State v. Ritter

• Decision Date: 09 August 1913
• Citation: 134 P. 492,74 Wash. 649
• Parties: STATE ex rel. MADDAUGH et al. v. RITTER, Mayor of City of Republic.
• Court: Washington Supreme Court

134 P. 492

74 Wash. 649

STATE ex rel. MADDAUGH et al. v. RITTER, Mayor of City of Republic.

Supreme Court of Washington

August 9, 1913

Department 1. Appeal from Superior Court, Ferry County; E. K Pendergast, Judge.

Mandamus by the State, on the relation of William Maddaugh and another, against J. E. Ritter, as Mayor of the City of Republic, to compel the signing of a warrant for a claim allowed by the council. From a judgment for respondent relators appeal. Reversed and remanded, with instructions to issue the writ.

Samuel Porter and Charles P. Bennett, both of Republic, for appellants.

Frank M. Allyn, of Republic, for respondent.

CHADWICK J.

The relators were granted a license to sell liquor in the town of Republic. After they had engaged in business for some time the license was transferred, with the formal consent of the city council, to one Foley. Foley was thereafter prosecuted and convicted of the crime of selling liquor without a license, the court evidently holding that the transferred license was void for the reason that relators were not citizens of the United States at the time it was issued. Section 6297, Rem. & Bal. Code. Thereupon the plaintiffs asked the city council to rebate or refund a part of the unearned license fee, the said Foley having relinquished his rights, if any, in favor of relators. The council allowed the claim to the extent of $225, and ordered a warrant drawn therefor. Respondent, who is mayor of the city, refused to sign the warrant whereupon relators petitioned the court for a writ of mandamus. A demurrer to the petition was sustained, relators refused to plead further, and this appeal is prosecuted from a judgment of dismissal.

There is something in the briefs suggesting the bad faith of the relators. We find nothing in the complaint, which is admitted to be true on demurrer, to warrant us in so holding or in discussing the case upon that theory. On the contrary, we are bound to hold upon the record before us that the relators, as well as the council have proceeded in the utmost good faith, and with no willful intent to violate the law. The licensees proceeded to do business until the license was held to be void by the court. Thereupon they ceased to do business. The holding that the license was void was not grounded upon any act of misconduct in the operation of the business, but solely because the relators were not citizens of the United States.

It is contended, under this state of facts, that relators cannot compel the signing of a warrant which has been drawn under a formal order of the council. Let us assume, in principle, it will be the same case; that after the licensees had operated for a part of the term, the city council had discovered that they were not qualified to hold a license, because they were not citizens of the United States, and had notified them to come in and surrender the license. Waiving the question of what the city can be compelled to do, can there be any question of what it should do? In the absence of a controlling statute the public should observe the same rules of conduct as it insists upon in the citizen when dealing with his fellows. The same obligation to do justice rests upon it as rests upon an individual. If the city can be estopped, and it can be in cases where it has original power to act ( Green v. Okanogan Co., 60 Wash. 309, 111 P. 226, 114 P. 457; Franklin Co. v. Carstens, 68 Wash. 176, 122 P. 999; Criswell v. Directors, etc., 34 Wash 420, 75 P. 984; Coliseum Inv. Co. v. King County, 131 P. 245), it can formally waive a legal right, where the claim is doubtful or in obedience to the demands of equity and justice. While the authorities are endless and in hopeless confusion upon the subject of rebate of liquor license taxes, the courts have generally, being otherwise free to act, applied the doctrine of justice and right as between man and man. Lydick v. Korner, 15 Neb. 500, 20 N.W. 26; Martel v. E. St. Louis, 94 Ill. 67; People v. Sackett, 15 A.D. 290, 44 N.Y.S. 593.

The council has power to audit and allow claims. It has an inherent power (28 Cyc. 1752) to compromise claims. 'The city by its legislative body has admitted the justice of that claim, and that it of right ought to be paid, though the relator for technical rather than substantial reasons, could not call it the same from the city by action. * * * Under this state of facts we think the board of legislation might legally pass an ordinance directing the payment thereof, * * * and make it obligatory upon the officers of the corporation to carry out its provisions.' State ex rel. Kessler v. Brown, 4 O. C. D. 345. 'It is in the power of towns to settle claims which may be made upon them arising out of their...