Page v. Blunt

• Decision Date: 29 September 1952
• Docket Number: No. 16724,16724
• Citation: 126 Colo. 324,248 P.2d 1074
• Parties: PAGE et al. v. BLUNT, Mayor, et al.
• Court: Colorado Supreme Court

Page 1074

248 P.2d 1074

126 Colo. 324

PAGE et al. v. BLUNT, Mayor, et al.

No. 16724.

Supreme Court of Colorado, en Banc.

Sept. 29, 1952.

Johnson & Robertson, Stanley H. Johnson, Denver, for plaintiffs in error.

F. T. Henry, Louis Johnson, Colorado Springs, for defendants in error Mayor and Members of City Council.

William A. Baker, Colorado Springs, for defendant in error V. F. W. 101 Club.

STONE, Justice.

This is an action in the nature of certiorari, whereby it appears, in separating the kernels of wheat from the bushels of chaff, that plaintiffs seek review and reversal of the action of the City Council of the City of Colorado Springs in granting a liquor license to Veterans of Foreign Wars, 101 Club, on the grounds:

1. That defendant Ackerman, one of the council members, was an officer of the bank which had loaned money to defendant club and had financial interest which disqualified him and avoided the action of the council;

2. That the council had prejudged the issue without notice to protestants by amending the city zoning resolution prohibiting the sale of liquor in residence zones so as to permit such sale by membership clubs; and

3. That the council, in granting the license, abused its discretion in that it did not consider the requirements of the neighborhood or the desires of the inhabitants as required by the applicable statute.

Defendants challenged plaintiffs' right to prosecute the action, first, because the statutes do not provide for review by third persons of the issuance of licenses; and, second, because the license expired and the issue became moot, prior to decision by this court.

The trial court, upon filing of the complaint, issued order to show cause; thereupon, the records of the city council proceedings were duly certified up and, thereafter, upon hearing and argument, the court refused to issue the writ.

Considering defendants' first contention, it is urged that plaintiffs cannot maintain their cause because they have failed to allege or show that they had no plain, speedy and adequate remedy at law, and, further, because the legislature, by failing to provide for a review by any person other than the applicant for a liquor license, indicated its intent that such application should be a matter between the local authority and the applicant only. Under our rules, it is not necessary to plead lack of adequate remedy at law. Our statute provides that in permitting change of location of place of business of a licensee, the 'licensing authorities shall consider the reasonable requirements of the neighborhood to which the applicant seeks to change his location, the desires of the inhabitants as evidenced by petitions, remonstrances or otherwise and all reasonable restrictions which are or may be placed upon the new district or districts by the council * * *.' Chap. 89, § 17(h), '35 C.S.A. Under that statute the inhabitants of the neighborhood do have an interest and, where the licensing authority has acted without jurisdiction or greatly abused its discretion, such inhabitants are without adequate remedy save by proceeding in the nature of certiorari.

Defendants' second contention: That the issue would become moot before determination by this court, has already been settled by us in Van De Vegt v. Board of Commissioners, 98 Colo. 161, 55 P.2d 703, 710, where like contention was made in suit in mandamus to compel the issuance of a license. We there said, 'A case is not moot where interests of a public character are asserted under conditions that may be immediately repeated, merely because the time for a particular order has expired.'

Having determined that plaintiffs may rightfully maintain their cause, we think it unnecessary to consider their first and second grounds of challenge, and confine ourselves to consideration solely of the question of abuse of discretion. We said in Van De Vegt v. Board of Commissioners, supra:

'Capricious or arbitrary exercise of discretion by an administrative board can arise in only three ways, namely: (a) By neglecting or refusing to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it. (b) By failing to give candid and honest consideration of the evidence before it on which it is authorized to act in exercising its discretion. (c) By exercising its discretion in such manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly considering the evidence must reach contrary conclusions. 'The intendment of a law which grants discretionary power to licensing officers, whether expressly or by necessary implication, is that the...