Sullivan v. Board of Com'rs of Lemhi County

• Decision Date: 24 June 1912
• Citation: 22 Idaho 202,125 P. 191
• Parties: JOHN SULLIVAN, Respondent, v. THE BOARD OF COMMISSIONERS OF LEMHI COUNTY, Appellant
• Court: Idaho Supreme Court

125 P. 191

22 Idaho 202

JOHN SULLIVAN, Respondent, v. THE BOARD OF COMMISSIONERS OF LEMHI COUNTY, Appellant

Supreme Court of Idaho

June 24, 1912

LICENSE TO SELL INTOXICATING LIQUORS-DISCRETION OF BOARD-HEARING ON APPEAL-JURISDICTION ON APPEAL.

(Syllabus by the court.)

1. Under the provisions of sec. 1508, Rev. Codes, where an application is made for a license to sell intoxicating liquors at a place outside of an incorporated city, it is made the duty of the board of county commissioners to make the following investigations: First, "to determine whether or not the granting of such license would be conducive to the best interests of the community in which such saloon or business is proposed to be established" second, to determine whether or not such applicant is a fit person to have such license and to carry on such business; and, third, to determine whether or not such place of sale and business would likely be conducted in a quiet, orderly and peaceable manner; and if the board finds in the negative on any one of these questions, it is made the positive duty of such board to deny the application.

2. Upon an appeal from an order of the board of county commissioners granting or refusing to grant a liquor license under the provisions of sec. 1508, Rev. Codes, the district court has jurisdiction to review any question involving the legality of the action of the board in passing on the application and any question of law which may have been involved in the application and action taken thereon by such board; but the court has no jurisdiction or authority to examine or review the facts upon which the board exercised its discretion in determining any one of the three questions which sec. 1508 requires the board to investigate and determine before granting or refusing such application. These questions involve the discretionary power of the board and that discretion is not conferred upon the courts.

APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. James M. Stevens, Judge.

Appeal from the order of the board of county commissioners refusing to grant a liquor license. From the judgment of the district court reversing the action of the board of commissioners, an appeal is prosecuted to this court. Judgment reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant.

D. C McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, Assistants to the Attorney General, for Appellant.

The late case of Darby v. Pence, 17 Idaho 697, 107 P. 484, 27 L. R. A., N. S., 1194, is in point in this matter. That case tested the discretion of the council of Boise City to grant or refuse a liquor license, and the power and jurisdiction of a court to review such discretion. That case holds that the discretion is with the city council, and such discretion is not reviewable by the courts.

We also call attention to the case of Perkins v. Loux, 14 Idaho 607, 95 P. 694, which is directly in point in the same matter and which reviews a number of late cases on this subject.

F. J. Cowen, for Respondent.

Sec. 1953, with reference to appeals from the orders of the board of commissioners generally, provides that:

"Upon the appeal, the matter must be heard anew and the act, order or proceeding so appealed from may be affirmed, reversed or modified."

"'Heard anew,' as used in this statute, means that the cause shall be retried in the district court as though originally brought in said court, and the case must be proven in the same way, and the burden of proof rests with the same party as before the board of commissioners. It is a retrial of the matter tried before the board of commissioners." (Gardner v. Blaine County, 15 Idaho 698, 99 P. 826; Latah County v. Hasfurther, 12 Idaho 797, 88 P. 433; Mahoney v. Board of Commrs., 8 Idaho 375, 69 P. 108; Clyne v. Bingham County, 7 Idaho 76, 60 P. 76; Campbell v. Board of Commrs., 5 Idaho 53, 46 P. 1022; Fisher v. Board, 4 Idaho 381, 39 P. 552.)

In the absence of the evidence the findings of fact cannot be reviewed upon appeal or their correctness questioned. (Brossard v. Morgan, 7 Idaho 215, 61 P. 1031.)

The district court did not abuse its discretion, but the board of commissioners did abuse theirs. (Ex parte Levy, 43 Ark. 42, 51 Am. Rep. 550; State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L. R. A. 70, 2 Ann. Cas. 92.)

The board must treat all alike where they are authorized to license. (Sarlo v. Pulaski Co., 76 Ark. 336, 88 S.W. 953.)

Neither the legislature nor a municipality has the power to discriminate between citizens of the same class in the granting of a license. (1 Woolen & Thornton, Intox. Liquors, sec. 130; Cairo v. Feuchter Bros., 54 Ill.App. 112; affirmed, 159 Ill. 155, 42 N.E. 308.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This appeal involves the action of the board of county commissioners of Lemhi county in rejecting the application of John Sullivan for a license to sell intoxicating liquors at retail in Leadore in Junction precinct, Lemhi county.

The respondent, Sullivan, made application in due and regular form and paid his license fee and executed the proper undertaking. The board of commissioners acted on the application and denied the same "for the reason that the granting of such license would not be conducive to the best interests of the community." The applicant thereupon appealed from the action of the board to the district court. The matter came on regularly for hearing in the district court, and no appearance was made on behalf of the board of commissioners. There seems to have been no evidence taken in the matter whatever. The court, however, in his findings recites that "the court proceeded to hear the evidence submitted in the said matter from which it appears," etc. The court reporter, however, who was directed by an order of the district court to make a transcript of the evidence, certifies under oath "that she was present at Salmon, Idaho, at the regular April, 1912, term of the district court in and for the county of Lemhi, state of Idaho, and at such term of court acted as such reporter; that no evidence was adduced and no notes taken in the above-entitled cause, and for this reason can make no transcript." No evidence whatever is reported in the record. This, however, is of no consequence as we view the matter.

This case differs from the case of Anderson v. Board of Commissioners, ante, p. 190, 125 P. 188, in that the Anderson case was an application for a license to sell intoxicating liquors within the boundaries of an incorporated city. In this case the place at which the sale is to be made is an unincorporated town or village. This case therefore falls within the terms of the proviso to sec. 1508, considered and discussed by this court in the Anderson case. It was therefore the duty of the board of commissioners, under the terms of the proviso to sec. 1508, to make the following investigations: First, to "determine whether or not the granting of such license would be conducive to the best interests of the community in which such saloon or business was proposed to be established"; second, to determine "whether or not such applicant was a fit person to have such license and to carry on such business"; and, third, to determine "whether or not such place of sale and business would likely be conducted in a quiet, orderly and peaceable manner." It is made the positive duty of the board of county commissioners to refuse to grant the license "should said board of county commissioners determine adversely to the applicant upon any grounds above specified." It does not appear from the record that the board of commissioners investigated and determined any of the above specified grounds, except the first, but they evidently made an examination on that because they reached the determination and conclusion "that the granting of such license would not be conducive to the best interests of the community." Upon the appeal the district court makes a finding as follows: "That the said board of commissioners have granted the applications of two other persons for the sale of intoxicating liquors in the said precinct, and that it would be conducive to the best interests of said community that the said John Sullivan be granted such license."

Sec 1508, Rev. Codes, closes with the following clause:...