Madsen v. Town of Oakland

• Decision Date: 11 December 1934
• Docket Number: 42410
• Citation: 257 N.W. 549,219 Iowa 216
• Parties: N. C. MADSEN, Appellee, v. TOWN OF OAKLAND et al., Appellants
• Court: Iowa Supreme Court

257 N.W. 549

219 Iowa 216

N. C. MADSEN, Appellee, v. TOWN OF OAKLAND et al., Appellants

No. 42410

Supreme Court of Iowa, Des Moines

December 11, 1934

REHEARING DENIED APRIL 5, 1935.

Appeal from Pottawattamie District Court.--ERNEST M. MILLER, Judge.

Original action by mandamus to compel the town council of the incorporated town of Oakland to issue a class "B" permit to plaintiff to sell beer. The council rejected the application, and the district court directed the issuance of the writ prayed for. The defendants appeal.

Reversed.

Charles Roe and L. M. Hall, for appellants.

John J Hess, for appellee.

STEVENS J. MITCHELL, C. J., and KINTZINGER, DONEGAN, ALBERT, and ANDERSON, JJ., concur.

OPINION

STEVENS, J.

This original action is prosecuted upon the theory that the appellant town council of the incorporated town of Oakland, in denying the application of appellee for a permit to sell beer, abused its lawful discretion. This is the only question presented for decision.

The authority to grant applications for the issuance of class "B" permits to sell beer is granted to cities and towns and cities acting under special charter. Section 11, chapter 37, Laws of the 45th General Assembly. Class "B" permits shall be issued to any person who

"1. Submits a written application for a permit, which application shall state under oath:

"a. The name and place of residence of the applicant, and the length of time he has lived at such place of residence.

"b. That he is a citizen of the state of Iowa.

"c. The place of birth of the applicant, and if the applicant is a naturalized citizen, the time and place of such naturalization.

"d. The location of the place or building where the applicant intends to operate.

"e. The name of the owner of the building and if such owner is not the applicant that such applicant is the actual lessee of the premises."

And also:

"2. Establishes:

"a. That he is a person of good moral character.

"b. That the place or building where he intends to operate conforms to all laws, health and fire regulations applicable thereto, and is a safe and proper place or building.

"3. Furnishes a bond in the form prescribed and to be furnished by the treasurer of state or the state of Iowa, with good and sufficient sureties to be approved by the council of the city or town to which application is submitted, conditioned upon the faithful observance of this act, in the sum of two thousand dollars ($ 2,000.00)."

The application of appellee to the appellant town council in form complied with the foregoing specific requirements. The application was accompanied by a certificate of good moral character and repute signed by three resident citizens. In addition to the foregoing, it is provided by section 8 of the aforementioned act that "permits hereunder defined shall be issued only to persons who are citizens of the state of Iowa, who are of good moral character and repute. * * *"

It is further enacted by section 27 of said act that

"The authorities empowered by this act to issue permits shall make a thorough investigation to determine the fitness of the applicant and the truth of the statements made in and accompanying the application. * * *"

No proof, other than the application and the certificates accompanying the same, was offered before the appellee town council. The application was rejected by the council upon the ground that appellee was deemed not to be a person of good moral character and repute within the scope, meaning, and purpose of the act. That in passing upon such application, the council exercises a legal discretion is conceded by appellee. It is, as stated, however, contended in his behalf that in the present instance there was such an abuse of the discretion confided in the town council as to require an order by the district court for the issuance of a writ of mandamus to compel the said council to grant the permit sought.

It will be observed that the applicant for a class "B" permit to sell beer must, in addition to the filing of a formal permit, establish that he is a person of good moral character. The burden of establishing such good moral character rests upon the applicant. This is recognized by appellee who contends that the certificate of good moral character accompanying the application was sufficient and fully met the statutory requirement. At least that it made a prima facie case.

In addition to the burden imposed by the act upon an applicant for a class "B" permit, a corresponding duty is imposed upon the body authorized to grant the same. The duty thus imposed to make a thorough investigation to determine the fitness of the applicant to be the holder of a permit is imperative. This duty was apparently performed by the appellant town council. The record, however, does not in any way disclose the precise facts ascertained and determined as the result of the investigation undertaken. This, if material, must be implied from the conclusion reached as to the fitness of appellee to hold a permit.

The evidence upon the trial of this case in the district court is in conflict and tended on the one side to show that the moral character of appellee as to honesty, integrity, and general moral character was good. One of the witnesses so testifying admitted on cross-examination that he had heard that appellee's place of business in which he conducted a hamburger stand had been raided for supposed liquor violations, and that boys were taken out of, or came to, appellee's place in an intoxicated condition. Another character witness for appellee gave similar testimony and that he had seen intoxicated persons about appellee's place of business. Others of said witnesses limited their testimony to the general reputation of appellee for honesty and integrity in his business dealings. On the other hand, there was testimony tending to show that minors loitered about appellee's place of business while intoxicated; that intoxicated persons were seen leaving the place; that the patrons thereof were, to some extent, booze-fighters; that intoxicated persons had been seen leaving the place late at night; that pop was spiked in the hamburger place in the presence, and with the knowledge, of appellee; that he told Bertha Jensen, an employee who testified that liquor was kept in the place, to empty the contents in the sink if the law came in; that a fifteen-year-old boy became so intoxicated therein that he "passed out"; that she saw appellee intoxicated; and other testimony of like character.

All of the foregoing testimony was denied by appellee. Asked on cross-examination if he ever became intoxicated, appellee answered, "Not when I was in the place of business". Various members of the town council called as witnesses by defendants stated, in substance, that the general reputation of appellee for good moral character was good.

Much emphasis is placed by appellee upon the testimony of the members of the town council. It is urged in this connection that this testimony is in itself sufficient to establish such an abuse of discretion on the part of the town council as to entitle appellee to the writ sought. The duty imposed by the act upon town councils to make a thorough investigation of the fitness of an applicant for a permit to sell beer is not a perfunctory one, nor is it to be performed in the light of, or with reference to, the personal knowledge or opinions of the members of the council. Except as it may tend, if it does at all, to throw light upon the fitness of appellee, this testimony amounts to no more than the testimony of any other witness. The town council, acting within the authority conferred thereon to issue permits, could not, if informed thereof, ignore the facts in the possession of the town's night watchman who gave testimony upon the trial of this case as follows:

"I live in Oakland. I am the nightwatch there. I arrested the two boys some time in April of this year who were drunk in Madsen's place. I had seen the boys in Madsen's place off and on during the entire evening. They were getting more intoxicated all the time. I saw Madsen there in the shop a part of the time. I saw the boys on the back of the lot on which Madsen's place is located. They were not as intoxicated then as they were later. I did not spend all my time watching the boys that evening. When I arrested the two boys one of them was lying on the walk. I did not see Madsen then. The general reputation of Madsen's place is bad. I was present when the slot machine was taken from Madsen's barbecue. It was a quarter machine. You played quarters into it and sometimes it played out quarters. After it was taken I turned it over to the sheriff."

There is, perhaps, no perfectly accurate or comprehensive definition of moral character. The...