30 Fla. 545 | Fla. | 1892
This is an original proceeding in the court. The case made for relator in the alternative writ is, that he is a citizen of the State of Florida, residing at Pensacola, and for .the year prior to the first day of October, A. D. 1892, was engaged in the sale of malt and spirituous liquors in the 18th election district in the county of Escambia., said State; that prior to the expiration of his license on the first day of October, A. D. 1892, relator caused to be published in the Daily News of Pensacola, for the space of two weeks before a regular meeting of the Board of County Commissioners of said county an application for a permit to sell spirituous and malt liquors in said 13th election district, signed by a majority of the registered voters of said district in which his place of business is situated, the signatures to said application, each and every one being attached in the presence of two credible witnesses, accompanied with an affidavit .of relator that each and every name or mark affixed thereto was the act and deed of the person purporting to sign the same, and that there was no fráud, bribery or deception in procuring said signatures or marks ; that' said application after its publication as aforesaid was presented to the Board of County Commissioners of said county at ¿regular meeting, and after a hearing thereon a permit to sell such liquors in said election district was granted by said Board to relator;
The answer of respondent is substantially this, that relator has never become entitled to a license under the laws of Florida to sell spirituous and malt liquors-during any part- of the year beginning October 1st, 1892, in said thirteenth election district in which he proposed to sell such liquors, because relator has-never procured to his application for a permit to sell such liquors the signatures of a majority of the registered voters of said election district, as shown by the registration list at the date of his said application, but that the application presented by him to the Board of County Commissioners of said county upon which a permit to sell said liquors was granted, con
It is also alleged that said Provisional Municipality did ordain the ordinance set out in the alternative writ, and under its directions respondent refused to issue license from said municipality to relator to sell liquors in said election district at the place indicated by him as the place where he intended to use the same, as said place was within four hundred and fifty feet of both a church and a school, and relator produced to respondent no consent of the Board of Commissioners of said municipality for the use of a license at such place, and it is alleged that no such consent has ever been obtained by relator ; that respondent has never refused to issue to relator a State and county license to sell such liquors in said election district, and he required of respondent such licenses only if he could procure also a license from said municipality.
It is further averred in the answer that said Board of Municipal Commissioners has not consented to the use of liquor licenses in all cases within such prohibited distance, except that of relator; but, on the contrary, it has refused to consent to other applications to sell liquors within said prohibited distance; that said board has not consented to such use of such li
It is also alleged that said board was informed by the marshal of said municipality that he-had measured the distance between the saloon of said George Wil
To this answer relator has filed a demurrer along with a replication. We will first dispose of the. issues raised by the demurrer. ‘The grounds of the demurrer taken together amount to this, that the answer •is insufficient in law, and fails to set forth any facts precluding relator from the relief which he prays in the alternative writ. ■ ■
There are two distinct and separate defenses sought to be interposed in the answer. The first is, that relator did not comply with the law in procuring his ■permit from the Board of County Commissioners of Escambia county, in this, that the election district in said county in which he proposed to sell malt and spirituous liquors, and for which said permit was procured, had at the date of the application for said permit five hundred and sixty-two registered voters, as shown by the registration list, and relator’s application contained only one hundred and ninety-nine ‘names, and that of the names appearing upon said application only one hundred and five appeared upo n said registration list.
The truth of this allegation on the issues raised by the demurrer is admitted. The statute requires th at
Under the allegations of the answer and the demurrer thereto the question is narrowed to a refusal of respondent to issue a municipal license to relator, but we do not think' it makes any difference whether he refused to issue a municipal license, or State and county license, under the state of facts set up in the answer. A permit granted by the Board of County Commissioners under such circumstances would be void, and would secure to the possessor thereof no rights whatever. Said board has no judicial power or discretion in reference to granting the permit, and can not dispense with, nor add to, any of the essential requirements of the State. In the case of the State of Florida ex rel. vs. Commissioners of Jefferson County, 20 Fla., 425, it was said in construing the statute that “no judicial discretion or judgment is vested in this ministerial board, beyond the ascertain ment of facts as to the identity of the names on the registration list of the district with those sworn to be signed to the petition and witnessed, the facts of publication, and whether the number of the signers is a majority of those registered.. These facts are simply facts to be ascertained by the use of the simple faculties of reading and computation — plain words and figures.” If the relator has failed to comply with the statute in the particulars alleged in the answer, he is not entitled
The case of Welsford vs. Weidlein, Mayor, 23 Kansas, 601, was a proceeding by mandamus to force the respondent, as Mayor of the city of Peabody, to sign a certain license for relator to keep a dramshop for the sale of liquors in said city. The defense interposed by respondent was that the city council had no power to grant the license, as less than a majority of the residents of said city of twenty-one years of age and over signed the petition for the license; that only 251 names were attached to it, thirty of whom were non-residents, and that 280 resident adults of the city did not sign the petition. The statute required a petition signed by a majority of the adult residents to be presented to the town council before a license should be granted. The court held that the power to grant a license to carry on a dramshop depended upon a petition signed by a majority of the resident adults of said city, and as the city council had granted the license without the requisite petition, its action was void, and the Mayor was not bound to sign any license so ordered. It ■was said: “Without such petition the city council had no power or jurisdiction in the premises. Not only is a petition requisite, but it must be signed by a majority of the adult residents. Unless a majority make the request that a license be granted to the applicant,
We have examined the authorities cited by counsel for relator (Troop on Public Officers, sec. 821; Mechem on Public Officers, sec. 480; Lawson on Presumptive Evidence, Rule 13, page 47; Nelson vs. People, 23 N. Y., 293; State vs. Perkins, 24 N. J., (Law), 409; Killpatrick vs Frost, 2 Grant’s Cases, 168; Commissioners of Saline Co. vs. Anderson, 20 Kansas, 298, s. c., 27 Am. Rep., 171), and find that they do not conflict with the conclusions reached in the cases upon which we rely. The case at bar is clearly distinguishable from cases where an official is clothed with judicial, quasi judicial, or executive discretion which can not be controlled by mandamus, of which there are several in this court.
In the first paragraph of the answer there is presented a good defense to the alternative writ, but in view of the fact that further proceedings may be had on the replication filed herein, and in view of our conclusion in the case of' Ex ■parte Theisen, decided at the present term of this court (30 Fla., 529, 11 South. Rep., 901) it is proper to say that the defenses set up
The demurrer to the answer must be overruled, and it is ordered accordingly.