State v. Board of Com'rs of City of Las Vegas

• Decision Date: 08 July 1931
• Docket Number: 2943.
• Citation: 1 P.2d 570,53 Nev. 364
• Parties: STATE ex rel. GRIMES et al. v. BOARD OF COM'RS OF CITY OF LAS VEGAS et al.
• Court: Nevada Supreme Court

1 P.2d 570

53 Nev. 364

STATE ex rel. GRIMES et al. v. BOARD OF COM'RS OF CITY OF LAS VEGAS et al.

No. 2943.

Supreme Court of Nevada

July 8, 1931

Original proceedings in mandamus by the State, on the relation of Roy Grimes and others, against the Board of Commissioners of the City of Las Vegas and others.

Writ denied.

SANDERS J., dissenting.

Chas Lee Horsey, of Las Vegas, for petitioners.

F. A Stevens, City Atty., of Las Vegas, for respondents.

DUCKER J.

This is an original proceeding in mandamus wherein petitioners seek to have this court compel the respondents to grant them a gaming license to open, conduct, and carry on in the city of Las Vegas a gambling game known as craps. A demurrer was filed to the petition, which of course admits the well-pleaded facts. Among these facts are the following: On the 30th day of March 1931, the respondent board of city commissioners adopted an emergency ordinance to prohibit gaming and the operation of slot machines in the city of Las Vegas, without first obtaining a license therefor. This ordinance is designated as Ordinance No. 165, and contains seventeen sections.

Petitioners filed their application for said gambling license with the city clerk of the city of Las Vegas on the 7th day of April, 1931. On the same day and subsequent to the filing of petitioners' application the board laid over for future consideration the applications of one Ethel W. Genther and one C. H. Mackay for gambling licenses, and granted gambling licenses to the following named applicants: The Boulder Club, the Las Vegas Club, A. T. McCarter at the Exchange Club, and to Sticker and Morgan at the Northern Club, and adopted the following resolution: "Resolved: That this Board of City Commissioners of the City of Las Vegas not grant any gambling licenses except to those places of business that held gambling licenses in the previous quarter and that new licenses not be considered until a zone is established for the operation of gambling houses, and a policy is adopted by the Board governing the issuance of new licenses."

On the 17th day of April, 1931, the board adopted a resolution rejecting petitioners' application for a gambling or gaming license. In this resolution rejecting petitioners' application the following reason for such refusal is given, to wit: "For the reason that under Ordinance No. 165 of said City six gaming licenses (exclusive of licenses issued solely for the operation of slot machines) have already been issued in this city and upon careful consideration of the question we believe that public interest requires that no additional licenses (other than licenses solely for the operation of slot machines) and for additional games, at the location for which license is already granted, under the provisions of section 9 of said Ordinance No. 165, 'Any licensee holding a valid existing license from the City of Las Vegas, and from the County of Clark, State of Nevada, for a current quarter may, during such current quarter, secure a license for additional slot machines, games or devices, as the case may be, over and above the particular number of slot machines, games or devices for which, he, they or it holds a license, for the remainder of the quarter by paying to the City Clerk the license fee above provided, for the additional particular slot machine, game or device, as the case may be, and for which the City Clerk shall issue an additional license for the remainder of such quarter, and the additional license shall be upon the same terms and conditions as though issued under the provisions of section 8 of this Ordinance,' be granted in this city in excess of the number already granted, until the further order of this Board and until further or other gaming licenses (other than licenses solely for the operation of slot machines) are reasonably necessary for the accommodation of the public and the granting of such further or other licenses will not contravene public interest and will not require an excessive amount of police protection for a city the size of Las Vegas, Nevada, having in mind the funds provided for police protection under the City's 1931 and 1932 Budgets heretofore adopted, and the state of the City funds applicable to police protection."

Section 7 of Ordinance No. 165 provides as follows: "The Board of City Commissioners, in the exercise of their discretion, may refuse to grant or renew the license provided for in this Ordinance, to any person, firm, association or corporation, and may also revoke any license granted hereunder, if in their judgment or discretion it should appear to them that the licensee is not a proper person, firm, association, or corporation to carry on or conduct the slot machine, device and/or game for which the license is granted, or that such slot machine, device and/or game is not being properly or fairly conducted. Upon such revocation the City of Las Vegas shall be entitled to retain the license fee theretofore paid for such license."

It is alleged that petitioners have no right of appeal from the action of the board, or any other plain, speedy, or adequate remedy at law. It is further alleged that petitioners possess all of the qualifications prescribed by law or by any ordinance of said city of Las Vegas for gambling or gaming licenses, and the refusal to grant them a license was arbitrary and unlawful. The same contention was made by petitioner in his oral argument and in his memorandum thereof filed herein.

The argument is this: That, inasmuch as the 1931 Gambling Act prescribes no qualifications other than that the applicant must be a citizen of the United States, the council is powerless to prescribe additional qualifications, but must on proper application grant a license to any such, or, if they have any discretion, must exercise it through some prescribed standard general in its nature, which will apply equally to all; that otherwise the issuance of a license would rest within the power of the council to grant or refuse at their mere whim or caprice and therefore amount to a discrimination unlawful under the Constitution.

It is argued that section 7 of the Ordinance is void for the reason that it gives the council the power to discriminate in the matter of issuing licenses.

The contention that the discretion to grant or withhold a license must be exercised through some prescribed uniform rule of action finds support in the leading case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, and a number of state decisions accepting the doctrine there announced. It is to be noted that the case of Yick Wo and those adhering to its doctrine were dealing with some useful business or calling in which a property right or vested interest could be acquired. Even among such exceptions to the establishment of some uniform rule of action have been recognized, as in cases where it was difficult or impracticable to lay down a definite comprehensive rule, St. Louis Consolidated Coal Co. v. Illinois, 185 U.S. 203, 22 S.Ct. 616, 46 L.Ed. 872; Ex parte Whitley, 144 Cal. 167, 77 P. 879, 1 Ann. Cas. 13, or where the determination of personal fitness was involved, State ex rel. Minces v. Schoenig, 72 Minn. 528, 75 N.W. 711.

But it has been held that, for the carrying on of a business of a character regarded as tending to be injurious, such as dealing in intoxicating liquor, a wide discretion may be given to licensing officers to grant or withhold a license without prescribing definite and uniform rules of action. State ex rel. Crumpton v. Montgomery et al., 177 Ala. 212, 59 So. 294; Perry v. City Council, 7 Utah, 143, 25 P. 739, 740, 998, 11 L. R. A. 446; In re Jugenheimer, 81 Neb. 836, 116 N.W. 966, 969, 18 L. R. A. (N. S.) 386.

We think the distinction drawn between a business of the latter character and useful trades, occupations, or businesses is substantial and necessary for the proper exercise of the police power of the state. Gaming as a calling or business is in the same class as the selling of intoxicating liquors in respect to deleterious tendency. The state may regulate or suppress it without interfering with any of those inherent rights of citizenship which it is the object of government to protect and secure. 12 R. C. L. 709.

The Legislature of 1931, by an Act approved March 19, 1931, has sanctioned divers forms of gambling under license. Stats. 1931, p. 165 et seq. The only qualification prescribed by the statute is that the applicant for a license must be a citizen of the United States. Section 1.

The Legislature has, however, by amendment enacted subsequently to the passage of the 1931 Gambling Act, to wit, on March 27 1931, clothed the board of commissioners of the city of Las Vegas with power in the premises. Stats. 1931, pp. 374, 381, 382. In section 10 of the amendment appear the following delegations of power to the board of commissioners: "To fix, impose and collect a license tax on all *** games and gaming houses; to license and regulate gambling as allowed by law and to prohibit gambling in all its various forms." That the board of commissioners has power under this amendment to regulate gambling in the city of Las Vegas, and has power, notwithstanding the Legislature has legalized gambling, to absolutely prohibit it within the city limits, or prohibit it in part by zoning, cannot be denied. The power to restrict the number of licenses in the city is we think a very necessary implication from the power to license and regulate gambling. This discretion is derived from the police power of the state. It is necessarily incidental to the delegated power to license and regulate. On account of the nature of the business of gambling, which is capable of being so conducted as to be a source of evil, a very wide...