125 P. 191 | Idaho | 1912
This appeal involves the action of the board of county commissioners of Lemhi county in rejecting the application of John Sullivan for a license to sell intoxicating liquors at retail in Leadore in Junction precinct, Lemhi county.
This case differs from the case of Anderson v. Board of Commissioners, ante, p. 190, 125 Pac. 188, in that the Anderson case was an application for a license to sell intoxicating liquors within the boundaries of an incorporated city. In this case the place at which the sale is to be made is an unincorporated town or village. This case therefore falls within the terms of the proviso to sec. 1508, considered and discussed by this court in the Anderson ease. It was therefore the duty of the board of commissioners, under the terms of the proviso to sec. 1508, to make the following investigations: First, to “determine whether or not the granting of such license would be conducive to the best interests of the community in which such saloon or business was proposed to be established”; second, to determine “whether or not such applicant was a fit person to have such license and to carry on such business”; and, third, to determine “whether or not such place of sale and
Sec. 1508, Rev. Codes, closes with the following clause: “And such order of the board of county commissioners shall be subject to appeal to the district court as in the ease of other orders of said board.” It is contended that this provision of the statute authorizes an appeal from an order refusing to grant a liquor license, and that upon appeal the matter is heard anew, the same as if it had never been heard before the board of commissioners, and that the district judge hears the matter and determines all the questions that the statute (see. 1508) requires the board of commissioners to determine, and that his determination is conclusive on the board. This contention is made on the theory that sec. 1953 applies to appeals of this kind. That section provides that, “Upon the appeal, the matter must be heard anew and the act, order or finding so appealed from may be affirmed, reversed or modified.” We do not believe that sec. 1953 was intended to apply to an appeal of this kind. That section was enacted many years before this provision was added to sec. 1508, authorizing an appeal from the action of the board of commissioners in allowing or rejecting an application for a liquor license. Sec. 1953 is contained in art. 5, title 2,
These are questions that common, everyday experience •teaches us are viewed in a different light by different citizens and likewise by different officials. The legislature deemed it necessary to submit this question to the judgment and discretion of some official, board or body, and so it concluded that the board of commissioners was the proper body. If that •judgment and discretion is to be supplanted and displaced •on appeal by the judgment and discretion of another officer •in the person of the district judge, then there can be no ■uniform standard in the county; nor can there be any uniform •judgment and discretion thereon. The board may see the matter from one viewpoint and the district judge from another •viewpoint.
In Darby v. Pence, 17 Ida. 697, 107 Pac. 484, 27 L. R. A., N. S., 1194, this court, in considering the discretionary power conferred upon the city council of Boise City in the matter of granting liquor licenses, said:
“If the fact that the applicant was a man of good moral character and fit to carry on the business, and such question was one which' might be reviewed in the courts, then instead of the common council of Boise City being the judge of the fitness of an applicant, as provided in the ordinance, the court would become the judge and the provisions of the ordinance would be of no force or effect whatever. Had the common council intended to leave the question of the applicant’s fitness to receive a license open to investigation in the courts, then the ordinance would have so provided.”
In the Darby ease, the court was dealing with a city ordinance instead of an act of the legislature, but the question of discretion was there being considered.
It is not shown that the board of commissioners in any way violated the provisions of the statute in considering and passing upon the application of the respondent, nor does it appear that they have in any way acted arbitrarily. The fact that they had previously granted licenses to two other applicants to sell liquors at the same place or in the same precinct is no
The judgment of the district court should be reversed, and it is so ordered, and the causéis remanded with direction to affirm the action of the board of commissioners. Costs awarded in favor of appellant.