Perkins v. Loux

• Decision Date: 24 March 1908
• Parties: J. B. PERKINS et al., Respondents, v. C. E. M. LOUX, as Mayor, et al., Appellants
• Court: Idaho Supreme Court

95 P. 694

14 Idaho 607

J. B. PERKINS et al., Respondents, v. C. E. M. LOUX, as Mayor, et al., Appellants

Supreme Court of Idaho

March 24, 1908

SALOON LICENSE-TRANSCRIPT-MOTION TO STRIKE-CITY COUNCIL-MANDATE TO COMPEL ISSUANCE OF LICENSE-STATUTORY RIGHT OR PRIVILEGE-ALLEGATIONS OF COMPLAINT-MOTION TO STRIKE PARTS OF ANSWER-GRANTING LICENSE-DISCRETION OF COUNCIL-CHARACTER OF LICENSEE-PEACE AND GOOD ORDER OF CITY.

1. Under the provisions of rule 17 of the rules of this court when it is desired to raise objections to transcript statement, the bond or undertaking on appeal, or notice of appeal or its service, or any objection to the record affecting the rights of the appellant to be heard on the points of error assigned, such objections must be taken at the first term after the transcript is filed in order to have them considered.

2. Where a plaintiff desires to avail himself of a statutory privilege or right to be granted on the facts set forth in the statute or ordinance, such facts must be alleged in the complaint.

3. Under the law and the provisions of the ordinance of the city of Pocatello, the city council has some discretion in granting liquor licenses, and it may refuse to grant a license to disreputable characters whose conduct of the liquor business would be dangerous to the public peace and quiet of the city.

(Syllabus by the court.)

APPEAL from the District Court of Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Proceeding to compel the mayor and city council of the city of Pocatello to grant a retail liquor license to plaintiffs. Judgment for plaintiffs. Reversed.

Reversed and remanded. Costs awarded to the appellant.

Robt. M. Terrell, and Standrod & Terrell, for Appellants.

"The court or courts charged with the duty of issuing licenses is vested with a sound judicial discretion, to be exercised in view of all the facts and circumstances of each particular case in granting or refusing the license applied for." (Crowley v. Christensen, 137 U.S. 86-95, 11 S.Ct 13, 34 L.Ed. 620; Perry v. City Council, 7 Utah 143, 25 P. 739, 11 L. R. A. 446; State v. City Council Cheyenne, 7 Wyo. 417, 52 P. 975, 40 L. R. A. 710; Plum v. Christie, 103 Ga. 686, 30 S.E. 762, 42 L. R. A. 181; Sherlock v. Stuart, 96 Mich. 193, 55 N.W. 845, 21 L. R. A. 580; In re Hoover, 30 F. 51; In re Sparrow, 138 Pa. 116, 20 A. 711; United States v. Ronan, 33 F. 117; Perkins v. Ledbetter, 68 Miss. 327, 8 So. 507; Batters v. Dunning, 49 Conn. 479; Ailstock v. Page, 77 Va. 386; Wells v. Torrey, 144 Mich. 689, 108 N.W. 423; Ex parte Clark, 69 Ark. 435, 64 S.W. 223; Commissioners v. Commissioners of Robeson Co., 107 N.C. 335, 12 S.E. 92; Hillsboro v. Smith, 110 N.C. 417, 14 S.E. 972; Raaf v. State Board, 11 Idaho 707, 84 P. 33.)

If there is a reasonable discretion in the city council to grant or refuse a particular application, its decision is not subject to be controlled or reviewed by the courts, and will not be interfered with except where arbitrary action on its part is made to appear. (23 Cyc. 136, 137; Hopson's Appeal, 65 Conn. 140, 31 A. 531; In re Henery, 124 Iowa 358, 100 N.W. 43; Thompson v. Koch, 98 Ky. 400, 33 S.W. 96; Cooper v. Hunt, 103 Mo.App. 9, 77 S.W. 483; Reed's Appeal, 114 Pa. 452, 6 A. 910; State v. Bonnell, 119 Ind. 494, 21 N.E. 1101; State v. Northfield, 94 Minn. 81, 101 N.W. 1063.)

Gray & Boyd, for Respondents.

In the absence of express legislative authority, the trustees of a city "are vested with no discretion as to the granting of liquor licenses, but must issue a license to anyone complying with the requirements." (Henry v. Barton, 107 Cal. 535, 40 P. 798; City of Rome v. Duke, 19 Ga. 93; Dillon Municipal Corp. 89; Frazee's Case, 63 Mich. 396, 6 Am. St. Rep. 310, 30 N.W. 72; Perry v. City Council, 7 Utah 143, 25 P. 739; Potter v. Village of Homer, 59 Mich. 8, 26 N.W. 208; Ex parte Levy, 43 Ark. 42, 51 Am. Rep. 550.)

No motion whatever was or should be necessary to keep the court from considering matters outside the record. If the minutes of the district court are not a part of the record on appeal, the court should not consider them and decide the question based upon them merely because they happen to be printed in the record. (In re Page's Estate, 12 Idaho 410, 86 P. 273; Williams v. Boise Basin Min. Co., 11 Idaho 233, 81 P. 646; Ramsey v. Hart, 1 Idaho 423; Ray v. Ray, 1 Idaho 705; Graham v. Linehan, 1 Idaho 780; Swanson v. Groat, 12 Idaho 148, 85 P. 384.)

SULLIVAN, J. Ailshie, C. J., concurs. STEWART, J., Dissenting in part.

OPINION

SULLIVAN, J.

This is an action commenced in the district court for a writ of mandate to compel the city council of the city of Pocatello to issue a license to the respondents to sell liquors at retail in said city. The complaint alleges the partnership of the plaintiffs, the corporate capacity of the city and that the defendants are its officers; the application for license, ordinances under which the same was asked and the refusal to grant the license. A general demurrer was interposed, which was overruled and defendants answered. On motion a large part of the answer was stricken out. Thereafter evidence was submitted by both parties and findings of fact and conclusions of law made and judgment entered in favor of the respondents. This appeal is from the judgment on the judgment-roll alone.

A motion to strike out portions of the transcript has been interposed, but it is contended by counsel for appellants that said motion comes too late, as the transcript was filed on the 9th of November, 1907, and the case was for hearing at the November term of this court, and as this motion was not made until the February term of the court, it came too late under the provisions of Rule 17 of the rules of this court, which rule provides that objections to the transcript, statement, the bond, undertaking on appeal, etc., or any objection to the record affecting the rights of the appellants to be heard on the points of error assigned, must be taken at the first term after the transcript is filed. We think the contention of counsel for appellants is correct and must be sustained, as motions of this kind must be made under said rule at the first term after the transcript is filed.

The overruling of the demurrer to the complaint is assigned as error. The demurrer goes to the seventh paragraph of the complaint, which is as follows:

"That on the 7th day of May, 1907, said Perkins & McCarty duly petitioned said Council as required by said Ordinances, to issue to them a license for three months as retail dealers in spirituous, vinous and malt liquors. Said retail liquor business to be conducted upon Lot Eighteen, in Block 372, in the City of Pocatello, Bannock County, Idaho, at what is known as the Tupper House on South First Avenue.

"And said petition being then and there signed by not less than a majority of the property owners and tenants of property owners of the said Block in which it was so intended to conduct said business, and said petition also being accompanied by $ 126.00."

It is contended that the allegations in said paragraph are not sufficient, for the reason that the petition required to be presented is not alleged to have been signed by a majority of the property owners and tenants of property owners of the block in which it was intended to conduct said business, the alley being the dividing line of the block. It is contended that the allegation in the complaint alleges that the petition presented was signed by not less than a majority of the property owners and tenants of property owners in the block in which it was intended to conduct said business, but it does not allege that the signers of said petition are property owners and tenants of property owners residing in the block where such business is to be conducted, the alley being the dividing line. A part of sec. 115 of the ordinances of the city of Pocatello is as follows:

"All applications for such license shall be made by petition to the city council, said petition to be signed by not less than the majority of property owners, and tenants of property owners, residing in that block in which it is intended to conduct the business for which the license is sought. The alley being the dividing line of the block."

That section provides that no license shall be issued except on the conditions named therein, the presentation of a petition signed by a majority of the property owners and tenants thereof, residing in the half block where such business is to be carried on. The clear intent of the language used in said ordinance is that the petition required to be presented to the city council must be signed by a majority of the property owners or tenants of property owners residing in the half block where said business is to be conducted. That being true, the demurrer should have been sustained, for the reason that the complaint fails to state a cause of action, for when one claims a right under the statute, he must allege all the facts required by the statute in order to bring himself within its provisions. This court...