30 App. D.C. 291 | D.C. Cir. | 1908
delivered the opinion of the Court:
The question for consideration is whether the board has authority under the statute to refuse an application for the renewal of a barroom license for a hotel containing twenty-five chambers for lodging guests, because of the reputation of the premises or applicant as determined by the board. The act of Congress of March 3, 1893 (27 Stat. at L. 563, chap. 204), as amended by the act of May 11, 1894 (28 Stat. at L. 75, chap. 73), establishes an excise board for the District.
Sec. 2 of the act provides that it shall be the duty of the
Sec. 4 provides that every applicant for license shall file a petition, and prescribes what said petition must contain.
The first part of sec. 5 requires every applicant to file with his petition the consent of a majority of the real-estate owners and housekeepers on the side of the square where the proposed barroom is to be located, and defines a barroom. Then follows the proviso under consideration, which reads: "Provided, That any established hotel or tavern having twenty [now twenty-five] chambers for lodging guests shall always have the right to obtain for itself a license for a barroom on complying with the provisions of this act, and the petition in such case must be made by the owner or lessee of such hotel or tavern.”
The section next provides that after such applicant shall have obtained the consent aforesaid, and obtained a license, it shall not again be necessary for him to obtain such consent for a renewal of his license, unless the majority of real-estate owners and resident housekeepers aforesaid petition the board that “said barroom is not necessary and is objectionable.” The next and last proviso in the section reads as follows: “Provided, further, That upon a conviction of such licensee of keeping a disorderly or disreputable place it shall be the duty of said excise board to revoke such licensee’s license; but until such conviction such licensee’s license shall not be revoked or taken away from him.”
Sec. 13 provides “that any person having obtained a license under this act, who shall violate any of its provisions, shall upon conviction of such violation be fined not less than fifty dollars nor more than two hundred dollars, and upon every subsequent conviction of such violation during the year for which such license is issued shall be fined a like amount, and in addition to such fine shall pay a sum equal to twenty-five per cent of the amount of the fine imposed for the offense immediately preceding, and have.his license revoked; and in case of non
It is true, as contended by counsel for appellants, that the exercise of discretion by executive ofiicers acting within the scope of their authority will not be questioned by mandamus, but it is equally true that when such ofiicers exceed their authority, and act without warrant of law, mandamus will lie. United States ex rel. Daly v. Macfarland, 28 App. D. C. 569; Garfield v. United States ex rel. Frost, present Term [ante, p. 165].
It has become a common practice for Congress to amend bills by simply preceding the amendment with “Provided.” In fact, frequently independent legislation is engrafted on some bill by a resort to this expedient. Georgia R. & Bkg. Co. v. Smith, 128, U. S. 174, 32 L. ed. 377, 9 Sup. Ct. Rep. 47.
The language employed in the proviso, that every established hotel of twenty-five chambers shall always be entitled to a license, is devoid of all ambiguity. Nor do we think that the context in any way modifies its plain import. Had it been intended to merely exempt hotels from the provision in the first part of sec. 5 in respect to obtaining the consent of property owners and housekeepers, it would have been a very easy matter to have done so by the use of appropriate language. The requirement in the proviso, that “the provisions of this act” shall be complied with by the applicant for a hotel barroom license, is inconsistent with the contention that the sole function of the proviso is to excuse him from complying with one of the most material provisions in the' act. Had Congress intended this proviso to operate merely as exempting hotels from the provision immediately preceding, it is inconceivable that a compliance with all the provisions of the act should have been re
We see no merit in the contention of counsel for appellants, that “the only logical effect to be given to the proviso of sec. 5 is that it withdraws the ‘place for which a license may be granted or refused’ from the consideration of the excise board,” since the proviso expressly says that the petition in such case must be made “by the owner or lessee.”. It would be a very barren right if the statute contemplated a distinction between the place and the proprietor.
It appearing that the petition of the applicant was regular in form, and that all the requirements of the law had been satisfied, and it further appearing that the applicant had not been convicted of keeping a disorderly place, nor twice convicted during the preceding license year of violating the terms of his license, we think it follows that the duty of the board in the premises was a mere ministerial one, and that in refusing the application they exceeded their authority.
The order of the court below is therefore affirmed, with costs.
Affirmed.
