Curtis v. De Good

• Decision Date: 14 October 1947
• Docket Number: 46998.
• Parties: CURTIS v. DE GOOD, Mayor, et al.
• Court: Iowa Supreme Court

29 N.W.2d 225

238 Iowa 877

CURTIS v. DE GOOD, Mayor, et al.

No. 46998.

Supreme Court of Iowa

October 14, 1947

Ralph H. Munro, of Fairfield, for appellants.

Jones & White and W. E. Dullard, all of Ottumwa, for appellee.

MANTZ Justice.

H. V. Curtis plaintiff herein, a resident of Richland, Keokuk County Iowa, was the holder of a class 'B' beer permit in the city of Batavia, for the year ending June 30, 1946. He had held like permits for a number of years. About a month prior to the termination of said beer permit, plaintiff took steps to have the same renewed, and caused to be presented to the city council of Batavia a paper purporting to be an application for a renewal of said permit. This application was presented to the city council by Frank Howard, who was in charge of the establishment where the permit was used. The council denied such request. Plaintiff thereupon brought this action, alleging in substance that under the showing he was entitled to have a permit issued and that the city council in refusing such permit, acted arbitrarily, illegally, and in violation of his rights. The defendants affirmatively denied plaintiff's allegations; alleged that the plaintiff had failed to comply with the law in presenting a proper application; that he had not shown himself entitled to receive such permit and that the council of Batavia, Iowa, in refusing to issue said permit acted in a legal manner and within its rights. The trial court found for the plaintiff holding that the city council acted illegally and arbitrarily and in violation of plaintiff's rights and ordered said council to forthwith issue plaintiff a class 'B' beer permit as provided by law. Following the submission of the case, and within the statutory time, appellants moved the court for a new trial, setting forth that they had available newly discovered evidence relevant and material to a proper decision of the case. This motion was overruled. This appeal followed.

The plaintiff-appellee, in pleading, set forth the various grounds relied upon to obtain the relief sought and asked that the court issue a peremptory writ of mandamus directed to the appellants commanding the issuance forthwith of a class 'B' permit in favor of appellee. On July 20, 1946, during the progress of the trial, and evidently upon the suggestion of the trial court, plaintiff filed an amendment to his petition reciting that the amendment was filed pursuant to Rule 107, Iowa Rules of Civil Procedure, and in said amendment asked relief by certiorari. Later, by answer the defendants denied that plaintiff came within the provisions of Rule 107 and asserted that plaintiff was entitled to no relief, either by mandamus or certiorari.

Whether plaintiff's remedy is properly by mandamus or by certiorari is not directly argued in this appeal and we will assume for the purpose of this case that the procedure ordered and taken was proper. However, we desire to call attention to the holding of this court in the case of Madsen v. Town of Oakland, 219 Iowa 216, 257 N.W. 549.

In pleading, evidence, and argument, appellants contend that the beer permit, while purportedly asked for by the appellee, H. V. Curtis, in truth and in fact was being sought for the use and benefit of Frank Howard, a nephew of appellee, and that said Howard was ineligible to receive same; that he was morally unfit to operate thereunder, and also, was ineligible in that prior thereto he had been convicted of a crime. They contend that Frank Howard was the real applicant.

The trial court ignored such claim, holding that the inquiry must relate solely to the qualifications of appellee, H. V. Curtis.

As we understand the record, one of the principal questions in the case is whether or not appellee, H. V. Curtis, made a legal and proper application to the city council of Batavia, Iowa, for a class 'B' beer permit within the provisions of Chapter 124 of the Code of Iowa, 1946, and if so, did said council arbitrarily exceed its powers in failing, neglecting, and refusing to issue to him such permit. If the application did not comply with the statute, the appellee cannot prevail.

Incidentally, and in connection therewith, there is made and argued the claim that the court erred in ordering the said city council to forthwith issue such permit. It is also argued that the court erred in denying appellants a new trial.

Inasmuch as the last two matters above set forth are involved in and directly connected with the first matter above set forth, we will consider them together.

In order to have a better understanding of the issues in the case, we think it will be helpful to set out some additional facts shown by the record.

I. The appellee, H. V. Curtis, did not live in Batavia and had never lived there. However, for some years he had held a class 'B' beer permit authorizing him to sell beer in said city. His establishment there was operated by a manager or agent. When the case was tried he held a like permit in the city of Fairfield, Jefferson County, Iowa. He resided in Richland, Keokuk County, Iowa. At the time the case was tried, Curtis was a mechanic and contractor in Richland, Iowa, and it clearly appears from the record that he spent very little time at the Batavia establishment, leaving its control and management to others.

During much of the time appellee held a beer permit in Batavia, the establishment was operated by Frank Howard, a nephew of appellee. Appellee referred to him as his manager. As a witness Curtis testified that Frank Howard had managed the place for a number of years but that Mrs. Frank Howard 'is going to be manager from this time on.' That said Howard, prior thereto, had been convicted of two felonies in Jefferson County, Iowa, stands uncontradicted. These convictions were in 1926--he was committed to the Men's Reformatory at Anamosa, Iowa, from which place he was paroled and discharged.

While the evidence is in conflict, there is in the record evidence that during the time Frank Howard was operating the Batavia establishment, under the beer permit of appellee, liquor had been consumed there, persons had been there in an intoxicated condition, and complaints had come to the city council that a slot machine had been operated there.

Prior to the enactment of Chapter 37, Acts of the 45th General Assembly of Iowa, it was unlawful to manufacture or keep for sale beer within the State of Iowa. The law upon that subject is now found in Chapter 124, Code of Iowa of 1946. While some changes have been made in that enactment, still the essential parts thereof remain unchanged. Such act authorizes the sale of beer in cities and towns under certain conditions and restrictions. Code section 124.1 provides: 'Permit required. It shall be unlawful for any person to manufacture for sale or sell beer unless a permit is first obtained as provided for in this chapter.'

Code section 124.2, paragraph 8, provides: "Application' shall mean a formal written request for the issuance of a permit supported by a verified statement of facts.'

Appellee, by pleading, states that on June 3, 1946, he made proper and legal application to the mayor and city council of Batavia, Iowa, for the issuance of a class 'B' permit as provided by law.

Code section 124.9 provides:

'Class 'B' application. Except as otherwise provided in this chapter a class 'B' permit shall be issued by the authority so empowered in this chapter to any person who: '1. Submits a written application for a permit, which application shall state under oath:

'a. The name and place of residence of the applicant, and the length of time he has lived at such place of residence.

'b. That he is a citizen of the state of Iowa.

'c. The place of birth of the applicant, and if the applicant is a naturalized citizen, the time and place of such naturalization.

'd. The location of the place or building where the applicant intends to operate.

'e. The name of the owner of the building and if such owner is not the applicant, that such applicant is the actual lessee of the premises.

'f. That the place of business for which the permit is sought is and will continue to be equipped with sufficient tables and seats to accommodate twenty-five persons at one time, and is located within a business district or an area now or...