State Ox Rel. Miller v. City Of Spencer

Decision Date10 April 1923
Docket Number(No. 4863.)
PartiesSTATE ox rel. MILLER v. CITY OF SPENCER et al.
CourtWest Virginia Supreme Court

(Syllabus by the Court.)

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

Grover F. Hedges, of Spencer, for relator.

S. P. Bell, of Spencer, for respondents.

LITZ, J. 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 1, 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 the 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 ofpool 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 costs.

Relator admits his indictment, confession,...

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