State Ex Rel. H. B. Miller v. City Of Spencer

• Decision Date: 03 April 1923
• Docket Number: No. 4863.,4863.
• Citation: 93 W.Va. 516
• Parties: State ex rel. H. B. Miller v. City of Spencer et als.
• Court: West Virginia Supreme Court

93 W.Va. 516

State ex rel. H. B. Miller

v.City of Spencer et als.

No. 4863

Supreme Court of Appeals of West Virginia.

Submitted March 20, 1923.

Decided April 3, 1923.

1. Mandamus Refusal of Pool Room License on Ground that Applicant Convicted Within Year of Operating Gambling House Not Reviewed on Mandamus.

The action of the council or other governing body of a city or town, under sections 35a and 35b of chapter 32, (Barnes' 1923) Code, refusing pool room license on the ground that the applicant has been convicted within the last year of operating a gambling house, will not be reviewed by this Court on mandamus, (p. 519).

2. Same Relator Must Establish Clear Legal Right to Relief, Regardless of Matters Set Up in Return.

The relator, in such case, must at the time of the hearing for mandamus establish a clear legal right to such relief. He can not relieve himself of this duty on the ground that the respondents have refused such license for cause, (alleged to be insufficient), other than that set up in their return to the petition and alternative writ. (p. 519.)

Action for mandamus by tbe State, on the relation of H. B. Miller, against the City of Spencer and others.

Writ refused.

Grover F. Hedges, for relator. 8. P. Bell, for respondent.

Litz, Judge:

The relator, H. B. Miller, seeks by mandamus to compel the city of Spencer, and the mayor and common council thereof, to grant him a license for the operation of a pool room therein.

The petition and alternative writ aver that the relator on the 1st day of March, 1923, made application in writing to the mayor and common council of the city of Spencer, for a certificate of license to keep for public use and resort a pool room, containing five pool tables, in a certain room of the Spencer Planing Mill Building, situate at 115 Court Street in said city, at the time tendering to said mayor and common council all fees for issuing such license and the tax thereon from the date of said application to July 1st, 1923; but that the recorder, who was acting in the place and stead of the mayor, and a majority of the members of the common council refused to issue such certificate of license on the ground that the operation of a pool room in the city would not be conducive to good morals. Copy of the order to this effect, entered by said council at the time of such refusal, is filed with the petition.

It is further averred that the relator had theretofore operated a pool room in said city, during which time he had complied with and obeyed all the provisions of the laws with respect to the operation of pool rooms in the State and city; that he is of good moral character, and that the place at which he desires to operate such pool room is a proper place for that purpose; that he has complied with all the conditions and requirements of the ordinances and laws relating to the granting of such license; that he has spent large sums of money in providing himself with pool tables and preparing to operate same; and that the action of said city authorities in refusing to grant him such license is wholly arbitrary and without just or reasonable cause.

Respondents, the city of Spencer, and the mayor and common council, in their joint answer to the petition and alternative writ, admit that the relator made application for license to operate a pool room, as set forth in the petition, but deny that he, while formerly operating a pool room in said city, complied with and obeyed all provisions of the laws with respect to the operation of pool rooms in this State, and the said city; and aver that the relator is not a suitable or proper person to conduct a pool room, for the reasons that he recently stated to the mayor (Andrew Parks) and the recorder (J. P. Price) that "he was a gambler"; that at the May term, 1921, of the circuit court of Roane county, in which said city is situate, relator was indicted for keeping and maintaining a common gambling house, and on the 18th day of May, 1922, upon his confession to this charge, was fined $100 by said court; and that the relator, as respondents are informed and believe, keeps or has kept a common gambling house.

Respondents further deny that they have arbitrarily and without just cause refused to grant relator such license, and aver that in refusing the same they have acted in good faith, upon reasonable grounds.

It will be seen that respondents have abandoned the ground given in their order refusing said license, that the operation of pool rooms is not conducive to good morals. They now assert that relator is not a fit or proper person to operate a pool room, and exhibit an authenticated copy of record showing his indictment and conviction as averred. The order of conviction recites a sentence of one day in jail and the assessment of $100 fine and...