Lorenzino v. State Ex Rel. James.
| Decision Date | 14 October 1913 |
| Citation | 135 P. 1172,18 N.M. 240 |
| Parties | LORENZINOv.STATE EX REL. JAMES. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Under section 4, c. 115, S. L. 1905, where liquor is being sold “outside of the locality for which such license was granted,” it is the duty of the board of county commissioners to cancel the license; and such board has no discretion in the matter, where the facts exist which authorize the cancellation.
The word “may,” as used in the statute, is employed in the sense of “shall.”
The board of county commissioners, in determining the fact as to whether liquor is being sold outside of the locality for which the license was granted, acts only in a ministerial capacity; and, where the facts upon which it acts are not disputed, mandamus is the proper remedy to compel the cancellation of a liquor license, where liquor is being sold thereunder outside of the locality for which such license was granted.
Section 4129, Comp. Laws 1897, construed, and held not to authorize the cancellation of a liquor license.
Appeal from District Court, McKinley County; Herbert F. Raynolds, Judge.
Application by the State, on the relation of John James, for writ of mandamus against O. Lorenzino. From an order granting the writ, defendant appeals. Affirmed.
The word “may,” as used in the statute, is employed in the sense of “shall.”
A. T. Hannett, of Gallup, for appellant.
M. E. Hickey, of Albuquerque, for appellee.
The principal question involved in this appeal is whether mandamus is an available remedy to compel the revocation by the board of county commissioners of a liquor license, where liquor is being sold thereunder “outside of the locality for which such license was granted.” The lower court granted the writ, upon an agreed statement of facts. By the statement it was stipulated that the facts stated in the petition filed with the board of commissioners were to be taken as true by the district court. In the petition it was averred that the building where liquor was being sold under the license sought to be canceled was not “within the limits of said village” of Diamond Camp, where the licensee was authorized to sell intoxicating liquor. The holder of the license prosecutes this appeal, and for a reversal of the cause presents three propositions, which may be stated as follows: (1) In determining whether the license should be canceled, the board of county commissioners act judicially, and therefore mandamus will not lie; (2) relator had an adequate remedy under section 4129, C. L. 1897, and could not, therefore, maintain this action; and (3) that the building where liquor was being sold under the license was not without the limits of the village. In view of the stipulation, however, appellant is concluded as to the third proposition.
[1] The first question is based upon the construction of section 4, c. 115, S. L. 1905, which reads as follows: “Any retail liquor license granted as provided for by law may be revoked by the board of county commissioners of the county wherein the same was or is issued, for the purpose of conducting a saloon outside of any incorporated village, town or city, * * * when any saloon is conducted therein, and the license money paid shall be forfeited, for the following reasons, to wit: Provided, that the authorities mentioned herein upon a hearing given any person so licensed, shall be satisfied that such person has violated any of the provisions specified in said license, or by selling or attempting to sell retail liquors aforesaid outside of the locality for which such license was granted or if such person is conducting a disorderly or ill-governed saloon house or place, or a place of resort for idle or dissolute persons, or conducting any gambling therein without having a license therefor, or by permitting women to frequent such saloon.”
[2] Appellant argues, first, that the Legislature, by the use of the word “may,” in conferring upon the board the power to revoke the license, intended to invest the board with the discretion to revoke the license at its pleasure, even though the license was being used in violation of the terms of the act. Such construction, however, is erroneous,...
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...to leave the decisions of this court to decide the first question posed by the respondent. City of Socorro v. Cook, supra; Lorenzino v. James, 18 N.M. 240, 135 P. 1172; State ex rel. Perea v. Board of County Comm., 25 N.M. 338, 182 P. 865; State v. Kelly, 27 N.M. 412, 202 P. 524, 21 A.L.R. ......
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...Attorney General are ministerial and subject to control by mandamus. The situation is somewhat akin to that disclosed in Lorenzino v. State, 18 N.M. 240, 135 P. 1172, where mandamus was held to be an appropriate remedy. The board of county commissioners necessarily had to determine existenc......
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