Ford Hopkins Co. v. Iowa City

• Decision Date: 15 May 1933
• Docket Number: No. 40782.,40782.
• Citation: 216 Iowa 1286,248 N.W. 668
• Parties: FORD HOPKINS CO. v. IOWA CITY et al.
• Court: Iowa Supreme Court

216 Iowa 1286

248 N.W. 668

FORD HOPKINS CO.

v.IOWA CITY et al.

No. 40782.

Supreme Court of Iowa.

May 15, 1933.

Appeal from District Court, Johnson County; R. G. Popham, Judge.

This is a proceeding instituted by Ford Hopkins Company to obtain a writ of mandamus to compel the mayor, clerk, and city council of Iowa City to grant it a permit to sell cigarettes and cigarette paper. The district court denied the writ, and the Ford Hopkins Company appeals.

Affirmed.

Superseding 240 N. W. 687.Wheeler, Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellant.

Will J. Hayek, of Iowa City, and Clark, Byers, Hutchinson & Garber, of Des Moines, for appellees.

KINDIG, Chief Justice.

The defendant appellee, city of Iowa City, is a municipal corporation, organized under the laws of Iowa, and the other defendants appellees are, respectively, the mayor, members of the council, and clerk of said city. Ford Hopkins Company, the plaintiff appellant, is a foreign corporation engaged in the retail drug business throughout the country. It operates a drug store at Iowa City.

While thus conducting its business at Iowa City, the appellant, on July 26, 1930, filed an application with the city council of Iowa City to obtain a permit to sell cigarettes and cigarette papers, under section 1557 of the 1931 Code. Said 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]. 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.”

After the application of the appellant was thus filed, the city council of Iowa City, on August 1, 1930, passed a resolution granting the permit. During the same council meeting, however, the councilmen adopted a resolution to reconsider, and, upon the reconsideration, the said application of the appellant was denied. Whereupon, the appellant, on October 2, 1930, commenced the present action in the Johnson county district court to obtain a writ of mandamus compelling Iowa City, its council, mayor, and clerk to issue the permit allowing the applicant to sell cigarettes and cigarette papers in Iowa City. The district court denied the writ of mandamus, and the appellant appealed to this court.

[1] I. At the outset, it is argued by the appellant that, because the city council previously had decided to allow the sales of cigarettes and cigarette papers in Iowa City, and had issued permits to certain stores to make such sales, a permit could not now be denied this applicant under the circumstances. To put the thought differently, the appellant contends that the city council may decide the general policy of permitting or not permitting cigarette sales. If the city council decides to permit sales, the appellant contends that then each applicant complying with the statute must receive a permit under section 1557 of the 1931 Code.

A contention similar to that now made by the appellant in this regard was found without merit in Bernstein v. City of Marshalltown, 248 N. W. 26, 28, determined at the January, 1933, term of this court. In the Bernstein Case, we said: “Manifestly, the statute [section 1557 of the 1931 Code] was intended to make the granting of a permit a personal and individual matter between the particular applicant and the city council to whom the application is addressed. When the application is thus made, the city council may, under the statute, grant or refuse a license according to its discretion.”

II. But it is said by the appellant that, even though the city council does have such discretion, it is a legal discretion which cannot be exercised arbitrarily, capriciously or discriminatively. This question is not determined by, but was expressly reserved in, Bernstein v. City of Marshalltown, supra. Because of the facts involved in the present controversy it becomes unnecessary here, as it was in the Bernstein Case, to decide whether the discretion of the city council in the premises is absolute or limited. Under the record in the case at bar, it is apparent that the city council refused the permit to the appellant because it desired to limit the number of permits to sell cigarettes in Iowa City. The number of permits to sell cigarettes and cigarette papers that may be outstanding at any one time was limited by the city council to fifty-one.

[2] While it was indicated by C. Paul Johnson and J. C. Gussman, employees of the appellant company, and Jacob Van Der Zee, a member of the city council, that the permit was refused because the appellant operated a chain store system, yet, on the other hand, W. L. Bywater, Charles Regan, Lou N. Kaufman, and LeRoy S. Mercer, members of the city council, and J. J. Carroll, the mayor, of Iowa City, testified for the appellees that the sole and only purpose in denying the permit was to limit the number of permits in order to better police the permittees and thereby protect the school children of the community who were minors. There is a prohibition in the statute against selling cigarettes to minors. Many schools are located at Iowa City. Included among the number is the state university, the university high school, the Iowa City high school, grade schools, and parochial schools. According to the record, three thousand minors attend the state university annually. Ford Hopkins Company, the appellant, has located its store in a prominent part of the city “where young people are passing all the time. They have an attractive front. * * * It has a tendency to bring boys and girls into that store.”

Cigarettes apparently had been sold to, and used by, minors, and the council and police force were anxious about controlling the sale and use of cigarettes in the community. Charles Regan testified for the appellees, concerning his reason for voting to limit the number of permits, as follows: “I believed that we had enough (stores selling cigarettes), as I had the thing brought to my attention by my daughter where two minor friends of hers were trying to buy cigarettes at some of our other stores and they were unable to buy them a couple of months ago. I do not believe in young girls or minors smoking. I have taken the same stand as to all other applicants subsequent to the refusal of the Ford Hopkins Company in August, 1930. Joseph Rinello (another applicant for a permit to sell cigarettes), is a resident of Iowa City, Iowa. I do not know that he runs a chain store, I know that he was not granted a permit.”

L. N. Kauffman testified for the appellees as follows: “I voted against granting a license to the Ford Hopkins Company (the appellant). In so voting, I was not actuated by any desire to injure their place of business or treat the company unfairly. The fact that it was a chain store did not enter into my decision. * * * I thought for a long time that there was enough permits issued and it was time to call a halt, and I voted no.”

The other members of the city council who testified for the appellee made statements to the same effect. Not only was the permit denied the appellant, but likewise permits were denied many other stores on the theory that to issue such additional permits would be to exceed the aforesaid limit fixed. When considering the entire record, we are constrained to hold that the preponderance of the testimony indicates that the city council refused the appellant the permit to sell cigarettes and cigarette papers because of its desire, based upon substantial grounds, to limit the number of permits in the community. This conclusion is in accordance with that reached by the district court.

[3] Moreover, as was said in City of Buffalo v. Hill, 79 App. Div. 402, 79 N. Y. S. 449, reading on page 451: “In an action of this kind, the motives-the animus-of the individual members who compose the council are not pertinent. The presumption always is that in the exercise of a discretionary power by any executive or legislative body a proper motive and a valid reason existed for its action. A public declaration of its reasons would neither be wise nor beneficial, for ordinarily it would not allay the irritation of the one deprived of the favor sought, and the people of the city at large have little concern in the exercise of those official functions which relate to an individual. In considering the question of authority, therefore, we must do so upon the assumption that the municipal body has intended to act for the benefit of the public at large, and that the refusal to grant the license was based upon reasons which it deemed adequate for that action.”

[4] A city council may refuse to issue a permit to the appellant because to do so would exceed the limit of permits, fixed for the publicbenefit. Such limit thus fixed for permits is not arbitrary, capricious, nor discriminatory. As said in State ex rel. Brown v. Stiff, Mayor, 104 Mo. App. 685, 78 S. W. 675, reading on page 676: “It may be apparent to the council that too many are engaging in the business for the well-being of the town, and it may be manifest that the place where it is sought to be located is not for the best.” For authorities in support of the text quoted, see In re Jugenheimer, 81 Neb. 836, 116 N. W. 966 local citation, 969, 18 L. R. A. (N. S.) 386;Jugenheimer v. State Journal Company, 81 Neb. 830, 116 N. W. 964 local citation, 966; Fraser v. Hunter, 96 Neb. 134, 147 N. W. 124 local citation, 125; Enos v. Hanff, 98 Neb. 245, 152 N. W. 397 local citation, 401; State ex rel. Hawkins v. Harris et al. (Mo. App.) 239 S. W. 564.

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