108 W. Va. 111 | 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 Pexrode and Wilson Deadrick, council, of the town of Petersburg, Grant uounty, 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
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, 87 W. Va. 137, the Court said: “Prior to the amendment * * * such licenses were issuable only when authorized by the county court; now * * * they are issued by the county clerk upon proper application filed with him, but revokable by the county court for good cause shown upon petition and notice to the licensee, and an opportunity to be heard * * *. And prior to the amendment, when the business was to be carried on in an incorporated city, town or village, such license was permitted only when authorized * * * by the council or license court thereof, as well as by the county court.” State ex rel. Kelley v. City of Grafton, 87 W. Va. 191, held: “Since the enactment of chapter 102, Acts 1919, the concurrent discretionary power which the law theretofore had conferred upon a municipal corporation in the granting of licenses for acts or business to be done or carried on within its jurisdiction no longer remains, and, though the city council or other governing body may still require the state licensee to obtain a municipal permit or license, and pay a fee therefor, as a condition of the lawful right to do the act or carry on such business, yet it no longer possesses authority to refuse to grant such license upon the proper application therefor and tender of the requisite fee.” By chapter 143, Acts 1921, the council of a city, town or village is given “plenary power and authority therein * * * to
Tbe authorities, generally, bold 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 of Murphy v. People of the State of California, 225 U. S. 623, stated: ‘ ‘ That the keeping of a billiard hall has a harmful tendency is a fact requiring no proof, and incapable of being controverted by the testimony of the plaintiff that his business was lawfully conducted, free from gaming or anything which could affect the morality of the community or of his patrons. The fact that there had been no disorder or open violation of the law does not prevent the municipal authorities from taking legislative notice of the idleness and other evils which result from the maintenance of a resort where it is the business of one to stimulate others to play beyond what is proper for legitimate recreation. * * * As said in Booth v. Illinois, 184 U. S. 425, 429: ‘A calling may not in itself be immoral, and yet the tendency.of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the State thinks that certain. admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of
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.