Mesch v. Board of County Com'rs of Routt County, 17765

• Decision Date: 06 February 1956
• Docket Number: No. 17765,17765
• Parties: Marvin C. MESCH, doing business as Meadow Lake Resort, Plaintiff in Error, v. BOARD OF COUNTY COMMISSIONERS OF ROUTT COUNTY, Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 300

293 P.2d 300

133 Colo. 223

Marvin C. MESCH, doing business as Meadow Lake Resort, Plaintiff in Error, v. BOARD OF COUNTY COMMISSIONERS OF ROUTT COUNTY, Colorado,

Defendant in Error.

No. 17765.

Supreme Court of Colorado, En Banc.

Feb. 6, 1956.

Ben T. Delahay, Steamboat Springs, for plaintiff in error.

C. R. Monson, Robert H. Gleason, Steamboat Springs, for defendant in error.

ALTER, Chief Justice.

Marvin C. Mesch as applicant, on April 2, 1955, filed a motion in the district court, naming the Board of County Commissioners of Routt County, Colorado, as licensing authority, in which was sought an order by the district court directing the County Clerk and Recorder of Routt County, Colorado, to certify to the court copies of all the records of the Board of County Commissioners of Routt County, Colorado, pertaining to an application for a restaurant license for the sale of beer, wine and spiritous liquors, alleging in his motion that said licensing authority in refusing his license abused its descretion and acted arbitrarily and capriciously. No summons, citation or other process of the court was ever issued or served upon the licensing authority. Thereafter and on June 7, 1955, three affiants claiming to be the County Commissioners of Routt County, Colorado, filed an affidavit setting forth therein six reasons for denying Mesch's application, none of the reasons being statutory. Thereafter and on June 11, 1955, applicant filed his affidavit, explaining in part one of the six reasons assigned in the affidavit of the three Commissioners. Thereafter the record discloses a Memorandum of Authorities was filed by applicant's attorney; this was followed by a Memorandum of Authorities in behalf of the licensing authority filed by attorneys for the Board of County Commissioners. On August 22, 1955, the court entered a 'Memorandum of Decision and Judgment,' which reads in part, 'and it is the judgment and ruling of the Court that the motion filed by the applicant be and is hereby denied and the proceeding dismissed, and the order and action of the Board of County Commissioners in denying the license sustained and confirmed.' Motion for new trial was deemed unnecessary.

Mesch and the Board of County Commissioners of Routt County, Colorado, were designated in the motion as applicant and licensing authority, respectively, and herein the parties are so designated.

Applicant has sued out this writ of error seeking a reversal of the court's 'Memorandum of Decision and Judgment.'

The record here discloses a proceeding that is unique; it is sui generis and without precedent either in the district or supreme court in this state. The court in its...