Geer v. Stathopulos

• Decision Date: 01 April 1957
• Docket Number: No. 18131,18131
• Citation: 135 Colo. 146,309 P.2d 606
• Parties: Edward O. GEER, as Manager of Safety and Excise of the City and County of Denver, Plaintiff in Error, v. Angelo STATHOPULOS, Defendant in Error.
• Court: Colorado Supreme Court

Page 606

309 P.2d 606

135 Colo. 146

Edward O. GEER, as Manager of Safety and Excise of the City and County of Denver, Plaintiff in Error, v. Angelo STATHOPULOS, Defendant in Error.

No. 18131.

Supreme Court of Colorado, En Banc.

April 1, 1957.

Rehearing Denied April 29, 1957.

John C. Banks, City Atty., Ty R. Williams, Asst. City Atty., Denver, for plaintiff in error.

Walter F. Scherer, Denver, for defendant in error.

FRANTZ, Justice.

Stathopulos applied for a hotel and restaurant liquor license pursuant to the Liquor Code of 1935, C.R.S. '53, 75-2-1 et seq. The application was, after hearing, denied by the Manager of Safety and Excise, the licensing authority of the City and County of Denver. These parties will be respectively referred to in this opinion as the applicant and the Manager.

In denying the application, the Manager held:

'1. In my opinion, you failed to establish a prima facie case as to the statutory need for an additional liquor outlet to serve the reasonable requirements of this neighborhood.

'2. In arriving at this decision, due consideration was given to the 303 written signatures in favor of the issuance of this license. However, in my judgment, more weight is given to the oral testimony produced by persons appearing as witnesses than to mute signatures on petitions. None of the persons appearing as witnesses could testify the there was a need for this additional outlet. The evidence taken in its most favorable light established nothing more than it would be desirable for periodic events at the Colosseum.

'3. There are four Hotel and Restaurant Liquor Outlets in this neighborhoodwhich adequately serve the reasonable requirements of the residents thereof.' (Emphasis supplied.)

After the denial of this application, the applicant sought relief under Rule 106(a)(4), R.C.P.Colo. (a proceeding in the nature of certiorari) against the Manager's decision, and obtained an order from the District Court of the City and County of Denver requiring the Manager to show cause why such license should not be granted. In compliance with the order to show cause, the Manager certified the record and transcript of the proceedings before him, and sought thereby to be justified in his denial of the application for such license.

On the day appointed for trial of the cause the same was assigned to the Hon. Edward J. Keating, and the Manager thereupon filed his motion to disqualify, charging said Judge with being not qualified to sit as the trial judge in the matter for the reason that he was prejudiced in favor of the applicant and against the Manager in the case under consideration and in all similar cases. This motion to disqualify was supported by an affidavit which stated that said Judge had 'expressed personal opinions, both in chambers and in open court, to the effect that the handling and administration of liquor licenses in and for the City and County of Denver has been, and is a rotten, stinking mess and that in his opinion, the entire matter should be investigated by a grand jury.' The affidavit also stated that the Judge told the attorney for the Manager in open court 'that he, said Judge, intends to reverse the decisions of the Manager in every case where he has the opportunity, and that he will keep this counsel busy appealing his decisions to the Supreme Court until a grand jury or someone else does something to straighten this matter out.'

This motion to disqualify was denied, the court in part saying, 'For the purposes of the record this court wishes to let it be known that those portions of the affidavit as submitted by able counsel for the City Attorney's Office as to statements made by this court, were made upon the evidence submitted in cases heretofore tried by this court. This court does not feel that he is prejudiced in this matter in any way, manner, shape or form; that he knows none of the parties involved herein, and that this motion is denied.'

Apparently the Manager was satisfied at the hearing before him that all the requirements of the law relating to qualifications of applicants, and conditions, for the license were met, excepting the proof of the reasonable needs of the neighborhood. What was the evidence bearing on this matter of the reasoanble requirements of the neighborhood?

From the testimony and the exhibits it appears that a number of persons in the area were consulted regarding their views on the question of the issuance of the license. Among the persons thus contacted by the applicant, none registered any objection. Many of them, 303 in number, representing 87.3% of those approached, signed the applicant's petition in support of the issuance of the license. Of the 44 who refused to sign for various reasons (such as being employed by the City), only 15 said they objected to the issuance of a license, and this on the sole ground that they were opposed to 'liquor in any shape or form.'

The area involved is primarily industrial in character but it contains the homes of approximately 500 people who live within its confines. In this area are the Coliseum and the Denver Stock Yards. The business of the applicant is located on the Northeast side of East 46th Avenue, directly across from the Coliseum. East 46th Avenue is a very busy thoroughfare in Denver; each day some twenty thousand cars pass the applicant's location.

There was testimony that this additional outlet was needed in order to serve patrons attending entertainment at the Coliseum and working in the area; that the applicant intended to operate a first-class restaurant capable of accommodating about 160 persons at one time, and providng for parking facilities for 50 cars; that a restaurant such as he intended to operate, was necessary to take care of the wants of the public traversing East 46th Avenue.

Because daily between 15 and 20 persons came and left the restaurant due to inability to obtain liquor with their meals, the present owner of the business (who has given an option to the applicant to buy the establishment) believes there is a need for the license sought by the applicant. The business is presently licensed to sell 3.2 beer.

Introduced in evidence was a map, to which was attached a statement of outlets in the area, obtained from the Manager's records. These records revealed that there were four places licensed in the neighborhood to serve malt, vinous and spirituous liquors under hotel and restaurant licenses.

There were no remonstrances signed by residents of the neighborhood protesting the issuance of a license. No person appeared at the hearing in the Manager's office to oppose the application, excepting a clergyman who did not live in the area, and as to his testimony, the Manager held that his statement that the churches of Colorado were against the issuance of the license 'had no evidentiary weight at all.'

Based upon the record before it the trial court held that the denial of the application 'was and is clearly without 'good cause", and directed the Manager to issue the license requested by the applicant. The Manager seeks reversal of this judgment.

It has been urged in the Manager's brief that the trial judge should have disqualified himself on the showing made by the motion and affidavit, and that his failure to do so requires reversal.

Every litigant is entitled to a fair and impartial trial. A fair and impartial trial, the very desideratum of the administration of justice, is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry, and renders judgment only after trial. The antithesis of a fair and impartial trial is prejudgment by a court. A tendency to prejudge, or a prejudgment of a particular controversy, or of a class or character of cases only sucks the administration of justice down into the eddy of disrepute.

Had this been a trial de novo before Judge Keating, it would have been our duty to review his ruling on the 'motion to disqualify.' While we do not condone prejudgment of any controversy, including a case of the character now before us, we deem it unnecessary to determine whether this case should be reversed on the ground of error for failure of the trial judge to disqualify himself.

The review of the Manager's action, denying the application for a liquor license, came before the trial judge on a printed record--the identical record before this court. Hence, there is no difference, as to what is being reviewed, between the trial court and this court. 'In other words, this court 'will examine the record as though the matter had never been heard or examined by the trial court, and will exercise its discretion in the matter the same as a trial court is authorized to do in such matters.'' Boise Flying Service v. General Motors Acceptance Corp., 55 Idaho 5, 36 P.2d 813, 814. Thus, the question initially forming the subject of this controversy will be fairly and impartially reviewed here, and there is no need for this court to go into the question of the disqualification of the trial judge.

We are not concerned with the rule ordinarily applicable to writs of error before this court--that we must approach the facts of a case by constantly keeping in mind the exclusive vantage point of the trial judge in that he was able in the trial to use his eyes, ears and intelligence to discern wherein was truth, and wherein credit and weight should be given to the testimony of witnesses. Such is not required in this case. The rule is well stated in Miller v. Taylor, 6 Colo. 41, as follows: 'The testimony in this case was taken before a referee, and the rule that a decree or judgment will not be disturbed unless manifestly against the weight of evidence does not obtain.

'The opportunity which the jury, or the nisi prius court, when the trial is to the court, has to judge of the credibility of witnesses by their appearance on the stand and their general manner of testifying, supplies the reason for the rule.

'Where the...