Reichelderfer v. Johnson, 6082.

• Decision Date: 25 June 1934
• Docket Number: No. 6082.,6082.
• Parties: REICHELDERFER et al., Com'rs, v. JOHNSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 App. DC 334, 72 F.2d 552 (1934)

REICHELDERFER et al., Com'rs, v. JOHNSON.

No. 6082.

United States Court of Appeals for the District of Columbia.

June 25, 1934.

William W. Bride and Vernon E. West, both of Washington, D. C., for appellants.

Joseph T. Sherier, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

The appellee filed a petition in the court below praying a writ of mandamus to the appellants commanding them to issue a permit authorizing him to sell beverages, including beer containing one-half of 1 per cent. of alcohol by volume and not more than 3½ per cent. of alcohol by weight. The issuance of permits to sell such beverages within the District of Columbia is regulated by the act of April 5, 1933 (73d Cong., 1st Sess., c. 19 D. C. Code Supp. I, 1933, T. 20, 1801 and note, 1802-1816). The particular form of permit desired is what is designated by that act as an "off sale" permit, which authorizes the permittee to sell beverages only for consumption off the premises designated in the permit. The pertinent provision of the act reads as follows: "Sec. 5. (a) Any individual, partnership, or corporation desiring a permit under this chapter shall file with the Commissioners an application therefor in such form as the Commissioners may prescribe, and such application shall contain such information as the Commissioners may require, and * * * shall contain a statement setting forth the name and address of the true and actual owner of the premises upon which the business to be permitted is to be conducted. Before a permit is issued the Commissioners shall satisfy themselves * * * (5) that, in case of an applicant for an `on sale' or an `off sale' permit, no manufacturer or wholesaler of beverages (other than the applicant) has a substantial financial interest, direct or indirect, in the business for which the permit is requested or in the premises in respect of which such permit is to be issued, and that such business will not be conducted with any money, equipment, furniture, fixtures, or property rented from, or loaned or given by, any manufacturer or wholesaler." (D. C. Code Supp. I, 1933, T. 20, § 1805 (a).

The premises in respect of which the petitioner applied to the Commissioners for a permit are owned by Christian Heurich, Jr., who was treasurer of the Christian Heurich Brewing Company and owner of 1,020 shares of the total capitalization of 8,000 shares of the stock of that company. This company held a manufacturer's permit under the same act of Congress, and is engaged in the manufacture of beverages pursuant to that act in the District of Columbia.

On May 26, 1933, the Commissioners denied Johnson's application for an "off sale" permit, and entered the following order:

"Ordered:

"That upon consideration of the application of Raymond T. Johnson, 4200 Wisconsin Avenue, for an off sale beverage permit under the act of Congress of April 5, 1933, said application being Number 1765, the Commissioners of the District of Columbia hereby deny said application and direct the refund to the applicant of the deposit made by him with said application; said application is denied on the following ground:

"That Christian Heurich, Jr., owner of said premises 4200 Wisconsin Avenue, upon which the business of the applicant is to be conducted, is the treasurer of the Chr. Heurich Brewing Company which is engaged in the business of manufacturing beverages as defined in the act of April 5, 1933, and that said Heurich is the owner of 1,020 shares out of a total capitalization of 8,000 shares at the par value of $100 each of said corporation, and that, therefore, a manufacturer of such beverages has a substantial financial interest, direct or indirect, in the premises in respect of which such permit is desired.

"By order of the Board of Commissioners, D. C.

"Daniel E. Garges "Secretary to the Board."

In their answer to the petition, the Commissioners alleged that a manufacturer of beverages as defined in the act of April 5, 1933, had a substantial financial interest, direct or indirect, in the premises in respect of which the permit was desired. To this answer the petitioner demurred, the court below sustained the demurrer, and ordered the writ to issue.

The Commissioners have not contended on this appeal that the Christian Heurich Brewing Company, which is conceded by the petitioner to be a manufacturer, has any interest in the premises. Their argument is that Christian Heurich, Jr., owner of the premises, by virtue of his officership and ownership in the company, is a manufacturer within the meaning of the statute.

In their contentions here both parties appear to lose sight of the traditional and well-established limitations upon writs of mandamus to public officers, for mandamus will not issue where its effect will be to dictate to an officer in the exercise of a discretionary function, or to serve the purpose of a writ of error. Only where a mandatory ministerial duty is plainly imposed upon the officer will mandamus lie against him. And, since the earliest cases, it has been held that where an officer's action involves the exercise of his discretion in the construction and interpretation of a statute, mandamus will not issue to compel him to act upon one construction rather than another. Decatur v. Paulding, 14 Pet. 497, 599 Append., 10 L. Ed. 559, 609; U. S. ex rel. Dunlap v. Black, 128 U. S. 40, 9 S. Ct. 12, 32 L. Ed. 354; Gaines v. Thompson, 7 Wall. 347, 19 L. Ed. 62; Ness v. Fisher, 223 U. S. 683, 32 S. Ct. 356, 56 L. Ed. 610; U. S. ex rel. Riverside Oil Company v. Hitchcock, 190 U. S. 316, 23 S. Ct. 698, 47 L. Ed. 1074; U. S. ex rel. Hall v. Payne, 254 U. S. 343, 41 S. Ct. 131, 65 L. Ed. 295; Wilbur v. U. S., 281 U. S. 207, 50 S. Ct. 320, 74 L. Ed. 809; Interstate Commerce Commission v. New York, N. H. & H. R. Company, 287 U. S. 178, 53 S. Ct. 106, 77 L. Ed. 248; U. S. v. Interstate Commerce Commission, 56 App. D. C. 40, 8 F.(2d) 901; Commercial Solvents Corporation v. Mellon, 51 App. D. C. 146, 277 F. 548; U. S. ex rel. Schwerdtfeger v. Brownlow, 45 App. D. C. 412; Lochren v. Long, 6 App. D. C. 486; Seymour v. U. S. ex rel. South Carolina, 2 App. D. C. 240; Kimberlin v. Commission to Five Civilized Tribes (C. C. A.) 109 F. 653; American Casualty Company v. Fyler, 60 Conn. 448, 22 A. 494, 25 Am. St. Rep. 337; Troy v. Barnitt, 165 A. 576, 11 N. J. Misc. 275; U. S. v. Judge Lawrence, 3 Dall. 42, 1 L. Ed. 502.

Of course, almost every act of a federal official requires in some degree the construction of a statute, and, where its meaning is so plain that there can be no reasonable difference of opinion concerning its construction, mandamus will lie to prevent action by an officer predicated upon an obvious misconstruction of the statute. Roberts v. U. S., 176 U. S. 221, 20 S. Ct. 376, 44 L. Ed. 443; Lane v. Hoglund, 244 U. S. 174, 37 S. Ct. 558, 61 L. Ed. 1066; Work v. Lynn, 266 U. S. 161, 45 S. Ct. 39, 69 L. Ed. 223; Work v. McAlester, etc., Co., 262 U. S. 200, 43 S. Ct. 580, 67 L. Ed. 949; Wilbur v. Krushnic, 280 U. S. 306, 50 S. Ct. 103, 74 L. Ed. 445; McCarl v. Miguel, 62 App. D. C. 259, 66 F.(2d) 564; U. S. v. Fall, 51 App. D. C. 171, 277 F. 573; Cook v. City of Shreveport, 163 La. 518, 112 So. 402. But the writ is not justified because the court disagrees with the interpretation adopted by the officer, or because it might have come to a different conclusion had the question of construction been presented to it in a distinct proceeding. United States ex rel. Dunlap v. Black, 128 U. S. 40, 9 S. Ct. 12, 32 L. Ed. 354; State v. Bartholomew, 108 Conn. 246, 142 A. 800. Despite such a difference of opinion between the court and the officer, mandamus will not lie if the construction of the officer is a possible one, and there is room for an honest difference of opinion. Ness v. Fisher, 223 U. S. 683, 32 S. Ct. 356, 56 L. Ed. 610; U. S. ex rel. Hall v. Payne, 254 U. S. 343, 41 S. Ct. 131, 65 L. Ed. 295; Interstate Commerce Commission v. New York, N. H. & H. R. Co., 287 U. S. 178, 53 S. Ct. 106, 77 L. Ed. 248; U. S. ex rel. Schwerdtfeger v. Brownlow, 45 App. D. C. 412; Phillips v. Hitchcock, 19 App. D. C. 237; State v. Bartholomew, 108 Conn. 246, 142 A. 800.

Guided by these settled principles defining the right of a petitioner to such a writ in such a case, we proceed to examine the statute in question with a view to determining whether the construction adopted by the Commissioners is a possible one. The purpose of the pertinent provision is clear. One of the well-recognized objections to the methods of sale and distribution of liquors prior to the era of prohibition was the fact that brewers and wholesalers frequently monopolized and controlled the retail trade. As stated by Judge Nichols in Marks v. Conrad Seipp Brewing Co., 74 Ind. App. 50, 128 N. E. 620, 621: "It is a matter of history that a part of the corrupting influence of saloons emanated from the fact that many of them were owned or controlled by the breweries, by whom they were placed in the hands of irresponsible persons who were dependent upon the breweries for their financial support. Public policy demanded that such a condition of dependence and irresponsible operation be abrogated, and the act above mentioned resulted. Under it one under the dependent influence of the brewery, as in this case, by accepting a loan from it under an agreement to use its product exclusively, could not obtain a license to sell intoxicating liquors, for he could not, by his application, qualify himself as a fit and proper person to have such license, unless by his sworn application he committed perjury."

Congress recognized this undesirable aspect of the liquor traffic in the period before repeal, and attempted to guard against its recurrence by appropriate legislation. The debates upon the bill preceding its passage by the House of Representatives give ample...