Paulson's Steerhead Restaurant, Inc. v. Morgan
| Decision Date | 22 March 1962 |
| Docket Number | 6 Div. 479 |
| Citation | 273 Ala. 235,139 So.2d 330 |
| Parties | PAULSON'S STEERHEAD RESTAURANT, INC., et al. v. James W. MORGAN et al., Members of City Commission of Birmingham. |
| Court | Alabama Supreme Court |
Fred Blanton and Geo. E. Trawick, Birmingham, for appellants.
Watts E. Davis, Birmingham, for appellees.
This is an appeal by petitioners from a judgment sustaining a demurrer to their petition for mandamus and dismissing it.
Petitioners allege that they are a corporation and the officers and shareholders thereof; that the respondents are the individuals who are members of the Commission of the City of Birmingham and the Commission itself; that petitioners are qualified to engage in a restaurant business in Birmingham; that petitioners have, since incorporation, conducted a restaurant business at a specified address in Birmingham, that said premises are properly equipped for a restaurant business, and the business is properly conducted; that the individual petitioners are of high moral character and are responsible and law-abiding citizens of Birmingham; that other restaurants of similar kind, located in the immediate vicinity of petitioners' premises, have applied for and obtained the approval of the respondents for the issuance of a restaurant liquor license as provided by Title 29, Code 1940; that an application in proper form was made by petitioners to the City of Birmingham for a restaurant liquor license; that petitioners, on information and belief, aver that their application was referred to the Police Department of the City of Birmingham for investigation and report, and that the report thereof was favorable to petitioners; that respondents, in a meeting of the Commission of the City of Birmingham, considered petitioners' application for a restaurant liquor license and that respondents adopted a resolution denying the application; that denial was improperly and illegally motivated by the malice of one of the respondents against the husband of one of petitioners; that the other respondents did not exercise an independent judgment but accepted and ratified the judgment of that respondent who was motivated by malice; that the denial of petitioners' application was arbitrary and capicious, and that petitioners are in all respects qualified to be issued a restaurant liquor license as provided by law. The prayer is for the alternative writ of mandamus, and, on final hearing, for the peremptory writ requiring respondents to approve issuance of restaurant liquor license to petitioners.
Respondents demurred on the ground, among others, that the consent or approval by respondents, of the issuance of a restaurant liquor license to petitioners, is a matter lying within the irrevisable discretion of respondents and is not subject to review by the court in this proceeding.
Petitioners assign as errors: that the court erred in sustaining the demurrer, in dismissing the petition, and in dismissing the petitioner without allowing petitioners to amend it.
Petitioners set out two propositions of law in brief, to wit:
ARBITRARY CONDUCT OR SOME ULTERIOR MOTICE, THE EXERCISE OF SUCH DISCRETION MAY BE CONTROLLED BY MANDAMUS.'
Petitioners do not, as we understand their argument, assert that the statute is invalid for the reason that it violates any constitutional provision, or for any other reason, and, therefore, we are not called upon and do not undertake to determine the validity of the statute.
The question presented, as we understand it, is one of statutory construction. Petitioners state in brief as follows:
Consideration of the correctness of petitioners' first proposition requires that we determine the nature of the power conferred by the statute on the municipal governing body with respect to granting or withholding its 'approval,' or 'consent and approval,' of the issuance of a restaurant liquor license by the Alabama Alcoholic Beverage Control Board, hereinafter referred to as the ABC Board or the board. The statute makes such consent and approval by the municipal governing body a condition precedent to the issuance of such license by the board.
If appellants be correct in their assertion that the power granted to the municipal governing body is merely the power to do an administrative act, or the power to do a discretionary act which is subject to judicial review, then we reach the question posed by the second proposition, i. e., do the allegations of the petition show an abuse of discretion, or arbitrary action, which the courts will revise.
On the other hand, if the statute confers on the municipal governing body a power to do an act which is neither merely administrative, nor a discretionary power subject to judicial revision, but which is an irrevisable power with the exercise of which the courts are not authorized to interfere, the questions posed by appellants' second proposition is not reached.
We consider appellants' first proposition and the authorities relied on to support it. First cited are §§ 5, 13, and 14, Title 29, Code 1940, as amended. Pertinent provisions of these sections, and also § 15, Title 29, recite as follows:
* * *
* * *
'To grant, issue and suspend or revoke for cause liquor licenses, and alcohol permits, as provided in this chapter.
'To grant, issue and suspend or revoke for cause malt or brewed and vinous beverage licenses, as provided in this chapter.'
* * *'
In support of Proposition I, petitioners cite State ex rel. Morrow v. Santa Cruz, 252 Ala. 130, 39 So.2d 786, and the Opinion of Attorney General, of May 29, 1947, Vol. 7, page 171. In State ex rel. Morrow v. Santa Cruz, supra, this court held that, under the allegation and proof in that case, the petitioner for mandamus had shown a right to the peremptory writ of mandamus to require the license officer of the City of Mobile to issue to petitioner a license for the sale of beer in a cafe or restaurant. The opinion of the Attorney General states that the city has authority to levy a reasonable license for selling beer but has no authority to prohibit the selling of beer by one legally licensed to do so by the State. The opinion also states that a municipality may collect licenses for hotels, restaurants, or clubs located without the city limits but within the police jurisdiction. Neither the cited case, nor the opinion, as it seems to ...
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USA Oil Corp. v. City of Lipscomb
...governing body is a condition precedent to the issuance of such a license by the A.B.C. Board. Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 237, 239, 139 So.2d 330. It is also true that in Steerhead the court held that the legislature has made a distinction between the issu......
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Harrison v. Buckhalt
...Ala. 91, 312 So.2d 385 (1975); USA Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974); Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962). Our rule is that a "municipality may prescribe conditions as a prerequisite to the issuance of a beer lic......
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Smith v. City of Huntsville
...Ala. 91, 312 So.2d 385 (1975); U.S.A. Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974); Paulson's Steerhead Restaurant v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962); Norwood v. Capps, 278 Ala. 218, 177 So.2d 324 (1965). Although a municipality may not prescribe conditions t......
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Phillips v. City of Citronelle
...by the main opinion on a more substantive ground — one that compels me respectfully to dissent. In Paulson's Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962), the Supreme Court discussed the unique nature of liquor licenses and the resulting broad discretion afforded......