Olds v. Kirkpatrick et al.
| Decision Date | 16 March 1948 |
| Citation | 191 P.2d 641,183 Or. 105 |
| Parties | OLDS <I>v.</I> KIRKPATRICK ET AL. |
| Court | Oregon Supreme Court |
1. Liquor Control Commission is vested with discretionary power to grant or refuse an application for license to sell beer at retail and unless its action in granting or refusing a license is an abuse of discretion the courts will not interfere. O.C.L.A. § 24-120(1).
Intoxicating liquors — Liquor Control Commission — Discretion — Abuse — Mandamus
2. A refusal by the Liquor Control Commission to issue a retail sale beer license without making due inquiry into the relevant facts and without stating its reasons for such refusal would be an abuse of discretion controllable by mandamus. O.C.L.A. §§ 11-302, 24-120(1).
Intoxicating liquors — Licensing board — Valid reason
3. Where a licensing board does assign a valid reason for refusing to grant a license, the courts, in absence of showing that action of the board was an abuse of its clear legal duty in the premises, will not assume that the reason assigned by the board was lacking in substance. O.C.L.A. § 11-302, 24-120(1).
Mandamus — Judicial discretion
4. While mandamus will lie to compel inferior tribunals, public officers, or administrative bodies to perform duties or functions imposed upon them by law, it will not undertake to control judicial discretion as to the manner in which such duties or functions should be performed. O.C.L.A. § 11-302.
Intoxicating liquors — Mandamus
5. Mandamus would not lie to compel Liquor Control Commission to issue a retail beer license where only indication of arbitrary conduct in refusal was the subsequent grant of a license to another person for premises within a thousand feet of petitioner's premises, since the status of such other premises may have been entirely different, and in absence of a showing to the contrary, court would assume that other license was properly issued. O.C.L.A. §§ 11-302, 24-120(1).
Intoxicating liquors — Second application — No change
6. Where applicant for retail beer license, after having been first refused, filed immediately thereafter a second application making no showing of any change in conditions which might have persuaded the Liquor Control Commission to change its views and to hold that the granting of a license was demanded by public interest or convenience, Commission properly denied the second application pro forma. O.C.L.A. § 24-120(1).
Mandamus — Alternative writ — Complaint
7. In Oregon, the alternative writ in a mandamus proceeding is regarded as being the complaint. O.C.L.A. § 11-302.
Mandamus — Alternative writ — Statement — Cause of action
8. In mandamus proceeding alternative writ must contain petitioner's statement of his cause of action, and such statement must be legally sufficient so that the mandatory portion of the writ follows as a conclusion of law from the facts alleged. O.C.L.A. § 11-302.
Mandamus — Petition — Clear right — Relief
9. Petitioner seeking a writ of mandamus must show that he has a clear right to the relief sought. O.C.L.A. § 11-302.
Intoxicating liquors — Mandamus — Clear right — Public interest
10. Where alternative writ of mandamus failed to allege facts showing that petitioner had a clear right to have a retail beer license issued to him, but on the contrary disclosed that the Liquor Control Commission found that the issuance of the license was not demanded by public interest or convenience, mandamus was properly denied, since no duty rested upon the Commission to issue a license. O.C.L.A. §§ 11-302, 24-120(1).
Intoxicating liquors — Discretion — Liquor Control Commission — Scope
11. In the exercise of its discretion in passing upon an original application for a liquor license, the Liquor Control Commission is not limited in the scope of its inquiry, and may rely upon reports of its own investigators as to character of applicant and suitability of premises. O.C.L.A. § 24-120(1).
Intoxicating liquors — Liquor Control Commission — Public interest — Administrative
12. In granting or refusing liquor licenses, the Liquor Control Commission is concerned primarily in ascertaining and promoting the public interest, its inquiries and investigations being more in the nature of administrative police functions than inquiries into disputed private rights. O.C.L.A. § 24-120(1).
Intoxicating liquors — Liquor Control Commission — Applicant — Inspect — Reports
13. Liquor Control Commission might properly refuse to permit an applicant for license to inspect the reports of its investigators. O.C.L.A. § 24-120(1). Intoxicating liquors — Liquor Control Commission — Inspection arbitrary
14. Where alternative writ of mandamus did not allege that Liquor Control Commission refused permission for applicant for retail beer license to inspect its reports concerning him, or that such permission was requested, refusal of the Commission to permit such inspection could not be urged as arbitrary to justify issuance of a mandatory writ to compel licensing of applicant. O.C.L.A. §§ 11-302, 24-120(1).
Intoxicating liquors — Mandamus — Liquor Control Commission — General finding
15. In mandamus proceeding to compel Liquor Control Commission to issue a retail beer license to applicant on ground that its refusal was arbitrary, Commission's general finding, to the effect that issuance of a license was not demanded by public interest or convenience, was sufficient to inform applicant of the reason for the rejection of his application. O.C.L.A. § 11-302 24-120(1).
See note, 132 A.L.R. 1235
30 Am. Jur. 320
48 C.J.S., Intoxicating Liquors, § 160
Appeal from Circuit Court, Multnomah County.
Ben Anderson, of Portland, argued the cause for appellant. On the brief were Lord, Anderson & Franklin, of Portland.
John K. Crowe, Assistant Attorney General, of Portland, argued the cause for respondents. On the brief were George Neuner, Attorney General, of Salem, and Wilber Henderson, of Portland.
Before ROSSMAN, Chief Justice, and BELT, BAILEY, BRAND and HAY, Justices.
Proceeding in mandamus by Lester E. Olds to compel H.R. Kirkpatrick, H.P. Lilley and Dr. E.B. McDaniel, constituting the Oregon Liquor Control Commission, to issue a retail beer license for certain premises. From the judgment, petitioner appeals.
AFFIRMED.
Lester E. Olds petitioned in the circuit court for a writ of mandamus to compel the defendants, who comprise the Oregon Liquor Control Commission, to issue to him a retail beer license for premises described as No. 6416 N.E. Killingsworth Avenue in Multnomah County. An alternative writ issued, the allegations of which, briefly stated, are as follows: Petitioner is the owner of the premises. A building was constructed thereon in 1938 for tavern purposes, and until 1944 was operated by petitioner as a tavern and restaurant with a Class B retail beer license. In 1944, petitioner leased the building to another person. It is now vacant. Petitioner has attempted to lease it for tavern and restaurant purposes, but defendants have refused to issue a retail beer license therefor to any tenant. In October, 1946, petitioner made application to defendants for a beer license for said premises, which application had been approved by the Board of County Commissioners of Multnomah County. Defendants, on November 21, 1946, "without assessing [sic] any cause further than to say that the license is not demanded for public convenience or necessity", refused the application. On petitioner's request, defendants granted a rehearing upon his application, at which petitioner introduced evidence of his own good character and of his previous experience in the successful operation of licensed premises. No testimony was offered by or on behalf of defendants, "but certain * * * informers * * * who were in the employ of defendants were present * * * and passed up notes to defendants present to read; [which notes] * * * were not offered to be shown to petitioner or his attorney and petitioner and his attorney were not accorded the privilege of seeing or finding out what was written on said notes". On December 16, 1946, petitioner's application was again denied. Subsequently, defendants granted a license to another person for premises within a thousand feet of petitioner's premises, and petitioner thereupon made a further application for license, but defendants, "without a hearing or assigning a valid reason, or there being any reason therefor", denied such application. Defendants' refusal to grant such license was arbitrary, capricious and not in the exercise of any legal discretion.
Defendants demurred to the alternative writ, on the ground that it did not state facts sufficient to show a cause of action against them. The demurrer was sustained. Petitioner refused to plead further, and the court thereupon entered formal judgment denying his application for a peremptory writ. He appeals from such judgment.
Two errors are assigned: (1) that the court erred in sustaining the demurrer to the alternative writ; and (2) that the court erred in not remanding the proceedings to defendants to make findings of fact disclosing their grounds for refusal of petitioner's application for license.
1-4. The Oregon Liquor Control Commission has been vested by the legislature with discretionary power to grant or to refuse an application for a license to sell beer at...
To continue reading
Request your trial
-
Johnson v. Craddock
...to control judicial discretion as to the manner in which such duties or functions should be performed. ORS 34.110; Olds v. Kirkpatrick, 183 Or. 105, 110, 191 P.2d 641, and cases there cited. Even though the discretionary action was erroneous, mandamus will not lie to compel an amendment or ......
-
Gouge v. David et al.
...must be a deliberate act; that is, the application and other relevant papers must be perused and judgment must be exercised: Olds v. Kirkpatrick, (Or.), 191 P.2d 641. The payment of the license fee into the Commission's coffers does not cause a license to come forth in the manner of a coin-......
-
State ex rel. Venn v. Reid
...to test the sufficiency of the writ and for this purpose, every fact well pleaded therein is construed as admitted. See Olds v. Krkpatrick, 183 Or. 105, 111, 191 P.2d 641. The sole question presented by the allegations of the writ is the alleged duty of Judge Reid personally, as distinguish......
-
Makinson v. Board of Directors, School Dist. No. 4, Lane County
...193 Or. 688, 240 P.2d 958. The alternative writ is regarded as being the complaint and its sufficiency is tested as such. Olds v. Kirkpatrick, 183 Or. 105, 191 P.2d 641; State ex rel. Bethke v. Bain, supra. Needless to say, the writ is issued, not by the parties, but by the clerk on directi......