Darby v. Pence

• Decision Date: 12 February 1910
• Citation: 17 Idaho 697,107 P. 484
• Court: Idaho Supreme Court
• Parties: EDWARD DARBY and W. D. SCOLLARD, Partners Under the Firm Name of DARBY & SCOLLARD, Respondents, v. JOSEPH T. PENCE, Mayor, and ROBERT AIKMAN, J. A. BLOMQUIST, W. S. WALKER, and E. J. MCAULEY, as the Common Council of Boise City, Ada County, Idaho, Appellants

107 P. 484

17 Idaho 697

EDWARD DARBY and W. D. SCOLLARD, Partners Under the Firm Name of DARBY & SCOLLARD, Respondents, v. JOSEPH T. PENCE, Mayor, and ROBERT AIKMAN, J. A. BLOMQUIST, W. S. WALKER, and E. J. MCAULEY, as the Common Council of Boise City, Ada County, Idaho, Appellants

Supreme Court of Idaho

February 12, 1910

INTOXICATING LIQUORS-MUNICIPAL CONTROL-LICENSE-MANDAMUS.

1. Under the provisions of subd. 8 of sec. 42 of the charter of Boise City, power and authority is granted to the municipality to license, tax, regulate, restrain and control the sale of intoxicating liquors.

2. The provision in sec. 466 of the ordinances of Boise City as follows, "The common council shall, if the applicant for a license is, in the opinion of the council, a proper person to carry on a liquor business, as mentioned in the ordinances of Boise City, make an order that the city clerk issue a license to such person or persons upon the payment to him of the sum required for the particular kind of license applied for," confers upon the council the right and power to determine the qualification or fitness of an applicant to receive a license, and the action of such council in such matter cannot be controlled by writ of mandate.

3. Where a statute or city ordinance provides that the authority empowered to issue a license to sell intoxicating liquor may determine the expediency of issuing such license or the qualification or fitness of an applicant, and no provision is made for reviewing such action, the determination of such question by such authority is final and cannot be controlled by mandamus.

4. Where a court or board of officers is vested with a judicial discretion as to the grant or refusal of license, and in the exercise of such discretion examines and rejects a particular application for license, mandamus will not lie to review the case and compel the granting of a license, unless it appear that such discretion has been abused and the court, board or officer acted arbitrarily or in an unlawful manner.

5. Where, under the ordinances of Boise City, the common council of said city have rejected an application for a license to sell intoxicating liquors, upon the ground that the applicant is an unfit person to carry on such business, such action of the council will not be reviewed by the court upon an application for a writ of mandate, even though it is alleged in such application that the applicant was a person of good moral character and fit to carry on such business.

6. It is now recognized as the law of this state that no person has any vested or inherent right to engage in the sale of intoxicating liquors, and that the business is entirely under the control of the state, and the legislature having vested the city of Boise with the power to tax, regulate, control and restrain the business, the power, to the extent of the grant thus vested, will not be reviewed or interfered with by the courts as long as the council in exercising such power does not run counter to the provisions of the constitution and laws of the state.

7. Under the provisions of the ordinances of Boise City regulating applications for license to sell intoxicating liquors, the applicant is not entitled to a hearing upon such application, and the ordinance leaves entirely to the council the method or means by which they may satisfy themselves as to the fitness or qualification of the applicant to receive a license.

8. The provision in sec. 466 of the ordinances of Boise City, making the council the judge of the fitness of an applicant to receive a license, and giving such council the right to refuse a license to all persons deemed by them unfit to carry on such business, thereby prohibits such persons from engaging in such business, but is not a prohibition against the business.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Application for writ of mandate to compel the common council of Boise City to issue to respondents a license to sell intoxicating liquor. Judgment for plaintiffs. City appeals. Reversed.

Judgment reversed and the trial court directed to sustain the demurrer to the application. Costs awarded to appellants. Petition for rehearing denied.

F. B Kinyon, for Appellants.

In those jurisdictions where the courts have interposed to prevent an abuse of the discretion of inferior tribunals such as county courts, city councils, etc., in granting or refusing liquor licenses, it has also been held that the record must clearly show an arbitrary and unlimited exercise of such discretion. (Hoglan v. Commonwealth, 3 Bush (66 Ky.), 147; Zanone v. Mound City, 103 Ill. 552; Merrill on Mandamus, sec. 41, p. 45, citing State v. Benton, 25 Neb. 834, 41 N.W. 793; Davis v. County Commissioner, 63 Me. 396; State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314; Vincent v. Bowes, 78 Mich. 315, 44 N.W. 276; Manor v. McCall, 5 Ga. 522; Detroit etc. Co. v. Gartner, 75 Mich. 360, 42 N.W. 968.)

The right to keep a dramshop is a municipal privilege and not a legal right. (State ex rel. Gazzalo v. Hudson, 13 Mo.App. 61.)

Hawley, Puckett & Hawley, for Respondents.

Where the authorities of a city have in the arbitrary exercise of their discretion refused, without sufficient reason, to issue a dramshop license to one admitted to be a suitable person, they will be compelled by mandamus from the supreme court to issue such license. (Zanone v. Mound City, 103 Ill. 552.)

The city council cannot arbitrarily refuse to issue a license to one man or firm and grant a license to others; there must be some good reason actuating the city authorities in such refusal, especially where the business has already been carried on by the applicants. (East St. Louis v. Wehrung, 50 Ill. 28; People ex rel. Besse v. Village of Crotty, 93 Ill. 180; Prather v. People, 85 Ill. 36; Hoglan v. Commonwealth. 3 Bush (66 Ky.), 147; Thompson v. Koch. 98 Ky. 400. 33 S.W. 96; In re Excise License, 38 N.Y.S. 425; Jones v. County Commrs., 106 N.C. 436, 11 S.E. 514.)

What is reasonable or unreasonable is a question of fact according to circumstances, and it is the duty of the court to determine the question as a question of fact, allowing for circumstances. (Champer v. City of Greencastle, 138 Ind. 339, 46 Am. St. 390, 35 N.E. 14, 24 L. R. A. 768; State v. Borough of Washington, 44 N.J.L. 605, 43 Am. Rep. 402.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART. J.

This is an application for a writ of mandate, by which petitioners seek to compel the mayor and council of Boise City to issue to them a license to retail intoxicating liquors. It appears from the affidavit that the petitioners are partners doing business under the name and style of Darby & Scollard, and are engaged in the retail liquor or saloon business, and have been so engaged for more than two years, at 825 Main street, Boise City, Idaho; that on July 1, 1909, the petitioners paid the United States revenue license provided for and made necessary under the laws of the United States, entitling them to conduct the business of retail dealers until July 1, 1910, and on or about Apr. 1, 1909, paid the county and state licenses provided for by the laws of Idaho, and that such license expires on Apr. 1, 1910, and that both the United States and state licenses were in full force and effect at the time they made application, under the ordinances of Boise City, for a city license; that on Sept. 29, 1909, the petitioners filed with the clerk of Boise City, for presentation to the mayor and common council, an application and request for license to carry on said retail liquor and saloon business for six months from and after, and inclusive of, Oct. 1, 1909, and paid to the city clerk the sum of $ 600, the same being the semi-annual license for carrying on said business for six months, and requested the mayor and common council for a license authorizing them to conduct the retail liquor business in said city; that at a regular meeting of said city council held on Apr. 30, 1909, the matter of granting a license for said business to the petitioners and others came on for hearing, and that thereupon the following proceedings were had with reference thereto by said common council, to wit:

"On motion of McAuley the licenses of the following retail liquor dealers were denied, for the reason that the applicants were not considered proper persons to carry on the liquor business: Hillock & Smith, Arc Light Saloon; Bedal Bros., Montreal Saloon; S. A. McLaughlin, Mint Saloon; Darby & Scollard, Maple Bar; W. H. Rich, Alcove Bar."

And thereby denied said application and request of petitioners for license; that thereafter and on Oct. 1, 1909, the plaintiffs made further demand that such license issue and said request was denied, and petitioners requested the common council of Boise City for a hearing for the purpose of determining whether or not there was legal cause or reason for denying such license, and said request was denied. The petitioners then allege that they have been engaged in the retail liquor business in Boise City for the last two years that they have not knowingly violated any statute of the United States or the state of Idaho or any ordinance of Boise City, and that "each of them is a fit and suitable person to conduct such business, and that no interest of said Boise City would be in any way subserved by reason of the plaintiffs not receiving the license herein mentioned"; that no complaint has ever been made to the mayor or common council for any infraction of the laws or ordinances, and no complaint or charge has ever been made or filed showing or tending to show that the plaintiffs and petitioners, or either of them, were not fit persons...