Burnham Hotel v. City of Cheyenne

Citation30 Wyo. 458,222 P. 1
Decision Date22 January 1924
Docket Number1134,1135
PartiesBURNHAM HOTEL v. CITY OF CHEYENNE; R. R. DODGE & COMPANY v. SAME
CourtWyoming Supreme Court

APPEAL from District Court, Laramie County; HARRY P. ILSLEY, Judge.

Action by the Burnham Hotel Company and R. R. Dodge and Company respectively, against the City of Cheyenne to recover unearned license money under liquor licenses rendered inoperative before the expiration of the license period. Judgment in each case for defendant and plaintiffs appeal.

Affirmed.

H Donzelman for Appellants.

The case involves an interpretation of Chapter 100, Laws 1919 providing that license authorities may refund unearned license money. The leading case is Supp'rs. v. U. S. 4th. Wall. 435. The word "may" as used in the Statute is tantamount to "shall." Ralston v. Crittenden, 13 F. 508; Hayes v. County, 33 P. 766; P. Coast Co., v. Wells, 66 P. 657; Otis v. San Francisco, 148 P. 933. Same rule followed in Idaho, State v. Surety Co., 152 P. 189 and in Oregon; Smith v. Sheriff, 12 P. 8; Kahn v. Sheriff, 20 P. 629, see also Endlick Int. Stats. 310, Arizona Com. v. Heralds of Liberty, 154 P. 202. The Illinois Court supports the same rule, Traders Ins. Company v. Humphrey, 109 Ill.App. 246, and also People v. Buffalo County, 4 Neb. 150; the Missouri cases support the same doctrine, State v. King, 36 S.W. 681; Deming v. Const. Co., 136 S.W. 740. The reason for the rule is well expressed in Jordan v. Davis, (Okla.) 61 P. 1063, the case of Peterson v. Guernsey (Wyo.) 183 P. 645 was decided independent of the act in question. In Blum Co. v. Hastings, (Fla.) 79 So. 442, decided independent of Statute, it was held that in justice and fairness, unearned license money should be remitted. It is supported by Sharp v. Carthage, 48 Mo.App. 26. The Florida Court criticises contrary doctrines announced; in Roberts v. Boise City, 23 Ida. 716 and McGinnis v. Meddway, 176 Mass. 67. Bender v. City of Fergus Falls, 131 N.W. 849 holds contrary to the general rule, but is unsupported by authority. Other cases supporting the general rule are, Harrison v. Wissler (Va.) 36 So. E. 982; City of Portland v. Albee 135 P. 897; Kime v. Thompson (Ore.) 118 P. 174; State v. Holt County 39 Mo. 521; Pierson v. Seattle, 44 P. 884; School Dist. v. Thompson, 71 N.W. 728; Chamberlain v. Tecumseh, 61 N.W. 632; Bart v. County, 31 L. R. A. 1151; State v. Weber (Neb.) 31 N.W. 534; State v. Cornwell, (Neb.) 11 N.W. 729; Allsman v. Oklahoma City, 95 P. 468; Scott v. Trustees, (Ky.) 21 L. R. A. (NS) 112; Nurnberger v. Town, 20 S.E. 14; Krueger v. Colville, (Wash.) 95 P. 81. The title of the act is always a guide as to legislative intent. Suth. Statutory Const. 279; U. S. v. Fisher, 2 Cranch 358; Holy Trinity Church v. U. S. 143 U.S. 457; Bark v. Eudora, 190 U.S. 169; U. S. v. U. P. Ry., 91 U.S. 72; U. S. v. Nakashima, 160 F. 842; Price v. Forrest, 173 U.S. 410, Hahn v. Salmon, 20 F. 801; Copeland v. Memphis Ry. Co., 6 F. Cas. No. 3209; City Treasurer v. Goff, 3 A. 591. In Moore v. Chartiers Co. 65 A. 936 appears a striking instance of the use of the title of an act to interpret its meaning, and in Wemberly v. Ry. Co. 63 S.E. 29 it was also held that nothing is more pertinent toward ascertaining the true intention than the title of the act. Our Constitution requires the subject to be clearly expressed in the title. Art. III, Sec. 24 Const. The title here directs Boards of County Commissioners to rebate and refund unearned license money.

T. Paul Wilcox for Appellee.

In Peterson v. Guernsey 26 Wyo. 272, 183 P. 645, it was held that in the absence of statutory authority to refund there can be no recovery of unearned license money; appellant contends that the word "may" as used in Chap. 100, Laws 1919 means "shall;" the rule is that the word "may" shall be construed in a mandatory sense only where that intent is apparent from the statute, 20 A. & E. Ency p. 237, 36 Cyc. 1157-1159; the apparent intent must govern. Harvester Co. v. Lumber Co., 25 Wyo. 372; Morse v. Co., 75 N.Y.S. 976, 5th Words and Phrases 4420; Sedgwick 377; Thompson v. Lessee, 22 How. 434; Allistock v. Paige, 77 Va. 390; Dillingham v. Spartenbury, 8 L. R. A. (NS) 412. The identical point was decided in Bender v. City, 115 Minn. 66, 131 N.W. 849 against appellant's contention and also in State v. Ritter (Wash.) 134 P. 492; the former statute provided that there should be no refundment of license fee in any case; the amendment by Chap. 100, Laws 1919 made it discretionary; the money was paid voluntarily and cannot be recovered. Peyton v. Hot Sprgs. Co., 53 Ark. 236, 13 S.W. 764; Monroe Co., v. Kreuger, 88 Ind. 231; Wood v. School Dist., 115 N.W. 308, 15 L. R. A. (NS.) 478; McGinnis v. Medway, 176 Mass. 67, 57 N.W. 210; Trainor v. Co., 2 Ore. 214; City of Fitzgerald v. Witchard, 130 Ga. 552, 61 S.E. 227, 16 L. R. A. (NS.) 518; Company v. Village, (Minn.) 170 N.W. 704. Chap. 100, Laws 1919 as originally introduced contained the word "shall" but on its passage the word "may" was substituted, clearly showing that the Legislature intended the act to operate as a permissive, and not as a mandatory statute, House Jour. 15th. Leg. p. 32.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

These two cases involve identical questions. Both were brought against the City of Cheyenne to recover unearned license money under liquor-licenses issued to plaintiffs by the county of Laramie and the City of Cheyenne in the early part of 1919 and which became inoperative at midnight of June 30, 1919, when the so-called prohibition act passed by the Legislature at its session in 1919 went into effect, at which time only a part of the period of the licenses in question had run. The pro tanto amount for the unexpired terms of the licenses is sought to be recovered herein. The lower court sustained the demurrers filed to the petitions, and plaintiffs not pleading further, judgment was in each case entered for the defendant.

Plaintiffs seek to recover under the authority of the provisions of chapter 100 of the Session Laws of 1919. The title of that act is in part as follows:

"An act directing the boards of county commissioners and the city commissioners and city councils of any incorporated city in the state of Wyoming, to rebate and refund so much of any license moneys paid" etc.

The act itself provides in part as follows:

"That whenever it shall become unlawful by reason of any United States law, or by reason of any state law, for any person * * * to be engaged in the retail liquor business in the state of Wyoming before the expiration of the full period for which a license authorizing the sale of liquors, wines and beer shall have been issued * * * the board of county commissioners of the respective counties in the state of Wyoming, and the city commissioners and city councils of any incorporated city in the state of Wyoming, who may have issued such license, may refund to the person, persons, company or corporation who have paid the full license money provided by law, such an amount of the license money paid as will cover the period of time, when by the laws of the United States, or of the state of Wyoming, it shall have become unlawful for any person, persons, company or corporation, to be engaged in the retail liquor business in the state of Wyoming." (Italics are ours.)

Most of the money sought to be recovered herein was paid for county licenses issued by the county of Laramie. Under the law of the state as it stood prior to June 30, 1919, all liquor-license money paid for county licenses was paid into the treasury of the incorporated cities and towns where the licensee was located.

It is the contention of counsel for appellant that, especially in view of the title of the foregoing act, mandatory in form the provision for a refund should be considered mandatory, and that the words "may refund" should be construed to mean "shall refund." Where the language of a statute is ambiguous, its meaning may frequently be ascertained by resort to the history of its passage through the legislature (36 Cyc. 1138), and this we shall proceed to do in this case. The act above set out was originally House Bill No. 9. The bill as introduced contained the words: "shall refund" instead of "may refund," and had the bill passed in that form, no question could have arisen respecting its proper construction or meaning. It would then have unconditionally required a refundment. But it was not so enacted. While the journal of the House is somewhat confusing, the notation on the original bill, (which we have a right to consider: 36 Cyc. 1138) makes it perfectly clear that it was amended in the house by substituting the word "may" for "shall," in connection with the provision for refunding, and as so amended the bill passed both houses and in that form was signed and approved by the Governor. Here is manifest a deliberate change, notwithstanding the fact that the title to the bill was left as originally drawn, and this deliberate change seems clearly to indicate the purpose to leave the matter of refunding within the discretion of the county and municipal authorities. This is the view taken in the case of Bender v. City of Fergus Falls, 115 Minn. 66, 131 N.W. 849, a case nearly parallel to the case at bar. To the same effect is Rea v. Cook, 217 Mass. 427, 105 N.E. 618, where it was said that the deliberate refusal of the legislature to adopt a word which plainly would have conferred discretionary power upon the local boards and officers, in place of one whose natural purport would compel them to grant a permit, is significant of a settled intention to use the imperative. The title of the act is resorted to for construction only in doubtful cases and cannot overcome the plain...

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