77 Va. 663 | Va. | 1883
Lead Opinion
delivered the opinion of the court.
The question for this court to decide in these cases is, Did the petitioners, when their application for license was refused by the county court, have a right to the remedy sought by them by writ of error to the circuit court ?
The act of the legislature under Avhich they sought their licenses is as follows: “ Any person who desires a license to sell by retail, or to keep a bar-room, shall first apply therefor to the commissioner of the revenue for the city or county, who shall assess them with the proper license-tax to be paid, and they shall then pay the amount of the said tax to the treasurer or other collecting officer, and take his receipt for the same, on the certificate furnished by the assessor, and shall present the said certificate so receipted to the court of the county or corporation in which it is proposed to conduct the business; and if the court be fully satisfied, upon hearing the testimony for and against the application, should any be offered, that the applicant is a fit person, and that the place of business is suitable and convenient, it
The only difference between this act and the act of assembly of 1879-80 is the substitution of the word “may” for the word “ shall,” when prescribing the duty of the county court in the premises. Acts of Assembly 1879-80,page 148, section 2.
It is contended in the argument here in these cases that the terms of the above act, providing for an appeal during the term of the county court, grants to the applicant an appeal of right to the circuit court, to he heard de novo ; and that a writ of error will not lie to the circuit court. Yeager’s Case, 11 Gratt. 655, is cited to sustain the proposition that before the act of assembly granting an appeal of right, as seen above, to the judgments of the county court in such cases, the judgment of the county court was final, and not subject to review in any appellate tribunal. The act of 1849, construed hy the opinion of this court in that case, contained provisions which are not found in the present law, to-wit: “ If the court he of opinion that the applicant is sober and of good character, and will probably keep a house orderly, useful, and such as the law requires, it may grant such license. If such application he refused, the refusal shall he entered of record, and a license shall not he granted to the applicant before the next May term, unless by a
The same language is employed in the act of 1840. And the provisions of the act of 1849 indicated, as we have seen, no change of the policy, hut contains similar provisions, and in construing the laws, this court said: “With this view of the nature of the authority given to the county court, we cannot see how, when they have heard the application, and in the exercise of their discretion have pronounced a judgment of refusal against it, the superior court can undertake to revise the judgment by means of a mandamus, without running counter to the law on the subject, as settled by numerous decisions of the courts, as well in England as in this country.” And this court, in that case, declared that by the act of 1849 the legislature intended to clothe the county courts with a discretion in the matter of granting licenses for houses of entertainment, in the
This decision was rendered in the year 1854, and the legislative intent remaining the same, the law remained unchanged down to the act of 1869-10, under which the case of French v. Noel was decided by this court. 22 Gratt., 454. And in that case the action of the county court was held to be final and conclusive. That the said county court had a discretion which could not be reviewed. That case, however, was a case of prohibition to prohibit the circuit court from reviewing and reversing the order of the county court granting a license to the applicant, upon the motion of a stranger. Still, while the opinion is very meager, we are left to conclude that the ground of the decision was the same as that upon which the decision in the Yeager case rested—that the discretion of the county court once exercised could not be reviewed at the instance of any person, but was final and conclusive, whether granting or refusing the license.
Before the act of 1869-10, under which the case of French v. Noel was decided, the county court was constituted of justices of the peace since 1850, elected by the qualified voters from each magisterial district in the county. But since that time, under the constitution now in force in this state, and which was ratified in the said year 1869, the county court has been held by a single judge, not elected by the people, but by the legislature; and in the acts of the legislature subsequently passed, we find the law changed from its ancient form in this respect, and the language with which we have now grown familiar in this opinion—which vested an unlimited discretion in the county court, which left that court to do what it might think fit, or be of opinion to do— has disappeared. We find the law amended so as to provide that, “upon said court being satisfied, after hearing testimony
The word “may” is sometimes construed as permissive and sometimes as mandatory. It is always construed as mandatory when a positive duty is imposed—when third persons have a claim that the act shall be done. When a statute confers an authority to do a judicial act in a particular case, it is imperative on those so authorized to exercise authority when the occasion arises. In such cases the word “may” is not used to give a discretion, but to confer a power upon the court, and the exercise of such power depends not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises. Sedgwick on Construction of Statutes, 375.
It is not an arbitrary discretion vested in the judge of the court, hut a judicial discretion, subject to he reviewed in an appellate court. This question has been several times before this court since the change in the policy of the legislature which we have considered above. ( In the case of Leighton v. Maury, reported in 76 Virginia Reports, page 865, the act of assembly was the subject of elaborate review. In that case the court says: “ When the legislature made it mandatory upon the county court to grant the license in a given case, and authorized an appeal in case of refusal, it made it equally mandatory upon the circuit court to grant the license; and if the latter court renders an erroneous decision it is difficult to understand why the party aggrieved may not have redress in this court.” Such redress, it is evident, could not be had here except under the general law, for there is no other law giving this court any concern with the subject. And if by the general law this case may he appealed from the circuit court, why under the general law may this case not he appealed from the county court to the circuit court ? It is the same case in each court, it concerns the same subject matter and the same party. If appeals lie from the county court to the circuit court to correct erroneous judgments, why not in this case if there is an erroneous judgment ?
But it is contended in the argument that when the statute gave the right of immediate appeal to the circuit court, either in term time or vacation, it took away by implication such right of appeal under the general law upon errors assigned, and that it also abolished the jurisdiction of this court to review the circuit court in the premises, a jurisdiction which had been repeatedly taken and held by this court in similar cases; and that no express words of revocation were necessary; that the granting the
This court, in passing upon this question in the cases of ex parte Bibb and ex parte Porterfield, said, speaking of this right of immediate appeal, and also of the right to the appeal upon errors assigned: “The petitioner had two remedies by which to correct the supposed errors of the county court. He might, under our general law respecting appeals, writs of error and supersedeas, (Code 1873, chapter one hundred and seventy-eight, section two,) have, upon hill of exceptions taken at the trial in the county court, applied to the circuit court, or judge thereof in vacation, for a writ of error, or, under the act of 1879-80, (exactly the same law as the present upon this point,) he had an appeal of right from the judgment of the county court to the circuit court. The parties, therefore, had two remedies, writs of error and appeal of right. Though they differ in their nature, the object in each is the same. The party complaining had a right to resort to either for redress of alleged grievances.” This case has not been reported. And this court held the same upon the question of jurisdiction in the case of Chalmers and others v. Funk & Son, upon appeal from the circuit court of Roanoke county, at the Wytheville term, 1882, reported in 76th Virginia Reports, page 717.
In the case of Leighton v. Maury, supra, this court maintained the same ruling. That case was upon appeal by the applicant for license, and the court said: “ Statute declares that a person who is a party to any civil case, in which there is a final judgment, decree or order, may present his petition for an appeal, writ of error, or supersedeas. It will be understood, of course, that when a mere pecuniary matter is involved, the subject of controversy must he $500 or upwards. This, however, is not a case of that sort; no mere pecuniary matter is involved. It is a final j udgment or order in a civil case touching the exercise of a right or privilege conferred by an act of the legislature. It is covered by the express terms of the statute already
Now, we will remark here, that the same reasoning which maintained the right of appeal or writ of error from the circuit court, under the general law, applies with equal force to the right of appeal or writ of error to that court from the county court. In the same case this court said: “Whether the person who enters himself a party defendant, and resists the application, is equally entitled to an appeal, is a question we are not called upon to decide here.” But, proceeding in the case, the court said: “Another question is, however, presented for our consideration. As has been already stated, William F. Maury entered himself as a defendant both in the county and circuit courts, and opposed the application for a license. * * * * It was a matter in which he was personally interested, and one in which every citizen is more or less concerned. Mr. Maury having been a party on the record in the circuit court, it was competent for him to appear and defend in this court, and he ought properly to have been served with process upon the appeal, writ of error and supersedeas. * * * In all these cases, a person making himself a party, however, renders himself liable for costs, and may recover costs as in other cases.”
So that the court in that case does substantially declare the right of a person who contests the granting of the license to appeal, for it would seem that if a person once of right becomes a party in interest, he is included in the general terms of the statute concerning appeals. But this question coming directly before this court in the case of Ailstock v. Page, ante page 386, this court overruled the said Leighton case on that point. In the said case of Ailstoek v. Page, the court said:
The application for a license had been granted in that case by the county court, and the contestant, upon the authority of the Leighton case, supra, had obtained a writ of error from the circuit court, and in this court the case was prohibition against the circuit court upon the petition of the applicant for the license; and this court held that the contestant had no right of appeal, or writ of error and supersedeas, and so- much of the Leighton case as was in conflict with that decision was declared to be overruled. That case did not concern, nor in any way apply to, the questions in this case. That was a case where the contestant appealed to the circuit court, and the applicant was not aggrieved by the order of the court, as his license had been granted. This is a case, as we have seen, where the applicant was denied his license, and applied to the circuit court for a writ of error and supersedeas, which was denied. And yet it is earnestly contended in argument here against the applicant, that the case of Ailstock v. Page determined the question here. Nothing concerning the applicant was within the submission, as we have seen in that case, and this court expressly declared its purpose to decide only one question, and that the question whether the contestant could appeal. We think the court in the Ailstock case rightly decided that the contestant had no right of appeal. There is no authority in the statutes for the contestant to make himself a party; it is not a case in which he has an interest such as entitles him to be made a party to the case, and thus to come within the terms of the statute. And this view is, we think, sustained by the case of the Supervisors of Culpeper v. Gorrell, 20 Grattan. In that case, when Joseph B. Gorrell and seven others came in to object to the public con
In the Ailstock case, we might in like manner say as the court said in that case, the parties seeking to appeal were not parties; their mere offer to become so did not make them parties ; they were not entitled to be made parties. Any indirect interest they may have had in the subject as citizens, tax-payers, and land-holders of the county was not sufficient to make them parties ; there is no authority in the law to make them parties, and without such authority they cannot be made so. And this court correctly held in the said case of Ailstock v. Page that they had no right to ask for, and the circuit court no right or jurisdiction to award to them, a writ of error and supersedeas.
But that case does not apply to or affect this case. As we
Dissenting Opinion
dissented.
The judgment is as follows:
The court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the
Similar judgments were rendered in ex pqrte Stone and in ex parte Wilson.
Judgments reversed.
Concurrence Opinion
concurred in the opinion.