150 S.E. 382 | W. Va. | 1929
Upon the petition of H. L. Flanagan, the circuit court awarded a peremptory writ of mandamus commanding Dr. Glen Moomau, mayor, L. L. Cooperider, recorder, and W. D. Trent, Eston Harmon, Fred Harmon, Wade Rexrode and Wilson Deadrick, council, of the town of Petersburg, Grant county, to issue to the petitioner a pool room license.
The answer and return of the respondents to the petition and alternative writ of mandamus, denied that Flanagan was a fit person to operate a pool room, and averred an established policy of the town, in the interest of public morals, to refuse *112
all applications for pool room licenses. As evidence of unfitness it is alleged and proved that Flanagan is delinquent in the payment of taxes to the town and has been convicted upon his own confession before a justice of assault and battery. Petitioner contends (1) that these facts are insufficient to show that he is not a fit person to operate a pool room, and (2) that (according to the decision in State ex rel. Hardman v.Town of Glenville,
Chapter 102, Acts 1919 (amending chapter 32, Code 1916) conferred upon the clerk of the county court authority to issue pool room licenses without specifically providing for the issuance of municipal license where the business is to be conducted in a city, town or village. Construing the amendment, in Bissett v. Town of Littleton,
The authorities, generally, hold that because of its non-useful character and harmful tendency the business of operating pool or billiard rooms may be prohibited by the Legislature in the exercise of its police power. 6 R. C. L. 207, 208, 220; 20 A.L.R. 1482; 29 A.L.R. 41; 53 A.L.R. 143; 63 L.R.A. 337; 41 L.R.A. (N.S.) 153. Holding that an ordinance of the city of South Pasadena, California, prohibiting the keeping or maintaining of any hall or room in which billiard or pool tables were kept for hire or public use, did not contravene the Fourteenth Amendment of the Federal Constitution, the United States Supreme Court in the case ofMurphy v. People of the State of California,
It does not appear that the no license policy of Petersburg has been embodied in an ordinance. But whether or not its governing body is, by virtue of sections 35 and 35a, Chapter 109 and Chapter 138, Acts 1921, vested with absolute discretion to refuse pool room licenses with or without an ordinance declaring such policy, the evidence of unfitness of the applicant is sufficient to support its action in the exercise of a reasonable discretion. The judgment of the circuit court is therefore reversed.
Reversed.