely to hearsay evidence, and therefore found against him.
This court, however, decides in the majority opinion:
“The hearsay character of the information gathered by a licensing official in the performance of his duty does not necessarily invalidate the information as a basis for administrative action.”
I subscribe to this determination and must therefore conclude the trial court committed error in deciding as it did.
I am not in accord'with the conclusion of the majority, however, as the Legislature in this instance gave the city the right to adopt an ordinance regulating the subject matter and the city, in turn, placed the administration of such matters in the hands of the License Bureau in the department of the director of public safety, giving him full power to consider the applications for a license and to determine the qualification of the applicants.
There would impliedly be a duty on him .to withhold such license with respect to such activities which inherently or potentially would detrimentally affect the public welfare, health and safety of the city. If the licensing authority cannot examine into the character of the applicant to be *280licensed, then the system affords little regulation or protection to the municipality involved.
The test is whether or not there has been a reasonably bona fide exercise of the discretion granted by the legislative authority, as distinguished from fraud or arbitrary action. There is a presumption of proper motive and valid reasons underlying the directive of the appellant, and we are not obliged to consider the evidence upon the technical rules which would be applicable to the exclusion of evidence in jury trials. Cf. Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U. S. 134, 60 S. Ct. 437, 84 L. Ed. 656 (1940).
In Bonserk Theatre Corp. v. Moss, 34 N. Y. S. 2d 541 (Sup. Ct. 1942), the court held the issuing authority did not abuse its discretion in refusing the license of a burlesque show on the ground that persons through whom the corporation operated had in the past persisted in causing or permitting the production of shows which had been preponderantly offensive to public morals and decency, and that the individuals on other occasions had failed to keep their promises that their burlesque shows would be conducted decently.
Basing the appellant’s actions upon the standards so pronounced, I think there is ample in the record to indicate that decency and good order would require the action taken and his decision is sufficiently supported by the record. The character and past conduct of the applicant and its officers, and especially their past exhibitions, reveal conflict with the law and successful criminal prosecutions against them because of the character of the shows which they exhibited and conducted.
I think the director of public safety was justified in his denial of the application and I would reverse the judgment below and sustain the appellant.
For affirmance — Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan—6. For reversal — Justice Wachenfeld—1.