State Ex Rel F. E. Hoffman El Al. Relator v. Town Of Clendenin S.

• Decision Date: 05 December 1922
• Court: West Virginia Supreme Court
• Parties: State ex rel F. E. Hoffman el al. Relator v. Town of Clendenin et als., Respondents.

92 W.Va. 618

State ex rel F. E. Hoffman el al. Relator

v. Town of Clendenin et als., Respondents.

Supreme Court of Appeals of West Virginia.

Opinion Filed January 10, 1923.

Submitted December 15, 1922.

Decided December 5, 1922.

1. Municipal Corporations Municipality Held Without Arbitrary Power to Refuse License to Operate Pool Tables Within Corporate Limits.

Sec. 35-a of chap. 109, Acts 1921, does not given the common council of a municipality chartered under chap. 47 of the Code, arbitrary power to refuse to grant license to operate a pool table within the corporate limits, (p. 620).

2. Mandamus Lies to Compel Issuance by Municipality of License to Operate Pool Table, and That Discretion Not Abused.

When such license has been arbitrarily refused by the common council, and its discretion abused in that regard, mandamus will issue to compel the issuance of such license, (p. 621).

3. Same Burden on Municipality to Show Reasonable Grounds for Refusal of License to Operate Pool Table, and That Discretion Not Abused.

In a mandamus proceeding to compel the issuance of license to operate a pool table in a municipality where it appears thaat the relator has complied with all the requirements of law relating to the application for such license, the burden of showing reasonable grounds on which the refusal is based, and that the licensing authority has not abused its discretion, rests upon the respondents, (p. 621).

4. Nuisance Keeping Pool Tables not a Common Nuisance per se.

The business of keeping pool tables for public use and resort is not a common nuisance per se. (p. 622).

Mandamus by the State, on the relation of F. E. Hoffman and another, against the town of Clendenin and others, to compel the mayor and council defendants to issue to plaintiffs a license to maintain and operate pool tables.

Writ awarded.

Horace S. Meldahl, for relators. D. W. Taylor, for respondents.

Lively, Judge:

Petitioners, F. E. Hoffman and H. P. Hammock, pray for mandamus to compel the mayor and town council of the town of Clendenin to issue to them license to maintain and operate pool tables in the rear of their restaurant room at the corner of Piedmont Avenue and Third Street. The first application did not specify the place at which the license was desired, and was refused October 19, 1922. Another application, which is in proper form, accompanied by the license fees, was "laid on the table," December 7, 1922. Petitioners aver that they are of good moral character, have violated none of the ordinances of the town; that the place at which they desire to operate the tables is a proper place for that purpose; and that they have complied with all of the conditions and requirements of the ordinances and laws relating to the granting of such license; that other persons are operating such tables under licenses issued by the municipal authorities; that petitioners have expended large sums of money in purchasing tables and in preparing to operate the same, encouraged to do so by members of the common council; and that the common council has, arbitrarily and without just or reasonable grounds, refused to grant them the license applied for.

The mayor and a majority of the council in their return say: (1) That upon information and belief a former council, about 10 years ago, passed an ordinance to the effect that no public pool room or saloon should be licensed within certain defined limits within the municipality, and that the location of petitioners' room as stated in the application is within that area; that said ordinance with other town records was destroyed by fire, but that the ordinance is yet in force and effect; (2) that petitioners have violated the ordinances of the town by keeping their pool room open for public use and resort, in defiance of the town authorities, pending their application for license during the months of October and November; (3) that the place at which the business is to be conducted is not a proper place for such business, in that it is upon the principal street of the town, the inhabtiants of which are largely church going country folk who are opposed to the operation of pool tables where their children will come within the influence thereof, and that by reason of its proposed location will be detrimental to the welfare and good morals of the inhabitants. They deny that in refusing the license applied for they have acted arbitrarily, and illegally discriminated against petitioners and in favor of others similarly situated.

Petitioners deny that the purported ordinance was ever enacted, and therefore could not have been destroyed by fire; they deny that during the months of October and November they unlawfully maintained for public use and resort certain pool tables in defiance of the town authorities; and deny that the majority of the people are opposed to the operation of the tables at the place designated in their application, or that the place, by reason of being upon the principal street, is an improper one, or will be detrimental to the good order, welfare and morals of the inhabitants.

Respondents moved to quash the alternative writ: (1) because the statute, sec. 35-a chap. 109, Acts 1921, vests discretion in the council either to refuse or grant pool table licenses; and the council having exercised its discretion the courts cannot interfere; (2) that it does not appear from the petition that a license has been refused.

The petition charges that application in proper form was presented to the council, dated November 15th, considered by the council on the 17th following, and no action taken thereon, and finally on December 7th was "laid on the table." It further charges that license has been arbitrarily refused by the council. The return admits the refusal, and justifies the same on the grounds before set out. But looking to the petition alone, we think the necessary and logical conclusion from the allegations is that the action of the council in laying the application on the table was tantamount to refusal. We have heretofore held that said sec. 35-a does not confer on the council arbitrary discretion to grant or refuse license for the several kinds of business therein enumerated. State ex rel Hamrick v. County Court, decided this term. The keeping of pool tables for public resort and use is a legitimate business recognized as such by state policy. Reasonable regulation may be prescribed for its conduct, but because it is regulated it does not necessarily follow that the business may be arbitrarily prohibited. Theatres, hotels, restaurants, drug stores, taxi-cab stands, are likewise subject to regulation, but the lawfulness of such enterprises cannot be questioned. Regulation of a business...