Appeal
from Superior Court, Wilson County; Moore, Judge.
Douglas
J., dissenting.
This is
an action brought by the plaintiff, in which he seeks to have
issued a writ of mandamus, directed to the commissioners of
the county of Wilson, requiring them to issue to him a
license to retail liquors. As the case was heard on complaint
and answer, it will be necessary to set out the substance of
the pleadings. The plaintiff alleges that he is a bona fide
resident and citizen of the said county, and a legal voter
therein; that the town of Black Creek is and has been an
incorporated town in said county for many
years, and that on the 19th of October, 1903, in accordance
with the provisions of chapter 233, p. 288, of the Public
Laws of 1903 (Watts Law), an election was duly held in said
town to determine whether or not liquor should be sold, a
majority of the votes having been cast in favor of the sale
of liquor; that in the following January the plaintiff
applied to the board of commissioners of the town of Black
Creek for a license to sell liquors for six months from the
first Monday of January, 1904, which license was granted.
Afterwards an application was made by him to the defendants
for an order to be issued to the sheriff of said county
directing him to issue license to the plaintiff to retail
liquors in Black Creek; the plaintiff, at the time of his
application to the defendants, having exhibited to them his
license issued by the commissioners of Black Creek. Plaintiff
then alleges that, in making his said application to the
defendants, he accompanied it with the necessary affidavits
of six freeholders, who were taxpayers and residents of Black
Creek, as to his being a suitable person, and as to the
suitableness of the place at which he proposed to conduct his
business, and that he presented sufficient proof of all the
other facts required to be shown in order to entitle him to a
license, and, further, that in all other respects he complied
with the law, and was ready and willing to pay to the sheriff
the fees and tax required by law to be paid in such cases.
The plaintiff's application was refused by a vote of
three against and two in favor of issuing license. Plaintiff
further alleges that no evidence was introduced before the
board to show that plaintiff was not a proper person to sell
liquors, nor that the place where he proposed to sell was not
a suitable one, and that the majority of the board who voted
against granting him license did not exercise their
discretion, if under the law they have the right to do so
but, on the contrary, arbitrarily refused to grant license to
all parties who applied for license to sell liquors in the
other incorporated towns of said county. Plaintiff prayed for
a mandamus to compel the defendants to order the sheriff to
issue to them a license to sell liquors at the place
designated in his application. The defendants answered, and
admitted the allegations of the complaint, except the
allegation that the majority of the board did not exercise
their discretion, but arbitrarily refused to grant a license
and this was denied. The defendants further averred:
"That on the first Monday in January, 1904, at the
regular meeting of the board of county commissioners of
Wilson county, the plaintiff filed with said board an
application, in the manner and form required by law, asking
for an order from said board to the sheriff of Wilson county,
directing and commanding said sheriff to issue to the
plaintiff a license to sell spirituous, vinous, and malt
liquors in the town of Black Creek, in the county of Wilson.
That at said meeting a number of other applications were also
filed with said board for a like order. That, in order to
expedite the investigation and consideration of said
applications, the defendant board set the hour of 2 p. m. on
said day as the time at which the investigation and
consideration of said applications should be taken up. That
at said hour the said board entered into investigation and
consideration of said applications, and the balance of the
day was taken up in such investigation and consideration.
That said board then adjourned to meet at 11 o'clock a.
m. of the next day to continue such investigation and
consideration, and that said board met at said hour on the
following day, and continued such investigation and
consideration. That, after an extended investigation and
consideration, the application of this plaintiff and the
application of each of the other parties applying for license
as aforesaid were separately balloted upon by the members of
said board. That, when the ballot on the plaintiff's
application was counted, it appeared that four of the members
of the said board had voted against the granting of the order
asked, and that one of the members had voted in favor
thereof, whereupon the chairman of the board announced that
the plaintiff's application had been rejected." A
copy of the minutes of the said meeting and the adjourned
meeting is attached, and asked to be taken as a part of the
answer. "That the application of this plaintiff and the
application of each and every other person filed with said
board for the purpose of obtaining a license to retail
liquors as aforesaid was separately considered and
investigated by said board, and that the ballot taken thereon
was in each case separate. That said defendant, board of
commissioners of Wilson county, is advised, informed, and
believes, and upon such advice, information, and belief aver,
that the law imposes upon said board the duty and
responsibility of granting or refusing to grant all licenses
to retail spirituous, vinous, and malt liquors in the county
of Wilson, and that the law further imposes upon said board
the duty and responsibility of investigating and considering
and passing upon the suitableness of each and every
application, and the fitness of the place at which said
applicant proposes to carry on business, and the duty of
investigating and considering all other matters and things
pertaining to the issuing of said license, and the proper
regulation thereof, and that the law also vests in said board
a legal discretion in passing upon such application. That the
refusal of the defendant, the board of commissioners of
Wilson county, to grant to the plaintiff a license to retail
liquors as aforesaid, was based upon the exercise of such
legal discretion; and the defendant expressly alleges that it
did exercise such discretion in refusing to grant the
application of the plaintiff, and that such refusal was based
upon, and was for, reasons
which to said board seemed proper. That said board of
commissioners expressly deny that the members thereof, either
as a board or as individuals, or jointly or severally, or by
any agreement, express or implied, arbitrarily refused to
grant to the plaintiff, or to any other person applying
therefor, a license to retail liquor. On the contrary, the
defendant alleges that each application was separately
considered and voted upon, and that, in each and every case
where license was refused, the said board, considering the
responsibility and duty imposed upon it by law, carefully
considered each application in all its phases, and that the
refusal to grant the applicant a license as aforesaid was in
the careful and diligent exercise of the legal discretion
which said board is advised, informed, and believes is vested
in it by law, and was the result of a careful investigation
and consideration of facts known to the members of said
board."
The
case came on to be heard, whereupon the following judgment
was rendered: ""This cause coming on to be heard
and having been heard, now, upon motion of the plaintiff for
judgment upon the pleadings in the cause, and the admission
of the defendants in open court that the plaintiff, L. A.
Barnes, is a proper person to sell spirituous, vinous, and
malt liquors, it is considered, ordered, and adjudged that
the defendant, the board of commissioners of Wilson county,
forthwith assemble at the courthouse in the town of Wilson,
North Carolina, and, after due notice to the plaintiff, hear
such testimony as may be offered at said meeting as to the
question whether the building specified in the
plaintiff's application is a suitable place for carrying
on the business of selling spirituous, vinous, and malt
liquors, and, after hearing such testimony, find whether the
said building is a proper place for carrying on said business
or not, and record its finding upon said question upon the
records of the said board of commissioners of Wilson county.
It is further ordered and adjudged that if the said board of
commissioners shall find that the building specified in
plaintiff's application for license to sell spirituous,
vinous, and malt liquors is a suitable place for carrying on
said business, the said board of commissioners of Wilson
county forthwith issue its order to the sheriff of Wilson
county to issue to the plaintiff license to sell spirituous,
vinous, and malt liquors, as prayed for in his application
heretofore filed with said board, upon the payment by the
said plaintiff of the taxes and fees required by law. It is
further ordered and adjudged that if for any cause the said
board of commissioners of Wilson county, after hearing
testimony as to the suitability of the said building for the
purpose aforesaid, shall fail or refuse to issue the said
order to the sheriff of Wilson county, the said board of
commissioners shall on Friday, the 19th day of February,
1904, show cause before the undersigned judge of the superior...
