State ex rel. Sperling, v. McCook County, 9130

• Decision Date: 08 June 1950
• Docket Number: 9130
• Parties: STATE OF SOUTH DAKOTA, ex rel. SPERLING, Respondent, v. BOARD OF COUNTY COMMISSIONERS OF McCOOK COUNTY, SD, et al., Defendants, and Burnham, Appellant.
• Court: South Dakota Supreme Court

v. McCook County, 73 SD 361, 43 NW2d 232 (1950)

STATE OF SOUTH DAKOTA ex rel. SPERLING, Respondent v BOARD OF COUNTY COMMISSIONERS OF McCOOK COUNTY, SD, et al., Defendants and Burnham, Appellant. South Dakota Supreme Court Appeal from Circuit Court of McCook County, SD Hon. John T. Medin, Judge #9130—Reversed Louis H. Smith, Sioux Falls, SD Attorney for Appellant. Hitchcock, Nichol & Lassegard, Mitchell, SD Attorneys for Respondent. Opinion Filed Jun 8, 1950

RUDOLPH, Judge.

The question presented in this case is whether it was within the jurisdiction of the County Commissioners of McCook County to approve the application of appellant for a Class D nonintoxicating beer license. The Commissioners approved such application and the circuit court of McCook County determined that the Board exceeded its jurisdiction. The appeal to this court was then perfected.

The facts are without dispute. On May 21st, 1949, appellant applied to the County Commissioners of McCook County for a Class D license. On June 7th, 1949, the Board of County Commissioners refused to approve this application and endorsed thereon its reasons for such refusal. On July 5th, 1949, the appellant filed a new application for such Class D license with the Board of County Commissioners. On August 2nd, 1949, the board approved this second application and a license was issued to appellant by the Director of Licensing under the provisions of SDC 5.0305.

The single question presented is whether it was within the jurisdiction of the Board of County Commissioners to approve the second application after having rejected a prior application by appellant, the two applications being identical except as to date. The pertinent statutory provision is SDC 5.0305, which is as follows:

“Applications for Class C and Class D licenses. No Class C or D license shall be issued unless and until the application therefor shall be first submitted to the governing board of any incorporated municipality where the applicant proposes to operate or, in case the applicant proposes to operate outside of an incorporated municipality, to the board of county commissioners of the county where the applicant proposes to operate. Such board, to which such application is submitted, shall have discretion to approve or disapprove the application, depending on whether such board deems the applicant a suitable person to hold such license and whether such board considers the proposed location suitable. In the event of refusal to approve the application, such board shall indorse on the application the reasons therefor and return the application to the applicant, and no further action shall be taken thereon. In the event of approval of such application, such approval shall be indorsed thereon and the application forwarded to the Secretary, who shall thereupon issue the license applied for, unless good cause to the contrary appears.”

Respondent contends the statute denies the Board jurisdiction to consider the second application. The statute provides, “In the event of refusal to approve the application, such board shall indorse on the application the reasons therefor and return the application to the applicant, and no further action shall be taken thereon.” We have underlined the phrase upon which. respondent especially relies.

The question presented must be determined by a construction of the statute. Respondent concedes that unless the statute prohibits the filing of a second application the Board has jurisdiction to act thereon. See 48 CJS, Intoxicating Liquors, § 144. As we read the statute the only limitation placed upon the governing body with reference to acting upon applications is to take no further action upon an application that has been denied. We believe it would be a reasonable construction to hold that the words “and no further action shall be taken thereon” refer to action by the Director of Licensing whose duty it is to issue the license. However, we accept the construction that these words place a limitation upon the governing body in acting upon applications for licenses.

The trial court determined that within the meaning of the statute only one application was filed. The court in its memorandum opinion stated,

“I am therefore of the opinion that while the second application was a new application so far as the paper on which it was written was concerned, it was for the same identical purpose set out in the first application; namely, to obtain a Class D license for the year beginning June 30, 1949 and ending June 30, 1950, and that under the law the action on the second application constituted further action for the same purpose as the first application, and that therefore the County Commissioners of McCook County, South Dakota, had no authority to pass upon the second application ... .”

We cannot agree with the...