92 W. Va. 57 | W. Va. | 1922
The respondents, the mayor and members of the council of the City of Charleston, having refused the relator a license to conduct a restaurant, in a certain room within the City limits, upon his application made therefor, in due form and after compliance with the usual preliminary requirements, he has; applied here, in the usual way, for a writ of mandamus to compel the issuance of such license.
The ordinances of the City pertaining to the subject of restaurant licenses is not materially different from those of the City of Huntington, respecting the same subject, which were interpreted and construed in Houvouras v. City of Huntington, 90 W. Va. 245, 110 S. E. 692. No person is permitted to conduct such a business without a license. No license granted shall be taken to legalize any act which might otherwise be in violation of law, or to exempt from any penalty prescribed for such violation. By sec. 93 of the ordinances, licensees are prohibited from doing or permitting numerous things specified therein. See. 94 reserves the power to the council to cancel or revoke licenses, for violation of any of the provisions of the preceding section. Sec. 95 forbids issuance of licenses to persons who have violated any of’ the provisions of Sec. 93, or permitted the doing of any act therein forbidden. It also reserves power to the council to> refuse licenses to persons of immoral character and licenses;
None of the things forbidden or proscribed by see. 93 are charged against the applicant. He had a full hearing before the council and his application was denied upon grounds other than those mentioned in sections 93 and 94, as cause for revocation and refusal of licenses. One of the grounds upon which his application was refused is that he does not ■ propose to establish, operate and maintain such a restaurant as, in the opinion of the council, ought to be authorized. In the verified return, it is charged that- the relator intends to keep what is known as a “Hot Dog Stand,” for the sale of sausages, sandwiches, ice-cream and the like. It is not denied by the return, that places of that kind are restaurants, within the meaning of the ordinances. The ordinances prescribe no requisites for restaurants. In other words, there are no regulations prescribing what shall be kept or maintained in a restaurant, or how it 'shall be conducted. The council cannot prescribe requirements for a particular license, after the application has been made in accordance with the existing ordinances. i In cases of this kind, the conditions must be prescribed in advance so that all applicants may know what they are and how to comply with them.
Of the provisions in the ordinances purporting to reserve power in the council to refuse licenses for the conduct of restaurants in improper places, and the provisions purporting to reserve arbitrary discretion and power to refuse licenses in any case, upon such circumstances as may be deemed sufficient in the opinion of the council to justify the refusal
For the reasons stated, a peremptory writ of mandamus will be awarded.
Writ awarded'.