Talarico v. City of Davenport

• Decision Date: 25 October 1932
• Docket Number: No. 41634.,41634.
• Citation: 244 N.W. 750,215 Iowa 186
• Parties: TALARICO v. CITY OF DAVENPORT ET AL.
• Court: Iowa Supreme Court

215 Iowa 186

244 N.W. 750

TALARICO

v.CITY OF DAVENPORT ET AL.

No. 41634.

Supreme Court of Iowa.

Oct. 25, 1932.

Appeal from District Court, Scott County; Wm. W. Scott, Judge.

This was a proceeding by the plaintiff in mandamus to compel the defendants appellees, officers of the city of Davenport, to issue the former a license to conduct the business of selling near beer in that city. The cause was tried in equity, and the district court denied a writ of mandamus. From the judgment thus entered, the plaintiff appeals.

Affirmed.

Glenn D. Kelly, of Davenport, for appellant.

John Witt and M. F. Donegan, both of Davenport, for appellees.

KINDIG, J.

Davenport, Iowa, is a municipal corporation organized under a special charter. The defendants appellees, George Tank, Frank Hass, and Albert Schultze, are respectively the mayor, clerk, and chairman of the license committee of that city.

During the times herein material there was in force and effect, in the city of Davenport, ordinances providing as follows:

“Section 19: No person, firm or corporation shall by himself, clerk, agent, employee or servant, retail or sell by the drink for consumption on the premises, or adjacent thereto, in the City of Davenport, any lemonade, seltzer water, ginger ale, mineral water, small beer, cereal beverages or other beverages, not prohibited by law, nor sell at wholesale, nor deliver to others to sell at retail, any of said goods or beverages herein described, or keep open or maintain any place of public resort for the sale of any such beverages, unless such persons shall have first obtained a license therefor as herein provided. Provided, however, that nothing in this section shall be construed to prohibit the sale of pop or soda water or cereal beverages by the holder of a retailer's or grocer's license by authority of said license alone whether said pop or soda water or cereal beverages be sold for consumption on the premises or otherwise.

‘A.’ Any person wishing a license under this ordinance shall present to the city clerk an application in writing therefor, containing the name of the applicant, the location of the room, house or place of business where it is proposed to carry on such business, or orders are received for the purchase and delivery of such goods at wholesale. Each application shall be endorsed by the chairman of the committee on licenses of the city council, and be accompanied by the receipt of the treasurer of the city for the sum of ten dollars, on the presentation of which the city clerk shall issue to said person a license to sell at wholesale or retail and keep open a place of public resort for the sale of such beverages.

Such license shall entitle the person receiving the same to sell such beverages for one year, but all such licenses shall expire on the 31st day of March following the date of their issue.”

Connected with the foregoing section of the ordinance is section 1, which modifies it:

“Section 1. No license hereinafter provided for shall be assignable or transferable except with the consent of the city council. The mayor may at any time forbid the issuance of a license, or if one has been issued, may revoke the same, if, in his judgment, any business, auction sale, exhibition, entertainment, occupation, or show, conducted, or to be conducted under and by virtue of said license is or will be detrimental to public health or morals or liable to lead to the violation of any ordinance or law, or provoke a breach of the peace, or if any such licensee or any of his agents shall make any false or misleading statements or representations in the furtherance of the business conducted under said license or shall violate any ordinance or law in the conduct of the business for which such license is issued. * * *

If the mayor forbid the issuance of any license or if a license be revoked, he shall give the applicant or licensee, as the case may be, notice of his action and specify a time reasonably soon thereafter, for a hearing at which the applicant or licensee may show cause and be heard in behalf of the granting or continuance of said license.”

Mike Talarico, the plaintiff appellant, is a citizen of the United States and a resident of Davenport. As such, he, on the 4th day of June, 1932, made written application under the aforesaid ordinances of Davenport for a license to sell in that city a soft drink known as near beer. According to the admissions of the parties, the mayor, under the provisions of the ordinance set forth in the above-named section 1, notified the city clerk not to issue the appellant the desired license. Therefore the clerk refused to issue the same. When the mayor instructed the clerk not to issue the license, the former, as required by said section 1, gave the appellant, as such applicant, notice that he had forbidden the clerk to issue the license. On the same occasion and in the same notice, the mayor, in accordance with section 1, fixed the time when and place where the appellant might appear to show cause why such license should be granted him. But the appellant ignored the notice informing him of the place where, and time when, he could appear for such hearing, and immediately thereafter, to wit, on June 7, 1932, commenced the present action in mandamus to compel the appellees to issue the license for which application had been made. A resistance to the issuance of a temporary injunction was filed by the appellees. To this pleading the appellant replied. Later the appellees filed an answer to the appellant's petition, and again the appellant filed a reply.

Generally speaking, five issues are argued by the parties. They are: First, that the ordinance of Davenport providing for the license above mentioned is unconstitutional if the appellees have discretion to deny the license and prevent appellant from engaging in a legitimate business; second, that the mayor, in commanding the clerk not to issue the license, acted arbitrarily; third, that the ordinance is void because it placed in the mayor discretionary powers; fourth, that the ordinance is void for the reason that it delegated the power of the city council to the mayor; and, fifth, that section 1 of the ordinance is void because it conflicts with section 19 thereof.

These questions will now be considered in the following order.

I. Is the act constitutional under the record? The appellant asked for a license under the ordinance, but in the alternative argues that if the appellees have the discretion to deny the license, the ordinance deprives him of the right to engage in a lawful and legitimate business. This argument on appellant's part concerning the unconstitutionality of the ordinance was not raised in the district court. He did not there ask to have the ordinance declared unconstitutional, but rather affirmed the ordinance by asking that a license be issued to him thereunder.

As before indicated, Davenport was organized and now exists under a special charter. Its special charter provides: “That the city council shall have power * * * to license, tax, and regulate auctioneers, transient merchants, retailers, and grocers, taverns, ordinaries, hawkers, peddlers, brokers, pawnbrokers, and money-changers. * * *” While the appellant, in his petition, claimed to be engaged in the wholesale business, yet the case was tried on a stipulation of facts wherein the parties agreed that the foregoing portion of the city charter is applicable to the ordinances in question. Consequently, the parties by agreement have conceded that the plaintiff's business is one of the enterprises named in the charter. This being true, there is a basis in the charter, if constitutional, for the ordinance so far as it seeks to regulate the appellant's business, as defined in the agreed statement of the facts.

[1] At this juncture, it is important to understand that in Iowa there are cities under special charters, and cities not under special charters. Under section 1, article 8, of the Iowa Constitution, special charters can no longer be granted. That does not mean, however, that the charters of municipal corporations existing at the time the present Constitution was adopted were, by such adoption, made inapplicable, null, and void. Ulbrecht v. City of Keokuk, 124 Iowa, 1, 97 N. W. 1082;Lytle v. May, 49 Iowa, 224;Warren v. Henly, 31 Iowa, 31. So the city of Davenport may base its ordinances aforesaid, if they are otherwise constitutional, upon the authorization contained in its special charter. Hence, if the charter aforesaid is constitutional, it is not necessary for that city to look to the general laws relating to municipal corporations for the power to license the mercantile and other businesses named in the portions of the ordinances previously quoted. For, as before explained, the power to enact the ordinances, so far as the facts involved in this case are concerned, may be found in the charter if the same is constitutional under the issues raised in the case at bar. By so concluding, it is not determined or suggested whether the power to thus license does or does not exist under the general laws relating to municipalities. The power thus contained in the charter of Davenport was granted by the Legislature at a time in the constitutional history of this state, when the Legislature was privileged to confer special charters on municipalities.

[2] As said in the beginning, however, the appellant in the district court did not raise the question that the ordinance is unconstitutional if appellees have the discretion to deny him the license. Therefore we do not consider the hypothetical constitutional question. State ex rel. Seeburger v. Johnson, 204 Iowa, 150 (local citation 152)...