88 P. 991 | Cal. Ct. App. | 1906
This is a proceeding in mandamus to compel the respondents, the board of police commissioners of the city of Los Angeles, to issue a permit authorizing the city clerk to issue to petitioner a license, upon the payment of the legal fee therefor, to carry on and conduct a poolroom and pool-tables at a certain street number in said city.
It appears from the conceded facts set out in the petition and return that an ordinance is in force in said city making it unlawful to carry on certain kinds of business in said city without first procuring a license so to do, and among the kinds of business so specified is that of conducting poolrooms *657 and operating pool-tables. It is further ordained that no license to carry on certain kinds of business, among which is that of conducting a poolroom or operating a pool-table, shall issue, except a permit therefor be first had from the board of police commissioners; and that said board can only issue such permits upon petition of the party intending to operate the same, accompanied by consent of a majority of the property owners within the block where the permit is sought. It is further provided by section 3 of said ordinance, that said board is empowered to make such rules and regulations for the granting of permits as may be proper or necessary for the maintenance of public order, the promotion of public morals and the orderly conduct of such places, or the better enforcement of the provisions of the ordinance.
Petitioner's application for a license was denied by the board for the reason that the place mentioned in said application is located in a part of the city inhabited by a class of people which would render a poolroom, if established there, a resort for dissolute and objectionable persons, and in the judgment of the board the issuance of such permit would injuriously affect public health, peace and morals. Petitioner does not question the legality of the ordinance or ordinances in any regard, save as to the provisions of section 3 thereof, and as to which he contends that the power of regulation therein contained gives the right to prohibit certain kinds of business which he claims cannot be exercised except in relation to nuisances per se. "The power to regulate or prohibit . . . not only includes nuisances, but extends to everything 'expedient for the preservation of the public health and the prevention of contagious diseases.' " (Ex parte Shrader,
Petitioner further claims that the ordinance is invalid because it vests an undefined and unrestricted discretion in a board. This cannot well be said of an ordinance which contemplates an exercise of discretion only after determining certain facts upon which their judgment is based; for all regulations and rules of the board authorized by the ordinance are required to be directed to questions of public safety, health and morals. The power to exercise the discretion reposed in the board by the ordinance is uniform as to all persons who may apply for a license to engage in that particular business, and it is the effect of that business in the locality which determines its tendency as affecting the subjects of police regulation. It needs no argument to establish the proposition that a public place of amusement, or any other place conducted as an inducement for the assemblage of a crowd of people, may be kept or maintained in certain localities under such circumstances as to render the same dangerous to the public safety. The safety of the people is the supreme law and justifies legislation pertaining to the public welfare, health and morals. (Ex parte Drexel,
Holding as we do the right of the city under the charter to enact the ordinance under consideration, a court will not interfere with the discretion reposed in a proper board or tribunal, but will assume that official duty has been properly and lawfully performed, in the absence of positive proof to the contrary.
In addition to what has heretofore been said, this writ should be denied upon another ground. The return and answer of respondents show, and its truth is admitted, that there is another action pending between the same parties for the same cause. This constitutes a good defense under sections 430 and 433 of the Code of Civil Procedure by way of a plea in abatement. This court and the superior court have concurrent jurisdiction in proceedings in mandamus. The return and answer of respondents show that heretofore petitioner commenced *660
an action in the superior court of Los Angeles county, wherein the respondents to this proceeding were respondents; that the petition so filed in said court is identical in language with the petition in this case; that the answer therein filed by the respondents is the same in all respects other than as to the special plea in abatement; that the superior court proceeded to the trial of said action upon the merits and denied the writ, ordering findings and judgment for the defendants. The identity of the subject matter of the two suits cannot be questioned. A judgment in the proceedings in the superior court, when final, could be pleaded in bar of this action as a prior adjudication (McCormick v. Gross,
Writ of mandate denied.
Gray, P. J., and Smith, J., concurred.