168 A. 912 | Vt. | 1933
By this petition, the plaintiff seeks to compel the defendants to issue to it a license to sell beer on its premises in the town of Derby. An answer was filed, and facts have been found by a commissioner appointed by a Justice of this Court pursuant to G.L. 2249. *10
We find, however, that the case is to be disposed of on a proper interpretation of the statutes. The town of Derby voted against granting licenses for the sale of malt and fermented beverages; and when this application was made to them, the defendants refused to grant it on the ground that the plaintiff's property was not such a hotel as is described in section 7 of No. 10, of the Acts of the Special Session of 1933; and on the further ground that, in view of the vote above referred to, they, the commissioners, did not want beer sold there.
By section 7, of No. 140, Acts of 1933, the control commissioners were required to grant licenses under certain conditions. But by section 5 of the act of the Special Session above referred to, this provision was so amended as to leave it to the discretion of the commissioners whether such licenses shall be granted or not. The original act was mandatory; the amendatory is permissive. And, while as we said in Walsh v.Farrington et al.,
Mandamus lies to enforce the performance of ministerial acts.Bankers' Life Ins. Co. v. Howland,
Moreover, an application for a mandate is addressed to the sound judicial discretion of this Court. Town of West *11 Rutland v. Rutland Ry. L. P. Co.,
The evils that may become incident to the sale of the beverages now made lawful, even, are or may become such as to involve the safety, morals, and peace of the whole community. Courts, therefore, should not, and this court will not impose upon a town a beer-shop which it has solemnly declared it did not want, and which its commissioners have decided it was unwise and inexpedient for it to have.
Petition dismissed with costs.