Talarico v. City of Davenport
Decision Date | 25 October 1932 |
Docket Number | 41634 |
Citation | 244 N.W. 750,215 Iowa 186 |
Parties | MIKE TALARICO. Appellant. v. CITY OF DAVENPORT et al., Appellees |
Court | Iowa Supreme Court |
Appeal from Scott District Court.--WILLIAM 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 the writ of mandamus. From the judgment thus entered, the plaintiff appeals.
Affirmed.
Glenn D. Kelly, for appellant.
John Witt and M. F. Donegan, for appellees.
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 were in force and effect, in the city of Davenport, ordinances providing as follows:
Connected with the foregoing section of the ordinance is Section I, which modifies it:
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 I, 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 I, 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 I, 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 I 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 facts.
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 I, Article VIII, 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.
As said in the beginning, however, the appellant in the district court did not raise the question that the ordinance was 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...
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