In re Grant

140 P. 226 | Utah | 1914

Lead Opinion

McCAPTY, O. J.

(after stating the facts as above).

1 Counsel for petitioner, E. W. Allen, concede at the threshold of their discussion of the case that “it was for the legislature to say that in small communities the city council have the right to grant and revoke licenses without appeal,” and that “it was especially their right that where in great communities, when large establishments are built up under a liquor license, that district courts grant, and upon a trial and judgment, have the power to revoke.” The important question, therefore is: Does the appeal suspend, or, more correctly speaking, temporarily vacate, the judgment of the district court, and operate as a bar to the prosecution of the licensee, his agents and employees, for the selling of liquors during the pendency of the appeal % The great weight of authority seems to be that where, as in the case at bar, the judgment is self-executing, and no act of a ministerial officer is necessary to make it effective, an appeal does not suspend or otherwise stay the force and effect of the judgment.

In 20 Ency. Pl. & Pr. 1244, it is said:

“Under the statutes regulating the filing of supersedeas bonds, it is held that as a supersedeas has the effect of merely staying proceedings, without destroying the force and effect of the judgment, and leaves the proceedings in the condition in which it finds them, and as a sell-executing judgment requires no proceeding for its enforcement, there is nothing upon which a stay bond can operate in the case of such ®. judgment.”

In Elliott, App. Pro. section 392, it is said:

“"Where a judgment or decree executes itself, that is, where no act of a ministerial officer is necessary to put it into effect, the supersedeas does not alter the state of things created by the judgment from which the appeal is prosecuted. This doctrine is strikingly illustrated by the case wherein it was held that a judgment suspending an attorney from practice executes itself, except as to costs, and the granting of a supersedeas only suspends the right to enforce collection of costs, and does not allow the attorney to practice pending the appeal.” (Citing Walls v. Palmer, 64 Ind. 493.)

Tbe cited case involved tbe question of whether an attorney, who bad been disbarred and his license revoked by the circuit court, was entitled to practice his profession during the time the cause was pending on appeal to the Supreme Court. In the course of the opinion the court said:

“But it is urged that the appeal and supersedeas, ... by staying the judgment of suspension, has the effect of restoring the petitioner to his rights as an attorney and counselor during the pendency of the appeal. ... To give them that effect, and grant the prayer of the petitioner, would be to "reverse the judgment of the suspension by a writ of mandate before the appeal is judicially decided. The effect of the appeal and supersedeas is to stay the judgment of suspension as it is, and prevent further proceedings against the petitioner. It does not reverse, suspend, or supersede the force of the judgment. That remains in all respects the same. The judgment itself requires no further execution than its own terms; it executes itself, except as to the collection of costs, which is stayed by the appeal and supersedeas.”

In Black on Intoxicating Liquors, section 196, the author

“The revocation of a license, under due proceedings, absolutely extinguishes the license; and certiorari taken to such action is no bar to a prosecution for sales made either during the pendency of the writ, or of an appeal from a judgment affirming the action of the board.” (1 Woollen & Thornton, Intox. Liq., sec. 456.)

Padgett v. State, 93 Ind. 396, is a case in. wbicb the board of commissioners denied Padgett a license to sell liquor. He prosecuted an appeal to the district court, and succeeded in obtaining judgment that he was a fit person to receive a license. The remonstrators appealed from the judgment of the circuit court, and filed the proper appeal bond. It was there contended, as in the case at bar, that the judgment was ineffective and inoperative during the pendency of the appeal. The court said:

“The statute . . . provides that, ‘when an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings,’ and if the act of taking out a license is a proceeding on the judgment, then the appeal stayed the appellant from obtaining the license. We do not regard the issuing of the license as a proceeding on the judgment within the meaning of the statute. One reason for this conclusion is that the judgment is self-executing. The entry of the judgment entitles the applicant to his license without any other proceedings on the judgment. . . . There is, indeed, no provision for enforcing obedience to the judgment by process, and none is needed, for the judgment enforces itself. . . . There is no necessity for any process; there is no property to he seized by it; no wrongdoer is to be ejected from an office, or from property, or anything of that kind; all that can possibly be accomplished is effected by the judgment itself.”

Tbis question was involved in the case of Neuman v. State, 16 Wis. 112, 45 N. W. 30. In the course of the opinion the court says:

“The more serious question is whether the pendency of the writ of certiorari, and the subsequent appeal from the judgment thereon to this court, operated as a bar to the prosecution of Neuman for selling during the time which would have been justified by the license, had it not been so revoked.”

The court after discussing the question says:

“It follows, from what has been said, that neither the pendency of the certiorari, nor the appeal from the judgment affirming the order of the village board, and quashing the writ, operated as a bar to the prosecution for the several offenses of which Neuman was convicted in this action.”

The authorities seem to quite uniformly hold, that in the granting and refusing of licenses to sell liquors much is left to the discretion of the court or board charged with that duty, and in most jurisdictions the law does not require the same strictness as to proof and procedure that obtains in actions or special proceedings generally. The object being the revocation of a privilege rather than punishment, the authority or tribunal vested with this power “are not required to take the formal proceedings essential to form a basis of a judicial decision affecting 'liberty, or property,” but the proceedings may be summary. Black, Intox. Liq. section 194.

Section 10, chap. 106, Laws Utah 1911, among other things, provides:

“The district courts of the several counties in which cities of the first and second class may be situated, city councils of cities of the third class, board of 'trustees or board of county commissioners, for violation of any of the provisions of this act or any ordinance, or .for any other good canse, . . may revoke a license granted within the city, town or county, as the case may be. Nor the purpose of carrying out the provisions of this section, the district court, city council, board of trustees or board of county commissioners, as the ease may be, shall have power .to issue or cause to be issued subpoenas and to compel the attendance of witness and to administer oaths. . . . The district courts of the several counties wherein are situated cities of the first and second class shall make and enforce rules of procedure and practice upon application for license, hearing of protests upon applications, and the revocation of licenses so that such matters muy he speedily tried and determined in accordance with justice and right.” (Italics ours.)

It will thus be seen that the legislature, by this-enactment, intended to give and has given the legally constituted authorities whose duty it is to grant, and in proper cases revoke, licenses, a broad discretion in such matters. A copy of the findings of fact made by the court, and which form the basis of the judgment revoking the license in question, is at-tacbed to and made a part of tbe affidavit upon wbieb tbe citation under consideration was issued. Excerpts from tbe findings of fact are set forth in tbe foregoing statement of tbe case. These findings, which are presumed to be supported by tbe evidence, furnish a good illustration of tbe wbolesomeness of tbe rule giving tbe court, board, or city or town authorities a broad discretion in matters pertaining to tbe liquor traffic. Tbe record presented by affiant E. W. Allen in tbe affidavit upon which tbe citation herein was issued shows that be, during tbe time be was engaged in tbe sale of intoxicating liquors under bis license, persistently and continuously violated tbe statute regulating and restricting tbe sale of intoxicating liquors. By thus referring to tbe portions of tbe record of tbe main case which are incorporated in and made a part of tbe affidavit under consideration, we do not wish to be understood as expressing an opinion respecting tbe merits of tbe cause or any question presented by the appeal. Our only purpose in inviting attention to these matters is that they furnish tbe strongest possible argument that can be made in support of tbe doctrine bolding that an appeal from a judgment revoking a liquor license does not destroy tbe force and effect of tbe judgment pending tbe appeal.

As stated by counsel for B. F. Grant, chief of police, to whom the citation in question was issued, in their brief filed herein: “If counsels theory is correct, that tbe appeal operates in such a manner as to permit the licensee, Allen, to continue the sale of liquors under bis license, then it must be upon tbe theory that such license is reinstated and has its full force and effect. It takes no argument to show that this in effect nullifies and makes of no effect tbe judgment of court revoking tbe license. At least this would be true during tbe time when said case is on appeal.” In other words, the appeal would have tbe effect of temporarily vacating tbe judgment. As we have pointed out, tbe great weight of authority is to tbe effect that a judgment in this class of cases is self-executing. Therefore, when tbe district court rendered tbe judgment under consideration, affiant’s license to sell liquor was canceled and extinguished, and the taking of an appeal to this court could not, and did not, revive or reinstate the license. Assuming, for the sake of argument, but not conceding, that the giving of an undertaking (supserse-deas bond) as required by Comp. Laws 190J, section 3314, would suspend the force and effect of the judgment, and in effect reinstate the license revoked and canceled by the judgment, and that affiant would thereby be entitled to sell liquor under and in pursuance of the license during the pendency of the appeal, no such bond or undertaking was given in the court below, and affiant has not applied to this court for permission to file such undertaking. Therefore the judgment, under affiant’s theory of the law, has not been and is not suspended.

For the reasons stated, the order citing B. F. Grant, chief of police, to show cause why he should not be punished for contempt, is set aside, and the proceeding dismissed.

---

Concurrence Opinion

STRAUP, J.

2 I concur in the rulings of the Chief Justice; but I am further of the opinion that the order, or so-called judgment, of revocation is not appealable. This for the reason that the power conferred on district courts by section 3, chap. 106, Laws 1911, to direct or order city councils of cities of the first and second class to issue liquor licenses, and by section 10 to revoke such licenses, is special, summary, administrative, and inseparable from the sovereignty of the state — a power conferred on the district court as a mere agent of the state, exercising police powers of the state. That I think evident, not only from the nature of the power conferred, but also from the language of the act conferring and delegating the power. The' statute itself does not provide for an appeal from an order or ruling granting or refusing a license, or revoking or refusing to revoke it.

The claim made is that such a ruling or order is “a judgment,” a final judgment; and since the,Constitution grants the right of an appeal from all final judgments of the district court, an appeal lies from this order or so-called judgment of revocation. I do not think tbe claim well founded. Liquor licenses or permits are neither contracts nor rights of property. They are mere permits, issued or granted in the exercise of the police power of the state, to do what otherwise would be unlawful. The same tribunal authorized to direct or grant the issuance of a license is also authorized to revoke it. There is no difference as to the nature of the power exercised in granting a license and in revoking it. In both the court acts in an administrative capacity and as the mere agent of the state. The state itself may grant or withhold liquor licenses or permits, or revoke t-hem as it may think proper. It may likewise delegate that power to others. As to cities of the first and second class the power has been delegated to district courts; as to cities of the third class, towns, and counties, to boards of trustees, commissioners, and city councils. Now, I see no difference as to the nature and character of the power, whether exercised by a district court, or a board of trustees, or commissioners, or a city council. If an appeal lies from an order or ruling of the district court granting or refusing a license, or revoking or refusing to revoke it, then it would seem an appeal would also lie from similar action by a board of trastees or commissioners, or a city council. To say that an appeal lies when the power is exercised by a district court, but not when 'exercised by a board or city council, is to look, not to the substance of the power conferred and exercised, but to the mere instrumentality to which it is delegated and through which it is exercised. Of course, the legislature could have provided for an appeal, as is the case in some jurisdictions; but that was not done. I therefore think the order unappealable, and that the case is not legally pending in this court; and hence the party complained of has committed no offense in this court. We are thus, on a proceeding by appeal, without jurisdiction to inquire into or adjudge the alleged matters presented by the petitioner.

If, however, I am wrong in this, and if the judgment is appealable and the action legally pending before us, then am I of the opinion, for the reasons given by the Chief Justice, that the order or judgment of the court below is self-executing, and that the execution of it was not stayed by the appeal.

---

Concurrence Opinion

FRICK, «I.

I concur with the conclusions of the Chief Justice. I am, however, further of the opinion that the order revoking the license is not appealable, and with regard to that question I also fully concur with the views expressed by Mr. Justice Straup in his concurring opinion.