State ex rel. McCarten v. Corwin

• Decision Date: 13 February 1947
• Docket Number: 8694.
• Citation: 177 P.2d 189,119 Mont. 520
• Parties: STATE ex rel. McCARTEN v. CORWIN et al.
• Court: Montana Supreme Court

177 P.2d 189

119 Mont. 520

STATE ex rel. McCARTEN v. CORWIN et al.

No. 8694.

Supreme Court of Montana

February 13, 1947

Appeal from District Court, Seventh Judicial District, Richland County; F. S. P. Foss, Judge.

Mandamus proceeding by the State, on the relation of Sherman McCarten against John W. Corwin and others, as the Montana Liquor Control Board, to compel the Board to issue retail beer and liquor licenses to relator. From a judgment granting a peremptory writ directing issuance of the licenses and awarding relator damages, defendants appeal.

Judgment affirmed.

Paul W. Smith, David R. Smith and J. Miller Smith all of Helena, for appellants.

C. T Sanders, of Sidney, for respondent.

ADAIR Chief Justice.

Sherman McCarten had a lease upon the premises known as No. 101 Central Avenue North, in the business district of Sidney, Montana, wherein he conducted a general cafe and restaurant business.

On January 30, 1946, he made written application in proper form to the Montana Liquor Control Board for licenses to sell beer and liquor at retail at the aforesaid premises. The applications showed the applicant to be qualified and that the building and premises wherein he proposed to carry on his business met all the requirements of the law as to suitable quarters. Cashier's checks in the proper amounts and payable to the board accompanied the applications.

The board denied the applications, whereupon McCarten brought mandamus proceedings in the district court of Richland county seeking a writ requiring the Montana Liquor Control Board to issue the licenses for which he had applied.

The petition for the writ alleges that the board had denied McCarten's application because it had been advised by the city of Sidney, through its city attorney, that the issuance of additional licenses would create an additional police problem in said city.

The board, in its answer, admits that it had notified MCarten that his applications for licenses were rejected because the board had been advised by the city of Sidney that the issuance of additional licenses in Sidney would create therein an additional police problem and alleged the existence of certain ordinances of the city limiting to five the number of retail beer and liquor licenses to be issued in said city and alleging that such maximum number of licenses had been issued. The board's answer also alleges 'that under the present conditions the City of Sidney cannot police more than five bars and that the licensing of more than five bars in said city would create additional police problems with which the City of Sidney cannot cope with; that the granting of a beer license and a liquor license to the petitioner, Sherman McCarten would cause the number of licenses in the City of Sidney to exceed the said number of five; that the City of Sidney does not have sufficient funds in its police department to employ more policemen; that the issuing of said licenses to the petitioner, Sherman McCarten would cause an undue hardship upon the City of Sidney which in the judgment of the Montana Liquor Control Board is unwarranted and unfair; that the Montana Liquor Control Board found that in its judgment the issuing of said licenses to Sherman McCarten would endanger the protection, welfare and safety of the people of City of Sidney and of the State of Montana; that because of the fact that the premises for which Sherman McCarten applied for licenses could not be properly policed said premises were not suitable for the purpose of establishing a business of selling beer and liquor.'

A reply filed by McCarten placed in issue the affirmative matter of the answer and the cause proceeded to trial before the court without a jury.

At the trial the applicant, McCarten, testified that for approximately eight years, under licenses theretofore issued to him by the board, he had operated 'The Triangle' tavern located about three miles south of Sidney; that during such time he personally conducted the business and attended to policing thereof without calling upon the local authorities to supply any officers or deputies on the premises; that he found he had been able to police his own business in the past and that, should the licenses be issued, he proposed to conduct and police his new business in like manner. This evidence is uncontradicted.

After hearing and considering the evidence the court made written findings of fact and conclusions of law and, in accordance therewith, rendered judgment for McCarten ordering the issuance of a peremptory writ directing the Montana Liquor Control Board to grant McCarten a license to sell beer and a license to sell liquor, both at retail, at the premises designated as 101 Central Avenue North in Sidney and awarding him damages in the sum of $1,200 and costs. From such judgment the Montana Liquor Control Board has appealed.

The appellant board's first specification of error is that the trial court erred in making its finding of fact XV which recites: 'That the defendant board denied the applications of the relator herein for a license to sell beer at retail and a license to sell liquor at retail by reason of findings numbered X, XI, and because advised that the mayor and city council of Sidney did not desire further licenses issued for the sale at retail of beer and liquor in the City of Sidney.'

Appellant raises no question as to the correctness of any of the trial court's findings of fact other than finding XV, supra.

The district court's findings of fact X and XI referred to in finding XV, supra, recite:

'X. That the City of Sidney, Montana, has two ordinances relating to the licensing and regulation of the business of selling beer and liquor at retail, one of said ordinances providing that the number of beer licenses to be issued by the City of Sidney to retailers shall not, in any one year, exceed five until such time as the population within the said city shall exceed five thousand persons; that the other ordinance provides that the number of liquor licenses issued by the City of Sidney to retailers shall not, in any one year, exceed five until such time as the population within the said city shall exceed five thousand persons.

'XI. That at the time the applications for licenses were filed the City of Sidney had already issued five licenses for the sale of beer at retail and five licenses for the sale of liquor at retail within the corporate limits of the City of Sidney, Montana.'

On appeal to this court the presumption is that the findings and the judgment based thereon are correct and such findings must be sustained if they are supported by substantial evidence. State ex rel. Anderson v. Gile, Mont., 172 P.2d 583.

At the trial before the district court the appellant board introduced in evidence certified copies of ordinances Nos. 131, 134 and 135 of the city of Sidney, which purport to limit to five the number of retail beer and retail liquor licenses to be issued in said city, together with evidence that at the time McCarten made his applications the city had already issued five such licenses for places operating within the corporate limits of said city.

The appellant board also introduced in evidence in the district court a letter received by it from the city attorney of Sidney dated November 29, 1945, directing the board's attention to the city ordinances limiting the number of bars for which licenses will be granted to five and stating further that, 'The Mayor and City Council have asked me to advise you of the fact that they are very anxious that, as a proper police regulation in Sidney, at least under present conditions and present population, no further licenses shall be granted in this community by the State Board.'

About six weeks before the foregoing letter was written, to- wit, on October 16, 1945, this court pronounced its decision in the case of State ex rel. Wiley v. District Court, No. 8615, Mont., 164 P.2d 358, holding that, by the enactment of Chapter 163, Laws of 1941, the 1941 legislative assembly had effected a change in the public policy of this state by depriving the local authorities, including the licensing authorities of incorporated cities and towns, of the measure of local control which had been granted them by the enactment of Chapter 221, Laws of 1939, and that under the 1941 Act the holder of a retail liquor license issued by the Montana Liquor Control Board was entitled to engage in business and operate under such license without interference by the local city authorities subject only to the payment by him of such fee as may be lawfully exacted by the city pursuant to the existing statute.

A second letter from the city attorney of Sidney, dated January 28, 1946, and addressed to J. A. Buley, administrator of the board, was introduced in evidence in the district court by the appellant board. The letter reads: 'Dear Mr. Buley:

'Your letter of January 25 at hand and its contents carefully noted, and particularly in reference to the application of Mr. Sherman McCarten for a liquor license. I am enclosing herewith a copy of Ordinance No. 131 of the City of Sidney, Montana, concerning the licensing of or sale of retail liquor in Sidney, and you will note that liquor licenses are limited at the present time to five under our ordinance. Until such time as the population exceeds 5,000 it is not proposed to license any more, such an enumeration to be as a result of official census to be taken.

'This licensing ordinance was passed, of course, in the belief by the City Council of the City of Sidney, that they had a proper right to pass such a legal licensing law, under the Statutes of Montana.

'We appreciate the desire of your Board to cooperate in every way possible with the City of Sidney and it is...