State ex rel. Schwartz v. Jones

• Decision Date: 16 April 1945
• Docket Number: 2313
• Citation: 157 P.2d 993,61 Wyo. 350
• Parties: THE STATE OF WYOMING, on the relation of IDA B. SCHWARTZ, Plaintiff and Appellant, v. BRUCE S. JONES, AS MAYOR OF THE CITY OF CHEYENNE, GEORGE L. KEMP and GUS FLEISCHLI, AS COMMISSIONERS OF THE CITY OF CHEYENNE, CONSTITUTING THE CITY COUNCIL OF THE CITY OF CHEYENNE, A MUNICIPAL CORPORATION, and S.D. MARKLEY, AS CITY CLERK OF THE CITY OF CHEYENNE, A MUNICIPAL CORPORATION, Defendants and Respondents
• Court: Wyoming Supreme Court

157 P.2d 993

61 Wyo. 350

THE STATE OF WYOMING, on the relation of IDA B. SCHWARTZ, Plaintiff and Appellant, v. BRUCE S. JONES, AS MAYOR OF THE CITY OF CHEYENNE, GEORGE L. KEMP and GUS FLEISCHLI, AS COMMISSIONERS OF THE CITY OF CHEYENNE, CONSTITUTING THE CITY COUNCIL OF THE CITY OF CHEYENNE, A MUNICIPAL CORPORATION, and S.D. MARKLEY, AS CITY CLERK OF THE CITY OF CHEYENNE, A MUNICIPAL CORPORATION, Defendants and Respondents

No. 2313

Supreme Court of Wyoming

April 16, 1945

APPEAL from District Court, Laramie County; V. J. TIDBALL, Judge.

Proceeding by the State of Wyoming, on the relation of Ida B. Schwartz against Bruce S. Jones, as Mayor of the city of Cheyenne, and others, for a writ of mandamus to compel defendants to issue to relator a liquor license. From an adverse judgment, the relator appeals.

Appeal dismissed.

For the plaintiff and appellant the cause was submitted on the brief and also oral argument of Thomas M. McKinney of Basin Wyoming, and Albert D. Walton of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Chapter 87, Session Laws of Wyoming, 1935, and the amending and re-enacting of Section 8 of aforesaid Act, governing alcoholic and malt liquors, by Chapter 90, Wyoming Session Laws, 1941, gives the City and Town councils certain powers to grant liquor licenses, and the renewal of them, and it prescribes certain duties on the part of those quasi bodies but no remedy is provided an applicant for a license, or a renewal thereof in case and event a license or renewal of license is refused. The alcoholic and malt liquors act supra, of this state giving City and Town Councils certain powers to grant a license, or a renewal thereof, prescribes certain duties on the part of those quasi bodies, but no remedy is provided in the law for the applicant. If the statute prescribing a duty provides no remedy mandamus will lie. 26 Cyc. par. 3, page 176.

The pressing of a petition for a writ of mandamus is not an action either at law or equity. It has to be used by appellant for the reason that the so-called alcoholic and malt liquors Act, supra provides appellant no remedy.

A petition in mandamus is sufficient if it makes out a prima facie case entitling the aggrieved party to the extraordinary aid of the court. Appel. Chairman of Board, Co. Comm'rs v. State ex rel. Chutter-Cottrel, 9 Wyo. 187.

There is a distinction between the issuing of a license for the first time, and the issuance of a renewal license because the application of the distinction is imperative. The alcoholic and malt liquors Act of 1935, supra, and as amended by Chapter 90, Wyoming Session Laws, 1941, and the last sentence of Section 8 of both, reads:

"Upon the expiration of any license, the owner thereof shall have a preference right to a new license if such license may be granted under this Act."

In view of the foregoing, the said City Council has a duty imposed upon it by law.

". . . where a clear and imperative duty is imposed by law upon a municipal council, mandamus will lie to compel its performance." 38 C. J. 695, Par. 288 B, and see the numerous citations under Note 53.

The City commissioners were required under the law to act in a ministerial capacity, and not as a quasi judicial body which involved the exercise of discretion on the part of said City Council, when acting upon the application of appellant for renewal of her liquor license. 38 C. J. pp. 597 and 598; 599, 600 c.; 15 R. C. L. 306; 34 Am. Jur., Sec. 184, Intoxicating Liquors.

Appellant should have a renewal of her license because of the preference right given to her. State ex rel. Huckfelt v. Board, 20 Wyo. 162, 122 P. 94; Mercer v. Thorley, 48 Wyo. 141, 43 P. 2d 692; Wyodak Chemical Co. v. Land Commissioners, 51 Wyo. 265, 65 P. 2d 1090. Likewise the case of Kerrigan v. Miller, Gov., et al., 53 Wyo. 441, 84 P.2d 724; Alfred Banzhaf and Harold Banzhaf v. The Swan Company, 149 P.2d 225.

For the defendants and respondents the cause was submitted on the brief and also oral argument of Carleton A. Lathrop of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS.

A retail liquor license under the Wyoming law is a personal privilege good for one year, and is not a property right or contract right. Section 1 & 3, Chapter 87, Session Laws of Wyoming, 1935.

The refusal to grant or renew a liquor license violates no one's vested right, but it merely deprives him of a privilege which it is in the discretion of the proper authorities to grant or withhold. 30 Am. Jur. "Intoxicating Liquors," Sections 122-123. Oval Bar & Restaurant v. Bruckman, et al., 30 N.Y.S.2d 394; Thacker v. Morris (Ga.) 26 S.E.2d 329.

A citizen has no inherent right to sell intoxicating liquors by retail. Such a business may be entirely prohibited, and even arbitrary power may be given to certain officials in the issuing of licenses for such a business.

Crowley v. Christensen, 34 L.Ed. 620, at Page 624; Schwartz v. Town of Gallup (N. Mex.) 165 P. 345, at Page 348; San Diego Cotton Club, Inc. v. State Board of Equalization, (Cal.) 34 P.2d 749; Cofman v. Ousterhouse (N. Dak.) 168 N.W. 826, 18 A. L. R. 219; Fry v. Rosen, (Ind.) 189 N.E. 375; State ex rel. Noble v. City of Cheyenne, 7 Wyo. 417.

Mandamus is a discretionary writ and will not be granted to coerce discretionary action vested in city, especially in case of issuance of liquor license.

State Ex Rel v. State Board of Land Commissioners, 7 Wyo. 478, 488; State Ex Rel. Van Patten, et al. v. L. N. Ellis, et al. 37 Wyo. 124, 134; State Ex Rel. Cross v. Board of Land Commissioners, 50 Wyo. 181, 191; McQuillan on Municipal Corporations (Second Edition) Revised Vol. 3, Page 703, Vol. 6, Page 878; 34 Am. Jur. Mandamus, Sec. 68 and Sec. 186; Chrystal Brook Farm Co. v. Control Commissioners of Derby (Vt.) 168 A. 912; Madsen v. Town of Oakland, et al. (Iowa) 257 N.W. 549.

The preference right of renewal given by the statute is not absolute but qualified. Wyodak Company v. Land Commissioners, 51 Wyo. 265, 273.

RINER, Justice. BLUME, C. J., and CHRISTMAS, District Judge, concur.

OPINION

RINER, Justice.

This cause is a direct appeal from a judgment of the District Court of Laramie County, sustaining a demurrer to an amended petition and, the plaintiff declining to further amend the pleading, adjudging that it "take nothing by said action and that defendants go hence without day" and recover their costs.

So far as necessary to understand the disposition of the case which we shall order the facts may be recited as follows:

The action was one asking for the issuance of a writ of mandamus by The State of Wyoming on the relation of Ida B. Schwartz, as plaintiff, said writ to be directed to the defendants who were respectively the Mayor, and the two Commissioners of the City of Cheyenne, constituting its City Council and the City Clerk of said city. Due to changes in the personnel of these officials substitution of parties defendant was moved in this court when the cause was heard and this was allowed.

Ida B. Schwartz will be mentioned herein as the "relator" and the city officials as the "defendants."

On or about February 21, 1944, relator made and filed in the office of the City Clerk of the City of Cheyenne, an application for a retail liquor license for the year beginning April 1, 1944. This application, together with a number of others of the same nature, came on for consideration before the City Council aforesaid at a regular meeting thereof on March 20, 1944, and was at that time rejected by said Council. A motion also prevailed in that body that a retail liquor license be not issued to the relator.

March 25, 1944, relator filed in the District Court of Laramie County, her "Petition For Writ Of Mandamus." The same day an order was made by that court setting down said petition for hearing at 10:00 a. m., March 29, 1944, in the district court room in the City of Cheyenne, and directing that a copy of said order be served upon the defendants. Two days later and on March 27, the relator filed her "Affidavit of Prejudice" against the presiding Judge of said court. March 29, the date set for the hearing, as before recited, the defendants filed a demurrer to said petition stating that the "allegations contained therein do not state facts sufficient to constitute a cause of action against said defendants or entitle relator to the relief prayed for therein."

April 3, 1944, another Judge sitting in the stead of the presiding Judge of the said District Court, a hearing was had upon the aforesaid petition and demurrer thereto, the demurrer was sustained and leave was granted plaintiff, upon request, to file an amended petition within ten days, the defendants being allowed ten days thereafter to further plead. April 13, 1944, a stipulation filed the following day was signed by counsel for all the parties that the plaintiff should have until and including the 14th day of April, 1944, in which to file an amended petition. On that day relator's amended petition was in fact filed.

The relief sought by the pleading last mentioned was that a peremptory writ of mandamus be issued commanding the defendants aforesaid as such city officials "to hold a meeting of the City Council of said city, forthwith, and allow the said application of Ida B. Schwartz for a retail liquor license at the place, and on the premises hereinabove described, for the year beginning on the 1st day of April 1944, and directing the Mayor of said city, and the City Clerk of said City, to issue and deliver said retail liquor license to the said Ida B. Schwartz, authorizing the said Ida B. Schwartz to conduct and carry on business as a retailer of intoxicating liquor on said premises described in this amended petition as 207 W. 16th Street, in the City of Cheyenne," or that an...