Murphy v. Withers

• Decision Date: 15 July 1948
• Docket Number: No. 16232.,16232.
• Citation: 48 S.E.2d 721
• Court: Georgia Supreme Court
• Parties: MURPHY. v. WITHERS et al.

48 S.E.2d 721

MURPHY.

v.WITHERS et al.

No. 16232.

Supreme Court of Georgia.

July 15, 1948.

Syllabus by the Court.

Had the petition for mandamus in the instant case sought to compel the mayor and council to fix terms and conditions under which wine licenses might be issued, as in the case of Thomas v. Ragsdale, 188 Ga. 238, 3 S.E.2d 567, or had the petition sought to compel such governing authority to entertain and pass upon, one way or another, the plaintiff's application for a wine license, as in the case of Harmon v. James, 200 Ga. 742, 38 S.E.2d 401, an entirely different question would have been presented. However, since the petition seeks mandamus not to entertain the plaintiff's application but to compel the mayor and council to issue to him a wine license upon the petitioner's individual application; and since no one has an inherent right to engage in such a business which can be made the proper subject for enforcement by the writ of mandamus; this court will not, therefore, inquire into the exercise of discretion lawfully reposed in the defendant mayor and council to determine whether or not such discretion has been grossly abused, or arbitrarily or capriciously exercised.

Error from Superior Court, Colquitt County; Geo. W. Lilly, Judge.

Petition for mandamus by K. T. Murphy against W. B. Withers and others to compel the issuance of a wine license. The petition was dismissed, and plaintiff brings error.

Affirmed.

Statement of facts by JENKINS, Chief Justice:

K. T. Murphy brought a petition for mandamus against the named mayor and council of the City of Moultrie, setting out that he "appeared before the mayor and council at a regular session on the second day of March, 1948, and demanded a city license to sell wine. Said plaintiff appeared at the next regular meeting of said mayor and council on the 16th day of March, 1948, and renewed his demand for a license to sell wine in said city. The council voted three to two not to issue the plaintiff said license nor to allow any wine to be sold in the City of Moultrie." He further sets out that he had, prior to March 2, 1948, rented a storehouse and lot in Moultrie for the selling of legal wine in said city, and that the refusal on the part of the defendant to grant him his legal rights to a license will cause him to pay $600 in rent and an unknown sum in profits he could make fromsaid wine business. The plaintiff sets out that no election has been called in Colquitt County since the passage of the wine act in 1935, Code of Georgia, § 58-801 et seq. He sets out that although Colquitt County has for several years issued licenses for the sale of wine, the City of Moultrie has passed no regulation for the sale of wine within its limits nor has it fixed any tax therefor. He prays: For a rule nisi; that on the hearing the mandamus be made absolute and that, "the defendants be required to issue to plaintiff said wine license as he has asked for, " for the reason that "the failure of the defendants to issue such license is wilful and contrary to law in that they have no discretion in the matter." The defendants filed a general demurrer to the petition which the judge of the lower court sustained. The case is here on direct bill of exceptions assigning error on that order.

P. Q. Bryan, of Moultrie, for plaintiff in error.

Win. H. Riddlespurger, of Moultrie, for defendants in error.

Hoyt H. Whelchel, of Moultrie, for parties at interest not parties to record.

JENKINS, Chief Justice (after stating the foregoing facts).

Before taking up the controlling question in this case, it is well to point out that the prayers of the petition are not for mandamus to compel the city authorities to accept and pass upon an application for a wine license, as in Harmon v. James, 200 Ga. 742, 38 S.E.2d 401, or to fix terms and conditions upon which licenses might be issued as in Thomas v. Ragsdale, 188 Ga. 238, 3 S.E.2d 567, but rather, the contention in this case is that the failure of the defendants to issue the particular license sought by the particular applicant is wilful and contrary to law in that they had no discretion in the matter, and the prayers of the petition are that the writ issue, "requiring them to issue a wine license to plaintiff to conduct such business in the City of Moultrie, Ga." The question, therefore, is entirely different from that presented in the cases above cited where in a proper case mandamus might lie for the purposes there indicated. Accordingly, the sole question here involved is whether or not the plaintiff has such a right to engage in the business of retailing wine as can be enforced by the writ of mandamus.

In this connection, the rule has been repeatedly stated by this court that before mandamus will issue, "The law must not only authorize the act to be done, but must require its performance." Hart v. Head, 186 Ga. 823, 824, 199 S.E. 125, 126, and to entitle one to the writ of mandamus, it must appear that he has a clear legal right to...