Chequinn Corp. v. Mullen

• Decision Date: 19 August 1963
• Citation: 159 Me. 375,193 A.2d 432
• Parties: CHEQUINN CORPORATION v. William MULLEN et al.
• Court: Maine Supreme Court

Page 432

193 A.2d 432

159 Me. 375

CHEQUINN CORPORATION v. William MULLEN et al.

Supreme Judicial Court of Maine.

Aug. 19, 1963.

Bennett & Schwarz, by Robert D. Schwarz, Portland, Robert York, Old Orchard Beach, for plaintiff.

William P. Donahue, Biddeford, for defendant.

Before WILLIAMSON, C. J. and WEBBER, SULLIVAN, SIDDALL and MARDEN, JJ.

WILLIAMSON, Chief Justice.

This is an appeal from denial of a peremptory writ of mandamus after hearing on alternative writ, answers, replies, and proof. R.S. c. 129, §§ 17, 18.

The plaintiff corporation seeks to compel the municipal officers or town council of Old Orchard Beach, the named defendants, to issue a victualer's license and to approve applications to the State Liquor Commission for a 'restaurant malt liquor license' and for a 'special amusement permit for dancing and entertainment' at the 'Barn', so-called. After hearing the council refused to grant a victualer's license and tabled the other applications. Without approval of a victualer's license action on the other applications would have been pointless.

By ordinance adopted pursuant to a 1961 Act, the municipal officers of Old Orchard Beach were empowered to grant the desired victualer's license. The general statute under which the 'municipal officers, treasurer and clerk of every town' constitute the 'licensing board' was to this extent modified in the case of Old Orchard Beach. There is no suggestion indeed by the parties that the application for the license was not presented to and heard by the proper body, namely, the municipal officers or town council. Old Orchard Beach Ordinance, June 13, 1961, as amended March 5, 1963, adopted pursuant to P. & S. Laws 1961, c. 176, 'An Act Relative to the Granting of Licenses for Certain Businesses and Purposes by the Municipal Officers of the Town of Old Orchard Beach and the Town of Bar Harbor'; R.S. c. 100, § 29-victualer's license; R.S. c. 61, §§ 24, 40--State Liquor Commission license and entertainment permit.

The defendants contend that the plaintiff abandoned the mandamus proceedings by withdrawing its several applications from the town officers between the council hearing and the start of the present case. It does not appear that the point was urged upon the sitting justice, and in any event, we are convinced that irregularities in procedure, if any, have been waived. We strike for the merits of the case.

The victualer's license statute reads in part:

'* * * they [the licensing board] may license under their hands as many persons of good moral character, and under such restrictions and regulations as they deem necessary, to be innkeepers and victualers in said town, * * *.' R.S. c. 100, § 29.

'The permission to conduct an inn is not granted to all who may apply for a license; it is not a right to be exercised by one at will, but a privilege to be exercised when granted by municipal officers. The last-named officers may not at will grant such license; their duty is defined by statute, and they may issue licenses to such persons only as are of good moral character.' Goodwin v. Nedjip, 117 Me. 339, 342, 104 A. 519.

The statute carries no right of appeal from a denial by the board (or as here the municipal officers or town council). On revocation or suspension, however, the licensee may appeal to the Superior Court. R.S. c. 100, § 51; Kovack v. City of Waterville, 157 Me. 411, 173 A.2d 554.

Mandamus is designed to compel action and not to control decision. The writ is granted in the sound discretion of the Court. It is not a writ of right. Dorcourt Co. v. Great Northern Paper Co., 146 Me. 344, 81 A.2d 662.

The writ reaches the issue of whether a board, as the town council of Old Orchard Beach, has acted upon an application for a license, but not the issue of whether the license should have been granted, except when abuse of discretion has resulted in manifest injustice. In this event, mandamus is available to promote justice in the absence of other adequate remedy. Such abuse of discretion is not the exercise of discretion required of a board in the carrying out of its lawful duties. It is upon this theory that the petitioner seeks to overcome the decision of the sitting justice.

'There are, however, cases which show that, if the discretion of the court below is exercised with manifest injustice the court is not precluded from commanding its due exercise.' Davis v. County Commissioners, 63 Me. 396, 398.

'There are cases that, if, under the guise of discretion, manifest injustice is done, the court is not precluded from constraining that official action be honestly performed; that discretion, not its abuse, shall operate and have effect, and not be arbitrarily or capriciously refused.' Rogers v. Brown et al., Selectmen of Brunswick, 135 Me. 117, 120, 190 A. 632.

'But if a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise. They will interfere, where it is clearly shown that the discretion is abused. Such abuse of discretion will be controlled by mandamus. A public officer or inferior tribunal may be guilty of so gross an abuse of discretion, or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law. In such a case mandamus will afford a remedy.' Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 Ill. 227, 13 N.E. 201, 202.

'Courts are very reluctant to interfere with the power vested in municipal bodies and officers to grant or refuse licenses and permits, and will not do so except in a clear case of abuse. And when county commissioners refuse to grant a license to retail liquor, on the ground that the applicant is not a fit person, mandamus will not lie to compel the commissioners to grant it; * * *' Spelling, Injunctions and other Extraordinary Remedies § 1476.

Commissioners of Maxton et al v. Comm. of Robeson County, 107 N.C. 335, 12 S.E. 92, cited for the above proposition, arose on demurrer to answer asserting applicants had not established good moral character. The Court said, 12 S.E. at p. 93:

'The demurrer admitted these allegations to be true. It is settled that upon such state of facts a mandamus could not issue.' See also Casino Motor Co. v. Needham et al., 151 Me. 333, 118 A.2d 781; Nichols v. Dunton, 113 Me. 282, 93 A. 746; Lawrence v. Richards, 111 Me. 95, 88 A. 92, 47 L.R.A.,N.S., 654; Furbish v. County Com., 93 Me. 117, 44 A. 364; Smyth v. Titcomb, 31 Me. 272; In re Proprietors of Kennebunk Toll Bridge, 11 Me. 263; 55 C.J.S. Mandamus § 156 c, p. 297; 34 Am.Jur., Mandamus § 69; Ferris, Extraordinary Legal Remedies § 209.

The sitting justice, in denying the peremptory writ, said:

'* * * there is evidence that some of the councilors possess a well recognized and definite prejudice against some of the officers of petitioner corporation.

'The councilors had before them ample evidence to warrant a denial. Under these circumstances the existing prejudice became immaterial.'

On request, he also made the following supplemental findings:

'The councilors did not have before them for consideration at the stated and lawful meeting of April 18th any credible or admissible evidence bearing on the bad moral character of any officers of the Chequinn Corp. or their immediate families. I do not consider the fact that any hearsay evidence that was called to their attention before the meeting of alleged criminal records of Henry McCue, father of one of the officers of the corporation, as admissible or credible evidence to be considered as coming from the hearing of April 18th.

'There was no evidence in the case that the councilors relied on the criminal record of Henry McCue excepting one councilor said he was influenced by it and another said that he was not.

'There were one or more councilors who exhibited a strong and unmistakable bias against one or more members of Chequinn Corp. or their immediate families to the extent, in my opinion, that would make them incompetent to...