Bernstein v. City of Marshalltown

• Decision Date: 04 April 1933
• Docket Number: No. 41165.,41165.
• Citation: 248 N.W. 26,215 Iowa 1168
• Parties: BERNSTEIN v. CITY OF MARSHALLTOWN et al.
• Court: Iowa Supreme Court

215 Iowa 1168

248 N.W. 26

BERNSTEIN

v.CITY OF MARSHALLTOWN et al.

No. 41165.

Supreme Court of Iowa.

April 4, 1933.

Appeal from District Court, Marshall County; B. O. Tankersley, Judge.

This is a proceeding, instituted by A. H. Bernstein, to obtain a writ of mandamus to compel the city council of Marshalltown to grant him a permit to sell cigarettes and cigarette papers. The district court allowed the writ, and the city of Marshalltown and other defendants appeal.

Reversed.

UTTERBACK, ALBERT, and KINTZINGER, JJ., dissenting.R. A. Rockhill, of Marshalltown, for appellants.

A. B. Hoover, of Marshalltown, for appellee.

KINDIG, Chief Justice.

The defendant-appellant, city of Marshalltown, is a municipal corporation organized under the laws of Iowa, and the other defendants-appellants are, respectively, the mayor, clerk, and members of the council of said city.

For some years, the plaintiff-appellee, A. H. Bernstein, has been a resident of the city of Marshalltown. He there operates a wholesale and retail newspaper and magazine business. In conjunction with that business, the appellee desired to sell cigarettes and cigarette papers. Accordingly, on January 12, 1931, he filed with the city clerk of Marshalltown his application for a permit to sell cigarettes and cigarette papers, in an attempt to comply with section 1557 of the 1931 Code. That section provides: “No person shall sell cigarettes or cigarette papers without first having obtained a permit therefor in the manner provided by this chapter [chapter 78 of the 1931 Code, § 1552 et seq.]. Such permit may be granted by resolution of the council of any city or town under any form of government and when so granted, may be issued by the clerk of such city or town. If issued to a person for use outside of a city or town such permit may be granted by resolution of the board of supervisors and when so granted shall be issued by the auditor of the county. Such permit shall remain in force and effect for two years following the July first after its issuance, unless sooner revoked.”

Immediately following the foregoing section of the statute is section 1558, which reads:

“Such permit shall:

1. Be granted only to a person owning or operating the place from which sales are to be made under the permit.

2. Not be transferable.

3. Be numbered and show the name and the residence of the person to whom granted and the place of business of the holder where sales are to be conducted under said permit.”

When the appellee submitted his application for the permit to the city council of Marshalltown, it was rejected. Consequently the appellee, on January 17, 1931, instituted the present proceedings for a writ of mandamusto compel the city of Marshalltown, its clerk and council, to issue the permit.

In response to the appellee's petition, the appellants answered, and the cause was tried in the district court. As a result of that trial, the writ of mandamus was issued, requiring the city of Marshalltown, its clerk and council, to grant the appellee the permit. From the judgment thus entered, the appellants appeal.

I. It is argued by the appellee that permits to sell cigarettes and cigarette papers had been granted by the appellants, under section 1557 of the 1931 Code, to other persons in Marshalltown. These permits, the appellee declares, are in full force and effect, and are being used by the respective permittees. Such was the situation, the appellee says, when he made the application for the aforesaid permit. So the appellee concludes that the city of Marshalltown, having elected to permit the sale of cigarettes and cigarette papers within its jurisdiction, must thereafter issue permits to any one applying therefor.

[1] On the other hand, it is argued by the appellants that the fact that permits to sell cigarettes and cigarette papers may have been issued to others is no criterion for the proposition that a similar permit must be issued to the appellee. Under the sections of the Code involved, there is contemplated an independent action of the city council in issuing a permit to each separate applicant. There is nothing in the legislation to indicate a general action by the city council in the nature of a blanket resolution to cover every application presented then and in the future, regardless of the circumstances surrounding each applicant. According to the statute, “no person shall sell cigarettes or cigarette papers without first having obtained a permit therefor in the manner provided by this chapter.” Clearly there is not a hint in the statute that a general resolution by the city council shall apply to all applicants, regardless of the individual merits of each. When an individual application for a permit has been granted, the fact must, under section 1560 of the same chapter, in each case be certified to the treasurer of state.

The whole history, theory, and purpose of the statute indicates that each individual application is to be considered on its merits. Taking into consideration, as we must, the history, theory, and purpose of the statute, it is plain to see that the permit is a trust granted by the proper local authority. It is a trust to do, under certain limitations, a thing otherwise forbidden by law. A permit, therefore, renders the holder immune from prosecution for that which, but for the permit, would be a public offense.

[2] Our Legislature, acting under the police power of this state, declared the sale of cigarettes and cigarette papers objectionable and against the public policy of this state. Such declaration of the Legislature is still in effect. Section 1557, above quoted, therefore, is distinctly and essentially a police regulation. By the very terms of the statute, the duty is imposed upon the city council (or board of supervisors) to determine who may be thus rendered immune from criminal prosecution. Evidently the Legislature used the word “may” advisedly and intentionally. As said in Kelley v. City of Cedar Falls, 123 Iowa, 660, reading on page 661, 99 N. W. 556, 557:

“The primary or ordinary meaning of the word ‘may’ is undoubtedly permissive and discretionary. Century Dict. And in a statute or ordinance it can be construed in a mandatory sense only ‘where such construction is necessary to give effect to the clear policy and intention of the Legislature; and where there is nothing in the connection of the language or in the sense or policy of the provision to require an unusual interpretation, its use is merely permissive and discretionary.’ 20 Am. & Eng. Enc. of Law (2d Ed.) 237; Downing v. City of Oskaloosa, 86 Iowa, 352, 53 N. W. 256; Bouvier's Law Dict. 218.” The following cases sustain the rule announced in Kelley v. City of Cedar Falls, above quoted: Queeny v. Higgins, 136 Iowa, 573, local citation, 574, 114 N. W. 51;Downing v. City of Oskaloosa, 86 Iowa, 352, 53 N. W. 256;Lyons v. Gram, Commissioner of Labor Statistics, etc., 122 Or. 684, 260 P. 220;Doben v. Board of Health of City of Paterson, 127 A. 38, 3 N. J. Misc. 38;Samuels v. Couzens, Mayor, 215 Mich. 328, 183 N. W. 925; People ex rel. Dorr v. Thacher, 42 Hun, 349 (N. Y. 1886).

There is nothing in the purpose or context of the statutes under consideration to indicate that the Legislature intended the word “may” to mean “shall” or ““must.” The necessity for giving the word “may” such an extraordinary or unusual meaning is not present. On the contrary, there is every indication in the context of the statutes, and in the purpose and history thereof, that the Legislature intended “may” to express, as it generally and ordinarily does, the thought of discretion. This conclusion is supported by the following, as well as by the foregoing, considerations.

[3] When acting in the premises, the Legislature was dealing with police regulation of cigarettes and cigarette papers, the sale of which under the public policy of the state, as declared by the Legislature, is considered illegal and dangerous to the public health and morals. So, when the appellee made application for a permit, he was not demanding an absolute right, but rather asking for a privilege as a matter of grace. State v. Nossaman, 107 Kan. 715, 193 P. 347, 20 A. L. R. 921;West v. Bishop, Judge, 110 Iowa, 410, 81 N. W. 696.

“The power given to a municipality to license and regulate an occupation or privilege imposes no obligation on it to grant any licenses; but includes the power to refuse a license in a particular case, even where the statutory or preliminary requirements are complied with.” 37 Corpus Juris, 182, § 28. See, also, section 29. For supporting authorities, see 37 Corpus Juris, 187, 188, § 37; 37 Corpus Juris, 240, § 97; 15 Ruling Case Law, 306, § 63; State ex rel. and to Use of Oetker v. Johnson et al., Judges (Mo. App.) 211 S. W. 682;Noble v. English, 183 Iowa, 893, 167 N. W. 629;Cecil v. Toenjes, 210 Iowa, 407, 228 N. W. 874;Marquis v. City of Waterloo, 210 Iowa, 439, 228 N. W. 870;Talarico v. City of Davenport et al. (Iowa) 244 N. W. 750;Gundling v. City of Chicago, 177 U. S. 183, 20 S. Ct. 633, 44 L. Ed. 725;Taylor v. Smith, 140 Va. 217, 124 S. E. 259;Yee Bow v. City of Cleveland, 99 Ohio St. 269, 124 N. E. 132, 12 A. L. R. 1424;Tighe v. Osborne, 150 Md. 452, 133 A. 465, 46 A. L. R. 80;Burgess et al. v. Mayor and Aldermen of the City of Brockton, 235 Mass. 95, 126 N. E. 456;State ex rel. Labovich et al. v. Redington, City Clerk, 119 Minn. 402, 138 N. W. 430;People ex rel. Schwab v. Grant, Mayor, 126 N. Y. 473, 27 N. E. 964;Austin v. State, 101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703;State v. Packer Corporation, 77 Utah, 500, 297 P. 1013;Adams v. Stephens, Clerk, 88 Ky. 443, 11 S. W. 427;State v. Thompson, 160 Mo. 333, 60 S. W. 1077, 54 L. R. A. 950, 83 Am. St. Rep. 468;State ex rel. Smith v. Town of Ravenswood, 104 W. Va. 614, 140 S. E. 680;Thorpe v. Mayor & Aldermen of the City of Savannah, 13 Ga. App. 767, 79 S. E. 949;State ex rel. Brown v. Stiff, Mayor, 104 Mo. App. 685...