83 Va. 648 | Va. | 1887
delivered the opinion of the court.
The circumstances of the case are these: At the June term, 1885, of the county court of Montgomery county a license was granted by said court to James Wade'to keep a bar-room at the Yellow Sulphur Springs in said county. By an order of said county court, made at the July term thereof, 1885, said license was transferred from said Wade to J. L. Lester. And on the fifth of September, 1885, said Lester made application to the county court of Montgomery to have said license changed from the Yellow Sulphur Springs to the Alleghany House, at Bangs, in said county; and thereupon George Price and others, on their motion, were entered as defendants, and they contested said application. But on consideration the said county court granted the motion of said applicant and made an order changing the license from the Yellow Sulphur Springs to Bangs; and thereupon the said contestants, Price and others, appealed to the judge of the circuit court of said county, in vacation.
The appeal came on to be heard on the twenty-third of September, 1885, in vacation, when the appellee, the said J. L. Lester, appeared and moved the said judge to dismiss the appeal on the ground that no appeal was allowed by law from the said judgment of the county court; but the judge overruled the said motion, and proceeded to hear the application, and, having heard the same, gave judgment refusing the license. To this judgment a writ of error was awarded by one of the judges of this court.
It is assigned for error, that the judge of the circuit court improperly overruled the motion of the appellee below, the plaintiff in error here, to dismiss the appeal.
The law in force in respect to licenses for the retail of ardent spirits, and which applies to this case, is found in section 2, chapter 2, of the act approved March 15th, 1884 (Acts 1883-4, pp. 605-6). This section, after setting forth the preliminary steps to be taken, and the conditions and restrictions imposed upon “any person, club or corporation who desires a license to sell by retail, or to keep a barroom or a malt liquor saloon, or to keep an ordinary,” proceeds: “And the applicant for any such license shall thereupon present such certificate, so certified, to the judge of the county or corporation in which it is proposed to conduct the business, and such court shall thereupon hear such evidence as may be introduced for or against the application, and hear and determine the question of granting the same. It shall be lawful for any person who may consider that he or they would be aggrieved by the granting of such license, to have himself or themselves entered and made a party defendant to said application, and to defend and contest the same. If the court be fully satisfied, upon the hearing of the testimony for and against the application, that the applicant- is a fit person to conduct such
In the light of these provisions of the law, the question is whether the application made to the county court of Montgomery county, at the September term thereof, 1885, and upon which, contested as it was, the motion of the applicant to have his license changed from the Yellow Sulphur Springs to the Alleghany House, at Bangs, in said county, was granted, was such an application as entitled either party to the application to the right of appeal from the judgment or order of the county court thereon ? In order to an intelligent interpretation of the legislative will, as set forth in the statutes above referred to, and in
From a very early period—certainly as early as 1666— the subject was committed to the sole judgment and discretion of the county courts, and their discretion to grant or refuse licenses could not be interfered with by any higher courts. In the earlier statutes we find the language conferring such absolute discretion quite specific; as, for instance: “And if such petition appear reasonable, such court is hereby authorized, -and may, if they think fit, grant the petitioner a license,” &c., or, “by their discretion, shall judge whether it is convenient to suffer such a house to be set up,” &c.
The policy thus distinctly outlined passed unchallenged until after passage of the act of 1849 (sec. 3, ch. 96, Code 1849), in which the specific terms vesting absolute discretion in the county courts, as found in the earlier acts, was omitted and the simple permission term “ may ” was employed. Under this act arose the case of ex parte Yeager, 11 Gratt. 655, in which Judge Daniel, in an able opinion, reviewed the several statutes in the light of the authorities, and, speaking for the majority of the court, held, first, that said section 3, chapter 96, Code 1849, vested in the county courts a discretion to grant or refuse a license, in the exercise of which discretion they could not be controlled by the circuit courts, either by mandamus, writ of error, or certiorari; second, that though the applicant for a license might bring himself fully within and up to all
The policy thus early inaugurated in Virginia, and upheld and vindicated by the decision in Yeager’s case, continued without change until the act of March 3d, 1880, in which the word “ shall ” was employed instead of the word “may,” as in former acts; the effect of which was to make it the duty of the county courts to grant a license to every applicant who came up to all the requirements of the statute. And under the act of 1880 arose the case of Leighton v. Maury, 76 Va. 865, in which, among other things, it was held that a citizen was entitled to make himself a party to an application for a license, and contest the same, in the county and circuit courts; and could appear and defend in this court. West in order came the case of Ailstock v. Page and als., 77 Va. 386, which overruled Leighton v. Maury, so far as the latter case recognized the right of appeal or writ of error in the contestant.
Doubtless the two last-named, variant decisions, largely
The policy thus declared is a departure from not only what was the uniform policy of the State prior to the act of 1880, but is yet a wider departure from the last-named act, and from the rulings of this court in either Leighton v. Maury or Ailstock v. Page and als., supra. The result of the change of policy is, that the court of original jurisdiction is not invested with unlimited discretion as formerly ; nor is the right of appeal to the circuit court limited to the applicant only, as by the act of March 3d, 1880, as amended by the act of March 6th, 1882. But the application must first be made to the court of the county or corporation, and from its judgment there is given the right of appeal to the circuit court only.
It is important to observe that the circuit court, or judge thereof in vacation, has no authority to review and either affirm or reverse the judgment of the county or corporation court, as the case may be. On the contrary, by the express terms of the statute, the circuit court, if in term time, or the judge thereof, if in vacation, is authorized either to grant or refuse the license. Hence, the appeal to the circuit court, or judge, is nothing more nor less than an application, de novo, to the circuit court to do outright, at the instance of the party appealing, what the county or corporation court has refused to do. In other words, the appeal simply serves to transfer the application from one jurisdiction to another and final jurisdiction, and to notify the circuit court that the application was first made, as required, to the county or corporation court, and of the action of such court thereon.
Such being the obvious meaning of the statute, we are unhesitatingly of opinion that the - application to the county court in this case was simply one to have the license changed from a license to keep a bar-room at the
How, the change spoken of, and which can only be effected by the court, is a change by which the applicant surrenders the licensed privilege of retailing ardent spirits at the definite place designated in his already granted license, and acquires a new license privilege to retail ardent spirits at another and equally definite place, at which the applicant could not keep a bar-room—could not retail ardent spirits—without first obtaining a license. Therefore, the change effected by.the court, when the application is granted, is necessarily in the nature of an original application, and is clearly within the spirit and, to say the least, substantially within the very letter of the statute (section two, chapter two, of the act approved fifteenth March, 1884— Acts 1883-4, pp. 605-6).
The insistence on behalf of the plaintiff in error that the provision in the -act last referred to, giving the right of appeal to either applicant or contestant, refers to original applications for licenses, and is wholly foreign to the judg
The fact that the applicant was already licensed to carry on the business of keeping a bar-room is by no means conclusive of the fact that he was at the time of this application a fit person to conduct such business, and certainly is not conclusive of the essential fact that the place to which he proposes to transfer the business is a suitable, convenient and appropriate place for such business—of all w;hich the court must b % fully satisfied. A place of public resort for health or pleasure, or both, might be, and ordinarily is, considered a suitable, convenient and appropriate place for such business, while other places in the same district, for numerous reasons that will readily suggest themselves, would be unsuitable, inconvenient, and wholly inappropriate for carrying on the business of keeping a bar-room.
Can it be that the injury resulting to the best interests of a community will be less serious, less objectionable, because such business is introduced into their midst by one who happens to be licensed to conduct such business at another place adjudged to be suitable, convenient and appropriate therefor? We think not. Looked at in whatever light it may be, the application made in this case to the county court was properly appealable to the circuit court. The appeal was taken during the term at which
Writ op error dismissed.