McCarten v. Sanderson
| Decision Date | 05 February 1941 |
| Docket Number | 8183. |
| Citation | 109 P.2d 1108,111 Mont. 407 |
| Parties | McCARTEN v. SANDERSON et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Seventh District, Richland County; Frank P. Leiper, Judge.
Proceeding in mandamus by Sherman McCarten against James J. Sanderson Henry A. Miller, and Allie McChesney, as the Board of County Commissioners of Richland County, Mont., a body politic and corporate, to compel respondent to approve in writing the application of relator to the Montana Liquor Control Board for a retail liquor license. From a judgment for respondents the relator appeals.
Judgment affirmed.
C. T Sanders, of Sidney, for appellant.
John M. Lexcen, of Sidney, for respondents.
Plaintiff appeals from a judgment rendered against him after an order sustaining defendants' motion to quash the alternative writ of mandate. The sole question involves the authority and duty of defendants as the Board of County Commissioners of Richland county under Chapter 84 of the 1937 Session Laws, as amended by Chapter 221 of the 1939 Session Laws.
The petition specifically negatives the various disqualifications provided by the act, and alleges that the defendants approved two applications for 1940 for premises at Lambert and Savage, two unincorporated towns, and that plaintiff requested their written approval of his application for 1941 for premises about three miles from Sidney, but that they "without any hearing upon the truth or falsity of the statements made and sworn to by your petitioner in said application, and without any investigation into the truth or falsity of the statements made and sworn to in said application, and unmindful of its duty to your petitioner and of the requirements of the law, wholly refused, without cause, to give your petitioner written approval of said application for license," etc. The prayer is for a writ of mandate "compelling the defendant Board of County Commissioners of Richland County, Montana, to approve in writing the application of your petitioner to the Montana Liquor Control Board for a retail liquor license in his name for the premises owned and operated by him," etc.
Without waiver of their motion to quash the alternative writ the defendants answered; plaintiff replied, and pursuant to a stipulation of the parties, a hearing was had on all questions of law and fact raised by both motion and answer.
The court's order is "that the motion must be and it is granted, the petition denied, and the proceedings dismissed;" but it discusses also the issues of law and fact raised by the answer, and in effect constitutes findings of fact, conclusions of law and a written opinion.
Introductory to the conclusions and written opinion in the order appears this succinct fact statement:
Those facts do not appear in the petition, which was the only pleading before the trial court on the motion to quash, and they have no proper place in the order granting the motion; but as no objection is made to them by plaintiff we will consider them as eliminating any question of a purely arbitrary refusal, without reason, to consider or approve plaintiff's application. The parties have not objected to them, and have stipulated that "the statement of facts set forth in the order sustaining the motion to quash" may be considered as part of the record of facts in the case. There would be no point in refusing to consider them as bearing upon the correctness of the trial court's action; for if a refusal to consider them as part of the record for that purpose should force us to conclude that the court was wrong in its ruling on the motion, they would then necessarily be considered upon the issues raised by all the pleadings, and the result reached by the trial court would in any event have to be affirmed.
For that reason we may consider, for all practical purposes, that the petition has been amended by the stipulated evidence to show that the defendants' refusal to approve plaintiff's application is not arbitrary or without reason but is based upon their belief that a majority of the inhabitants of Sidney and vicinity are opposed to the issuance of such licenses. Abuse of discretion as such is not urged by plaintiff, but rather an excess or abuse of authority, on the theory that the defendants' sole authority was to pass upon the truth of the allegations in plaintiff's application.
The question therefore becomes simply one of interpretation of the statute with regard to defendants' powers; namely, whether they must approve the application of each applicant if he or his premises are not disqualified by the statute, or whether they are given discretionary powers to refuse their approval of applications for other reasons which, without abuse of discretion, they consider valid.
In 1937 the legislature enacted Chapter 84, providing for the retail sales of intoxicating liquors and wines under licenses to be granted by the Montana Liquor Control Board, and the act was approved by the voters at the 1938 general election under their referendum powers. No provision for approval or control by local authorities was included in the act. Section 28 merely made permissible a local license to those licensed by the state board, with local license fees, and in effect constituted the county, city and town authorities as local license boards for that purpose, without the power to make state licenses ineffective by refusing local ones.
By Chapter 221 of the 1939 Session Laws the legislature added a provision requiring "written approval of the application for license" to be obtained from the board of county commissioners, as a prerequisite to the issuance by the state board of licenses for premises lying outside of incorporated cities and towns, and from the city or town authorities for premises lying within incorporated cities or towns.
Section 5 of Chapter 84 of the 1937 Session Laws, by virtue of said 1939 legislative amendment, reads as follows, the new portions being in italics:
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... ... Knese v. Kinsey, 314 Mo. 80, 282 S.W ... 437; State ex rel. McIntire v. City Council of the City ... of Libby, 82 P.2d 587; McCarten v. Sanderson, ... 109 P.2d 1108; State ex rel. Wiley v. District ... Court, 164 P.2d 358; Spisak v. Village of ... Solon, 39 N.E.2d 531; ... ...
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Oahe Conservancy Subdistrict v. Janklow
...meaning, which is the opposite of "disapproval" and necessarily involves the exercise of discretionary power. McCarten v. Sanderson, 111 Mont. 407, 109 P.2d 1108 (1941). It implies a final, direct, affirmative sanction. Leroy v. Worcester St. Ry. Co., 287 Mass. 1, 191 N.E. 39 (1934). See al......
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People v. Riggs
...knowledge and the exercise of discretion after knowledge. Black's Law Dictionary 102 (6th ed.1990) (citing McCarten v. Sanderson, 111 Mont. 407, 109 P.2d 1108, 1112 (1941)). It is generally held that requiring the approval of a distinct officer to validate the act of another, evidences a le......
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...the statute the issuance of liquor and beer licenses by the liquor control board are ministerial acts not involving discretion. McCarten v. Sanderson, supra. 'V. That regulation number 49 as amended, adopted by the defendant board, in so far as it affects this action, is an attempt to creat......