65 Neb. 524 | Neb. | 1902
The relators prosecute error proceedings from an order of the district court for Box Butte county denying their applications for peremptory writs of mandamus against the respondents, and dismissing at their cost the three several actions brought for the purpose of obtaining such writs. By agreement of all parties in interest, the three several actions were consolidated and pro- wuted as one suit, the law and the facts being equally applicable to each, and the writs prayed for being identical, save as to the names of the relators; and the right to have the Avrits issued is based substantially on the same grounds in each application. The facts are all agreed to and stipulated in the record. The questions involved and presented to us for consideration are purely matters of Ioav. The subject of the controversy is in respect of the granting of licenses to the relators by tbe municipal authorities of the city of Alliance, a city of less than 5,000 inhabitants, to sell intoxicating liquors therein for the current fiscal year. The case presents a. tAvofold aspect, one of Avhich is whether, Avhen a city council has granted a license to sell intoxicating liquors, after full and due compliance with all of the requirements of chapter 50 of the Compile-Statutes regulating the sale of intoxicating liquors and tlw ■ordinances of the city regulating the granting of licenses, the city council may, at an adjourned, sitting, some íavo weeks later, without notice to the applicants and without giving any reason therefor, rescind and revoke its previous order granting such licenses, and reject the application.
It appears from the stipulated facts in the case at bar that on May 6 the city council, after full compliance with all the requirements of the law on the part of the relators, entered an order granting licenses to them on their several applications, and also to three others residing in the city who were desirous of engaging in the same business. The licenses were granted after hearing, and in pursuance of an ordinance of the city duly enacted for such purpose. The city council then adjourned its meeting until the 20th of the same month. The mayor, whose duty it was, with the city clerk, to sign the licenses so granted to relators by the city council, refused to sign the same, and no formal licenses were issued. On May 20, at the adjourned meeting of the city council a motion was made to reconsider and rescind the action taken on May 6 in granting licenses to the relators; two members voting in favor, and. one against' the motion, which was declared adopted. The city council was at the time composed of four members, and the mayor as an ex-officio member; one of the councilmen being absent. No reason is assigned for the city
This phase of the litigation is fairly presented by the issues, has been exhaustively argued by counsel, and its determination appears essential to a proper disposition of the case. It is quite important to know and determine
Will the statute regulating the sale of intoxicating liquors in this state bear the construction that after the authorities have determined to authorize the sale of intoxicating liquors under the regulations provided for by law, they may, arbitrarily and without any reason therefor, grant a license to whomsoever they choose, who have complied with the law, and refuse it to whomsoever they may say it does not please them to have the applicant engaged in the traffic? Can they grant a license to a favorite individual, — give him the exclusive privilege to engage in the traffic, — and refuse a license to all others?
It would seem to be a vain and useless thing for the legislature to provide for an appeal from the action of the licensing board to the district court, and there have the case heard on appeal, and a proper judgment entered, if the discretion of the licensing body was unlimited, and to be exercised arbitrarily according to the uncontrolled will of that body. Nor do we think the different sections of the statute regarding the subject, when construed together, are susceptible of such a construction. If the licensing board acts q«cm-juclicially, as has been repeatedly held they do, it would seem there must be a rational basis for the action taken, and a reason given based upon the evidence or facts and circumstances of which the board may legally take cognizance, such as may be reviewed and considered by the appellate court in the determination of the correctness of the conclusion reached by such tribunal. While the authorities are not entirely harmonious on the subject, a careful consideration of many of them leads us to conclude that on principle there is not a great divergence of opinion; that almost all the decisions of the courts of last resort recognize the principle that -whether the traffic; shall be licensed in a particular political subdivision or municipality rests absolutely in the discretion of the licensing body, but where the traffic is sought to be controlled and regulated by licensing those engaged in it, the discretionary power to grant or refuse a license is a legal discretion having law and reason for its basis, and that arbitrary action may be controlled by the writ of mandamus. Says Black, Intoxicating Liquors, section 171, “The discretion to be exercised in granting or refusing licenses, is a sound judicial discretion, to be determined, in
It is argued by respondents’ counsel that because of the use of the words “may grant a license,” in section 2 of the liquor act, it can not be construed as mandatory without doing violence to the general rule of construction, to the effect that the word “may” can be construed as mandatory only for the purpose of sustaining, preserving, or enforcing a right, but never to create one, and that it can not be said that the relators have a legal right to the licenses, which they are seeking to enforce. Without entering into a discussion of the technical rules determining when the. word “may” should be construed as mandatory, we are satisfied that it was not the intention of the legislature to empower the municipal authorities of the state with an unrestrained discretion to discriminate, without cause or reason, between applicants for liquor licenses, granting to one and refusing to another capriciously and whimsically; but rather, it was the intention, that when it was determined to license the traffic, to determine the right of those applying to engage in the business under recognized rules and laws, and for causes and reasons applying to all alike, and in the exercise of a legal discretion, subject to review by appeal to the district court. The word “may,” we apprehend, applies more directly to the right of the local
It is also said, although nr>t properly inferable from the record, that the action of the city council which is complained of may have been occasioned because of a desire to restrict the number of saloons and those who should be licensed to engage in the traffic, or prevent the selling of liquors at, places applied for by the relators because deemed inexpedient and inimical to the interests of the city, and especially of the locality where it is proposed to engage in the business. This is mere speculation, and Ave are not at all Avarranted in arriving at any such conclusion, or to any other conclusion than that the action Avas purely arbitrary. The argument admits the correctness of the proposition of the relators Avherein they contend that such action must have a reason for its basis, and that the discretionary poAver resting in the city council is not unlimited. The right to regulate the traffic through restrictions and regulations almost innumerable and inconceivable in variety is conceded. Such regulation, Iioavever, can not be the product of the eArer-changing personal wishes and will of the city council, unenacted into ordinance or resolution, but locked in their breasts until needed to gratify some personal Avhim, and again hidden in the secrecy of their minds while others are granted the very privileges denied to those from whom it suited their pleasure to withhold. The poAver to regulate, says the statute, is by ordinance, which must be of general application, and bear alike upon all avIio are brought within the
The relators are entitled to a peremptory writ as prayed,, commanding the respondents the mayor and city council to rescind and revoke the motion passed at the meeting of May 20, wherein they attempted to reconsider the action taken on May 6 granting licenses to relators, and to reject their application for such licenses, and against the respondents the mayor and the city clerk, commanding them to issue to the relators licenses in pursuance of those granted at the meeting of the city council of May 6, for the remainder of the municipal year for which such licenses were granted; the costs of the action to be taxed against all of the respondents, save the two members of the city council heretofore mentioned.
It is possible that the relators have misconceived their remedy, by applying for a writ of mandamus, instead of appealing from the action of the city council in rejecting their several applications. Whether or not they have a plain, speedy and effective remedy in an action at law, by appeal, Avas not presented to or considered by the trial court, nor is the question argued here; hence we have neither considered nor determined the matter.
The order of the district court dismissing the several actions of relators applying for peremptory Avrits of mandamus is reversed, and a judgment will be entered in this court awarding the writ and costs in harmony Avith the views hereinbefore expressed.
Judgment accordingly.