Potter v. Anderson

• Decision Date: 18 May 1964
• Docket Number: No. 20594,20594
• Citation: 392 P.2d 650,155 Colo. 25
• Parties: Clayton POTTER et al., Plaintiffs in Error, v. Byron A. ANDERSON, as Secretary of State of the State of Colorado and Louis Leonard Napolitan, Defendants in Error.
• Court: Colorado Supreme Court

Page 650

392 P.2d 650

155 Colo. 25

Clayton POTTER et al., Plaintiffs in Error, v. Byron A. ANDERSON, as Secretary of State of the State of

Colorado and Louis Leonard Napolitan, Defendants in Error.

No. 20594.

Supreme Court of Colorado, In Department.

May 18, 1964.

Rehearing Denied June 22, 1964.

Walter F. Scherer, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Zarlengo, Zarlengo & Seavy, Denver, for defendants in error.

DAY, Justice.

Plaintiffs in error were petitioners in the trial court and will be referred to as such. Defendant in error was originally George J. Baker who at the time the action was commenced was Secretary of State, for whom Byron A. Anderson, the present holder of the office has been substituted.

Petitioners sought a court order in the nature of mandamus compelling the Secretary of State, as state liquor licensing authority, to show cause why he should not hold a public hearing and afford them an opportunity to appear and present evidence in connection with their demand for revocation of the liquor license issued to Leonard Louis Napolitan. In their petition they allege that the Board of County Commissioners of Adams County ordered the issuance of the license and that the Secretary of State concurred therein, and that the license was issued to Napolitan. They alleged that the action of the Secretary of State was illegal and void 'in that defendant [referring to Secretary of State Baker] did not before granting said license visit and inspect the plant or property in which the applicant proposed to conduct his business; nor did he investigate the fitness of the applicant to conduct his business; nor did he consider the reasonable requirements of the neighborhood and the desires of the inhabitants thereof as evidenced by petitions, remonstrances or otherwise.'

They further allege that they requested the opportunity of a public hearing before defendant 'to present evidence by petitions, remonstrances or otherwise, that the reasonable needs of the neighborhood * * * were already served in that a license of the same kind and character * * * was already in existence and operating * * * immediately adjoining the premises sought to be licensed by Napolitan.'

By motion the Attorney General appearing for the Secretary of State moved to dismiss the complaint, and after argument the court granted the motion. It is to the judgment of dismissal that this writ of error is directed.

We hold that the trial court was correct. In its ruling the court said:

'The great weight of authority is that before a writ of mandamus may be issued requiring the doing of some act by a public officer, the law must clearly require the act to be done. The statutes providing for the procedures that must be followed by the Secretary of State prior to the issuance of a liquor license do not require a hearing, and further, no hearing after issuance is in any manner provided for in the statutes.'

This conclusion of the court is supported by Ellis v. Moses, 76 Colo. 214, 230 P. 802. Mandamus is an extraordinary remedy. It may be used to compel the performance by a public officer of a plain legal duty devolving upon him by virtue of his office or which the law enjoins as a duty resulting from the office. It will not issue to coerce an official to perform acts which it is not his official duty to perform. The writ will not issue in doubtful cases, but only where the duty sought to be enforced is clear and where no other specific and adequate mode of relief is available to the complaining party. 34 Am.Jur. (Mandamus) § 32, § 142.

The pertinent liquor statutes are C.R.S. '53, 75-2-7, 8 and 9. They may be summarized as requiring the Secretary of State...