Leigton v. Maury

• Decision Date: 28 July 1882
• Citation: 76 Va. 865
• Parties: LEIGTON v. MAURY.
• Court: Virginia Supreme Court

76 Va. 865

LEIGTON v. MAURY.

Supreme Court of Appeals of Virginia.

July 28, 1882

Error to judgment of the judge of the circuit court of Botetourt county rendered in vacation on an appeal by John R. Leighton from the decision of the county court of said county refusing his application for license to sell liquor by retail at " Old Forge," in that county. The facts are fully stated in the opinion of the court.

G W. & L. C. Hansbrough and Attorney-General F. S Blair, for the appellant.

Glasgow & Glasgow, for the appellee W. F. Maury.

OPINION

STAPLES J.

The appellant applied to the county court of Botetourt for a license to keep a bar-room and to sell liquor by retail at a place known as the " Old Forge," in that county. This application was opposed by William F. Maury, who, upon his own motion, was admitted as complainant. The court, after hearing the testimony on both sides, refused the license, not being fully satisfied " that the applicant is a fit person and that the place is suitable and convenient." The appellant, thereupon, during the term entered an appeal to the circuit court. No bill of exceptions was, however, taken to the ruling of the court, nor do the records contain a certificate of the facts proved or of the evidence adduced in the county court. Subsequently the appeal came on to be heard before the judge of the circuit court in vacation; who having heard the evidence for and against the application, also refused the license, " not being fully satisfied that the place is suitable and convenient for a bar-room and to sell by retail." To this refusal the appellant excepted, and upon his motion the learned judge certified the evidence; and, thereupon, the appellant obtained an appeal from one of the judges of this court.

The case, as thus presented, brings before this court for the first time the proper interpretation of the statute upon the subject of licenses for the retail of ardent spirits, found in Acts of 1879-80, p. 148. It is there provided that if the court to which application is made for a license be fully satisfied, upon hearing the testimony for and against the application, that the appellant is a fit person and that the place of business is suitable and convenient, it shall, upon the execution of a bond by the appellant with good security, etc., grant the license. If the county court or corporation court shall refuse to grant the application, the tax shall be refunded, and the party aggrieved may, during the term at which such refusal is entered, appeal to the circuit court of said county or corporation in term time, or vacation, and the judge thereof shall take cognizance of the appeal and may grant the license upon the terms required by this act.

It will be observed that when the applicant brings himself within the provisions of the statute--in other words, if he shows that he is an fit person, and that the place of business is suitable and convenient--it is the duty of the county court to grant the license. " It shall grant the license " is the mandate of the act. The court is of course invested with a sound judicial discretion in determining whether the applicant is a fit person and the place suitable and convenient, but if fully satisfied upon that point, it has no right to refuse the license, because the judge may consider the sale of ardent spirits contrary to a sound public policy, or injurious to the morals of a community. These are considerations that may properly address themselves to the legislature in framing the laws, and not to the courts in expounding them. The present statute, it is apparent, is a clear departure from former laws on the subject, as construed by this court in Yeager's case, 11 Gratt. p. 655. For, in that case it was held that the county courts of Virginia were clothed with an unlimited discretion in granting or refusing license for the retail of ardent spirits, and their decisions in such cases were not the subject of review by any appellate tribunal. The framers of the present statute were, no doubt, familiar with the decision in Yeager's case and intended to change the rule established by that decision. In thus changing its policy, the legislature very probably considered it safer and more conducive to the public welfare to entrust the sale of ardent spirits to fit persons at suitable places--with the additional advantages derived for a tax upon the business, rather than endure the evils of a clandestine and illicit traffic by irresponsible persons who contributed nothing to the public revenue. But whatever may have been the motives of the legislature, with which we have nothing to do, the statute is mandatory in its terms and the right to appeal to the circuit court absolute and unconditional. It is very true the statute does not say that the appeal is of right. It however uses language equally emphatic. It declares that the applicant may during the term appeal to the circuit court, and the judge of that court shall take cognizance of the appeal. The appeal is therefore but a transfer of the case to another tribunal where it is heard de novo, not upon errors assigned, but upon the testimony of witnesses, as in cases of roads, mills, profit of wills, and the like. The judge of the circuit court does not undertake to reverse or affirm the judgment of the county court, but it grants or refuses the license in the exercise of the jurisdiction conferred upon it by the statute.

The next question is, whether in the event of a refusal by the circuit court or judge to grant the license, an appeal or writ of error and supersedeas lies to or from this court, as in other cases. It has been argued here that the judgment of the circuit court is final and conclusive, for the reason that whilst the statute declares that the county court shall grant the license, if the applicant brings himself within the requirements, it at the same time declares that the circuit court may grant the license, and the conclusion is sought to be deduced that the legislature designed to invest the circuit courts with the same discretionary authority which was conferred upon the county courts under former laws. An examination of the opinion of the court in Yeager's case will show that the decision was not based upon the words " may grant such license," used in the act of 1849.

Counsel in that case had urged on one side that " may" meant " shall," and on the other hand it was urged that the word was used in its popular sense and was employed to grant an authority coupled with a discretion which was not the subject of reversal by any other tribunal. Judge Daniel undertook to solve the difficulty by referring to the uniform legislation on the subject from the earliest history of the State down to the revisal of 1849. This legislation, as he insisted, unmistakably shows that the whole subject of granting or refusing license was left to the discretion and judgment of the county court, and that there was nothing in the statute of 1849 to indicate a change of legislative policy; on the contrary, the use of the word " may grant such license," clearly showed that no such change was contemplated.

Indeed the word " may" is sometimes construed as mandatory, and sometimes as permissive, as will best carry into effect the true intent and object of the legislature. Generally, it is construed as mandatory when the legislature means to impose a positive duty, or when the public is interested, or where third persons have a claim that the act shall be done. In England, it has been held that where a statute confers an authority to do a judicial act in a particular case, it is imperative on those so authorized to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. In such cases the word " may" is not...