112 P. 809 | Utah | 1910
The plaintiff applied to the district court for a writ of mandate to compel the defendants, the county commissioners of Morgan County, to grant him a license to sell intoxicating liquors at retail at Devil’s Slide, in Morgan County. It is alleged in the complaint that on and prior to the 1st day of March, 1909, the plaintiff was engaged in such business at such place pursuant to a license theretofore issued to him by the defendants, and that on the day last named he applied to them for a license to there continue the business, but that they refused to grant it. It is further alleged that the plaintiff signed and filed a petition for a license with the county clerk of Morgan County as provided by law, and that he also presented a bond signed by himself and by two good and sufficient sureties in the sum of one thousand dollars, and conditioned as by the statute provided, that he would keep an orderly and1 well-regulated house, and would not allow gambling with cards, dice, or other device or implements, and that he would pay all damages, fines, and forfeitures which might be adjudged against him under the provisions relating to intoxicating liquors. It is further alleged that the application “was acted upon by said defendants on March 1, 1909, in due and regular meeting of said board of county commissioners, and by them then and there refused and not granted,” and that “such refusal was not based upon any defect in the application nor upon any other reason, except that said board was opposed to the granting of any liquor license in said county, and refused said application upon said ground and no other ground.” Upon such verified complaint the plaintiff prayed that the defendants be required to issue him a license to sell intoxicating liquors at Devil’s Slide, or show cause why they should not do so, and the district court issued an alternative writ of mandate
The defendants filed a motion to quash the writ and a demurrer to the complaint for want of facts. The motion and the demurrer were overruled. The defendants then filed an answer in which they averred that a large majority of the residents and taxpayers of Morgan County was opposed to the granting of licenses for the sale of intoxicating liquors at any place within the boundaries of the county, outside of the limits of incorporated cities, and that a large percentage of the residents and taxpayers of that county had theretofore filed with the county commisioners written protests against the granting of any such licenses; that it was against the interests of Morgan County, and of the residents and taxpayers thereof, to permit the sale of intoxicating liquors at any place within the boundaries of the county, outside the limits of incorporated cities; that a majority of the residents and taxpayers of the precinct in which the plaintiff desired permission to sell intoxicating liquors was opposed1 to the granting of a license to sell intoxicating liquors at retail therein; and that, in the opinion of the defendants, the permitting of such sales in such precinct was against the best interests of the precinct, and of the residents and taxpayers thereof. It is further alleged by them that during the time the plaintiff was engaged in the business of selling intoxicating liquors at Devil’s Slide, prior to the 1st day of March, 1909, under a license theretofore issued to him by the board of county commissioners, the plaintiff, in the conduct of such business, knowingly and repeatedly violated the laws of the state, “and, more particularly, that the plaintiff permitted intoxicating liquors to be sold and disposed of on the premises on the first day of the week, commonly called Sunday, and that at divers times during said period he permitted upon said premises gambling, by means of cards, slot machines, and other devices,” contrary to law; that the defendants believed if a license were issued to the plaintiff, as applied for by him, he would continue in
From sucb judgments tbe defendants have prosecuted this appeal. Tbe principal errors assigned relate to tbe rulings overruling tbe demurrer and tbe motion to quash, and granting judgments on tbe pleadings and so-called findings. They involve tbe question whether tbe determination of tbe commissioners in refusing to grant tbe plaintiff a license on bis application can be controlled by mandamus, and, if so, whether tbe judgments entered by tbe lower court on tbe pleadings and findings were justified.. Tbe nature and object of a writ of mandamus have often been stated. “It is a command,” said tbe court in tbe case of Johnson's License,
In a recent case the Maryland court (Gross v. Mayor of Baltimore, 111 Md. 543, 15 Atl. 346) concisely stated the rule that “the essential question to- be determined in all such cases is whether the nature of the duty is imperative or discretionary. If it be the former the writ will be granted or not according to the merits of the case, but if it be the latter the writ will not be granted at all.” And to that effect is our statute (section 3641, Comp. Laws 1907), which pro vides that the writ may issue to any inferior tribunal, board, etc., “to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and, from which he is unlawfully precluded by such inferior tribunal, board,” etc. To .entitle the respondent to the writ, it therefore is incumbent upon him to show that the granting of a license to him to sell intoxicating liquors at retail at Devil’s Slide, the particular place named in his pe-
By section 1243 it is provided that: “The boards of county commissioners in their respective counties, and the city councils in their respective cities, and the boards of trustees in their respective towns, are hereby authorized to grant licenses, as contemplated in section 1242, to any person over the age of twenty-one years, upon an application being made for such license, by petition signed by the applicant and filed with the county clerk, city recorder, or town clerk, as the case may be. Said petition must state definitely the particular place at which any of the liquors named in section- 1242 are intended to be manufactured, sold, bartered, dealt out, or otherwise disposed of, and whether the applicant intends to carry on a retail or wholesale business.”
It is further provided by that section that, before a license is granted, the applicant shall execute a bond with two or more sureties in a sum not less than five hundred dollars and not more than one thousand dollars, to be fixed and approved "by the board of county commissioners, etc., and conditioned, as in that section provided, that during the continuance •of his license he will not allow gambling with cards, dice, •or other device or implements, that he will keep an orderly •and well-regulated house, and that he will pay all damages, fines, and forfeitures which may be adjudged against him under the provisions of the title relating to intoxicating liquors.
By section 1244 the county commissioners, etc., are given the power to determine the amount of the license, which shall not be less than four hundred dollars for a period of one year, and the time for which it is granted which shall not be for a longer period than one year, nor less than three
It is in effect contended by respondent that when an application for a license in conformity with the statute is made and the applicant shows himself to possess the qualifications requisite for the -issuing of a license under the statute, it then becomes the imperative duty of the commissioner’s to grant the license, and that they cannot lawfully, in the exercise of any other discretion, refuse it. And he is required to take such a position, else the complaint does not show a plain legal duty resting upon the commissioners to grant the license.
We do not think that under the statute the commissioners are bound to issue a license to every one applying for it, though the application be made in conformity with the statute, and the applicant found to possess all the
He further approvingly referred to the cases of Muller v. Com'rs, 89 N. C. 172, and Stale v. Holt County Court, 39 Mo. 521, where it was held that even though the application for a liquor license was made in conformity with the requirements of the statute, and the party applying possessed all the required qualifications for the issuance of a license under the statute, still the commissioners, and the county court' upon whom was conferred the power to grant liquor licenses, could, in the exercise of their discretion, refuse to grant it. In those cases the statute conferred no wider discretion upon those authorized to grant licenses than is conferred by our statute upon the board of county commissioners. If upon an application for a license made in conformity with the statute, and the applicant shown to possess all the qualifications requisite for the issuing of a license, the county commissioners have no discretion to refuse the granting of the license, then, upon application, might the commissioners be obliged to grant a license to sell intoxicating liquors at every settlement, or neighborhood, or cross-roads, in the county; and not only one or a half a dozen at each place, but as many more as there were persons showing themselves so qualified and applying for a license. The legislature undoubtedly vested the county commissioners with the power of passing upon applications for permission to sell intoxicating liquors. In passing upon such question they may not only consider whether the applicant it twenty-one years or more of age, whether his application is in due form, and whether his proposed bond is good and sufficient, but also whether the person applying for the license is a proper person to be intrusted with the conduct of such business, whether the place
That there are certain dangers, and evils attending the business of selling intoxicating liquors is generally conceded and recognized. Mr. Justice Eield, in the case of Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620, said:
“There is no inherent right in a citizen to sell intoxicating liquor by retail; it is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue license for that purpose.”
And, as we have seen, by our statute a wide discretionary power is conferred upon the board of county commissioners in passing upon applications for licenses to sell intoxicating liquors within their territorial jurisdiction. When an application for a license is made to them, it unquestionably is their duty to consider it, to make proper inquiry concerning it, and, upon the responsibility of their official oath, to reach a determination. But the duty of the commissioners in the premises to grant licenses is not imperative and mandatory. It is discretionary.»
In State v. Board of Com'rs, 60 Minn. 510, 62 N. W. 1135, the court said:
“Whether a license to sell intoxicating liquors shall be granted or refused rests in the discretion of the board of county commissioners in the exercise of which they act judicially and not ministerially, and therefore their action cannot be controlled or reviewed by mandamus.” And in State ex rel. Howie v. Common Council of Northfield, 94 Minn. 84, 101 N. W. 1064, that court again said:
*161 “The provisions of the charter vest in the common council authority to regulate and control the sale of intoxicating liquors within the city, and in exercising that authority the council is clothed with discertionary powers, the exercise of which cannot he controlled by the courts. The power to regulate and control includes the power to do all that is deemed, in the judgment of the council, for the best interests of the municipality and its inhabitants. It necessarily confers the power to refuse a license, or to limit the number of licenses to be granted, when, in the judgment of the council, the welfare of the city suggests such action.”
In Stanley v. Monnet, 34 Kan. 708, 9 Pac. 755, the court said:
“We think the motion to quash must be sustained. The probate judge is vested by the statute with discretionary power in granting permits (to sell intoxicating liquors by druggists), and the duty to do so is not peremptory and absolute. It is not claimed that the probate judge refused to receive or consider the application presented. He has heard the application, and determined not to grant the same. He refuses to give his reasons therefor, but that is immaterial; he has acted.”
In Ramagnano v. Crok, 85 Ala. 226, 3 South. 845, the court said:
“In Dunbar v. Frazer, 78 Ala. 538, it was held that the judge of probate, in granting or refusing a license to retail spirituous liquors under the act of February 17, 1885, acts in a quasi judicial capacity, whether the application is or is not contested, and that his action cannot be reviewed or controlled by mandamus. A mandamus will be issued to compel a judicial officer to act, when it is his duty, and he refuses, but not to direct him how to act. In the present case, the judge of probate acted; and the sufficiency of the reasons for his action cannot be reviewed by mandamus, though they may he erroneous.”
These views are also supported by the following cases: Ex parte Whittington, 34 Ark. 394; State v. Stiff, 104 Mo. App. 685, 78 S. W. 675; Devin v. Belt, 70 Md. 352, 17 Atl. 375; Eve v. Simon, 78 Ga. 120; Malmo’s Appeal, 72 Conn. 1, 43 Atl. 485; Batters v. Dunning, 49 Conn. 479; State v. Bonnell, 119 Ind. 494, 21 N. E. 1101; Swift v. People, 63 Ill. App. 453; Barnes v. County Com’rs, 135 N. C. 27, 47
It is not averred here that the commissioners refused to examine or consider, or act upon, the application. To the contrary it is averred in the complaint that the application “was acted upon by said defendants in due and regular meeting of said board of county commissioners, and by them refused and not granted.” These cases, to a large extent, proceed upon the theory that the retail traffic of intoxicating liquors is one which confessedly requires to be kept in prudent hands, and that where the legislature conferred the power upon authorities to regulate, restrict, and control the traffic, and the power, in passing upon applications, to grant or refuse licenses in their discretion undefined and unpre-scribed by the legislature, the responsibility for the proper conduct of such business rests with such authorities; and, in the language of the court in Ex parte Whittington, supra, if they do not act with a view to the public interests, the legislature may take away their power and discretion, or the people may elect more satisfactory officers upon whom such power and discretion has been conferred; and in the language of the federal court in the case of In re Hoover (D. C.), 30 Fed. 51, that the state may authorize the sale of spirituous liquors on such terms, by such persons, and at such places, as it thinks proper, “and if it may do this directly, may it not delegate to others the exercise of the power? It has simply delegated a portion of its sovereignty to the county commissioners of Chatham County. The commissioners, in the exercise of that sovereignty, refuse a license to the petitioner. The discretion must rest somewhere. The state might have exercised it. It intrusts its discretion to the board of county commissioners, and, as I have said, by the terms of the grant, this discretion is final and not reviewable. This power is inseparable from the sovereignty of the state.”
We are. not unmindful of rulings made that even though a licensing board may be vested with a discretion in the mat
In construing a statute “authorizing and empowering” -the mayor to grant theatrical licenses, the New York court, in the case of People v. Grant, 58 Hun, 455, 12 N. Y. Supp. 879, observed: “The rule undoubtedly is that where public bodies or officers are empowered to do that which the public interests require to1 be done, and adequate means are placed at their disposal, the proper execution of the power may be insisted upon, though the statute conferring it is only permissive in its terms. . . . But why, it may be asked, should this construction be given to the act under consideration? What public interest demands that the mayor should be required under all circumstances to' accept the fee and grant the license ? It seems to me that it is quite the other way. The public good clearly requires that the permissive words in question should be read in the natural and ordinary sense.” Such ruling was later approved by the same court in the case of People v. Murphy, supra.
Even though it may be said that under the statute a duty Is implied to license some one, yet there is nothing in the statute which can properly be construed as imposing a legal (duty to license any particular person. And certainly no duty is imposed upon the commissioners to grant a license
The legislature saw fit not to prescribe the conditions upon which the commissioners were required to grant liquor licenses. Should the courts, by mandamus, compel or coerce them to do so upon certain assumed or existing conditions, they would but do what the legislature itself saw fit not to do. No one has an unqualified or inherrent right to carry on the business of selling intoxicating liquors at retail, nor a vested right to do so which he may ask to be enforced; nor can it be said that it concerns or promotes the public interests for any one to exercise it. (Ex parte Whittington, supra; Malmo’s Appeal, supra.) And, as said by the court in the case of State ex rel. v. Stiff, supra, “the business of selling liquor is not a right and cannot be likened to the ordinary callings of life; that it is a mere privilege to be granted or withheld at the exclusive discretion of the body empowered to license.” The refusal of a license to plaintiff, therefore, did not unlawfully preclude him from the enjoyment of a right to which he was entitled.
We are of the opinion that under the statute, and upon the facts alleged in the complaint, it is not made to appear that a plain legal duty was imposed upon the commissioners to issue -a 'license to the plaintiff upon his application, or that their refusal to do so unlawfully precluded him from enjoying a right to which he was entitled, and therfore the court erred in overruling the demurrer.
Eor additional reasons we are also of the opinion that the court erred in rendering judgment on the pleadings and findings. The plaintiff contends that he was entitled to a judgment on the pleadings on the ground that the defendants had failed to specifically deny the allegation in the complaint that the license was refused plaintiff for the reason that they were opposed to the granting of any license to sell intoxicat
Tbe court in effect made two inconsistent orders, or rendered two inconsistent judgments.- Hirst, tbe court, after being “sufficiently advised,” made an order .granting plaintiff’s motion for judgment on tbe pleadings,