Sheeley v. Board of County Com'rs In and For Costilla County
| Citation | 137 Colo. 350,325 P.2d 275 |
| Decision Date | 12 May 1958 |
| Docket Number | No. 18510,18510 |
| Parties | Glen E. SHEELEY, Plaintiff in Error, v. The BOARD OF COUNTY COMMISSIONERS In and For the COUNTY OF COSTILLA and State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Whitford W. Myers, Merle M. Marshall, Alamosa, for plaintiff in error.
D. O. Tipton, San Luis, for defendant in error.
Plaintiff in error Sheeley filed an action in the District Court under Rule 106(a)(2) R.C.P. seeking relief in the nature of mandamus to compel the Board of County Commissioners of Costilla County to issue him a Restaurant Liquor License based upon his application theretofore made, and denied by the Board. The Board filed its answer denying that Sheeley was entitled to relief. The District Court at the trial, upon finding that there was no record of proceedings before the Board, ordered Sheeley to republish his notice and the Board to then hold a regular hearing with a reporter present to that Sheeley, if aggrieved, would be able to procure a record for review by the court.
Sheeley objected to the procedure ordered by the trial court and is here by writ of error asserting that this being an action in mandamus and not of review, he is entitled to the relief sought because he was denied the right to present his evidence below to both the Board and the trial court, and having been denied that right, is entitled to a summary judgment directing the license to issue forthwith.
It appears from the pleadings in the record before us that the published notice was first admitted in evidence by stipulation of counsel at the trial; that the Board there took the position, according to its counsel, that '* * * the Commissioners had the right to act on the deal and refuse the application' and 'I don't think they had to state any reason.' Later, when Sheeley desired to call his witnesses, counsel for the Board objected to the introduction of the notice as immaterial, incompetent and improper. The trial court did not rule on the objection--it did however proceed to make the order objected to. We thus have a record comprising only the pleadings and one exhibit--the notice.
It appears that at the time and place set forth in his notice of application for the license Sheeley appeared; that no petitions or remonstrances had been filed, and no one appeared except the petitioner. It further appears that the Board did not conduct a hearing, Sheeley being advised by one of the Commissioners that his application had...
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