Thielen v. Kostelecky

Decision Date29 August 1939
Docket NumberNo. 6599.,6599.
PartiesTHIELEN v. KOSTELECKY et al., City Commission.
CourtNorth Dakota Supreme Court


Syllabus by the Court.

1. The power to regulate a business implies authority to prescribe reasonable rules and regulations and conditions upon which such business may be conducted or permitted.

2. The power “to regulate the retail sale of alcohol and alcoholic beverages,” which

the Liquor Control Act, Ch. 259, Laws 1937, confers upon the governing body of a City, vests authority in such governing body to prescribe reasonable rules concerning the premises where a retail liquor store is to be operated, and such body may refuse to issue a license where the premises described in the application for the license does not comply with, and falls below, the prescribed standard.

3. The power “to regulate the retail sale of alcohol and alcoholic beverages,” which the Liquor Control Act confers upon the governing body of a City, vests such governing body with power to fix, by ordinance, a reasonable limit on the number of retail liquor licenses to be issued, and thus limit the number of retail liquor stores that may be operated in the City at any one time.

Appeal from District Court, Stark County; Harvey J. Miller, Judge.

Mandamus proceeding by J. A. Thielen against William Kostelecky and others, as members of the City Commission of the City of Dickinson, Stark County, N.D., to compel the defendants to issue to the plaintiff a license to engage in business in the City of Dickinson as a retailer of alcohol and alcoholic beverages. From a judgment in favor of the plaintiff, the defendants appeal.

Reversed, and proceeding ordered dismissed.

J. W. Sturgeon, of Dickinson, and C. L. Foster, of Bismarck, for appellants.

Murtha & Murtha, of Dickinson, for respondent.


The plaintiff instituted this mandamus proceeding in the District Court of Stark County to compel the City Commission of the City of Dickinson to issue to him a license to engage in business in the City of Dickinson as a retailer of alcohol and alcoholic beverages (as defined by Chapter 259, Laws 1937). After hearing, the trial court ordered that a peremptory writ of mandamus issue, directed to the defendants and ordering them to forthwith issue a license to the plaintiff. The defendants have appealed to this Court from the decision of the District Court.

The facts necessary to an understanding of the issues presented on this appeal are substantially as follows:

The Liquor Control Act of this State, Ch. 259, Laws 1937, defines alcohol and alcoholic beverages to “mean and include any alcoholic, spirituous, vinous, fermented, malted, or other liquor which contains more than four percentum (4%) of alcohol by weight.” Idem Sec. 2. It provides that:

“Any person having a legal and bona fide residence in, and being a citizen of the State of North Dakota, may engage in the wholesale or retail sale of alcohol and alcoholic beverages in the manner and pursuant to the regulations and restrictions contained in this Act. Provided, that no person shall hold a wholesale and a retail license at the same time.” Idem Sec. 4.

“Any person engaging in the retail sale of alcohol and alcoholic beverages as herein defined must first procure from the governing body of the City or Village, wherein the said business is to be conducted, a license, the fee therefor to be not less than Two Hundred ($200.00) Dollars, or more than One Thousand ($1,000.00) Dollars, to be determined by the governing body of such City or Village; and any person desiring to engage in the retail sale of alcohol and alcoholic beverages at a place other than in the incorporated limits of a City or Village must first procure a license from the County Commissioners at [of] the County in which such business is to be conducted, which license fee shall not be less than Two Hundred ($200.00) or more than One Thousand ($1,000.00) Dollars, to be determined by the said Board of County Commissioners; provided that the fee for such license shall be the same to each individual within each of the said political sub-divisions respectively; provided further that such license shall not be transferable, except to the executors or administrators of a deceased license holder.

It is further provided that such retail license shall not permit the sale at any one time to any person of an amount greater than five wine gallons.” Idem Sec. 5.

The Act prescribes a tax on alcohol and alcoholic beverages, establishes the mode of collection of such tax and provides for the distribution of the proceeds of such tax. Idem Sections 7, 8, 9. It also prescribes a penalty for the violation of the provisions of the Act. Idem Sec. 14.

Section 12 of the Act provides: “There is hereby conferred upon the governing bodies of Cities and Villages, and * * the Board of County Commissioners, within their respective jurisdictions, the authority to revoke licenses for cause, and to regulate the retail sale of alcohol and alcoholic beverages, subject to review by the Courts of this State.”

After the Liquor Control Act had become effective, the City Commission of the City of Dickinson adopted an ordinance which, in part, provided as follows:

Section 675. (4) Licenses provided for herein shall be denied to any applicant who has not fully complied with the provisions of this Chapter or, in the discretion of the Board of City Commissioners, to any person of questionable moral character, or for any other cause which would, in the opinion of said Board, render applicant or the premises to be licensed improper or unfit, or which would in said Board's opinion, make the granting of such license contrary to the best interests of the City of Dickinson and its citizens.”

Section 724. Limitation of Licenses. The Board of City Commissioners, having made a study of and investigated the number of commercial licenses heretofore issued for the sale of beer and intoxicating liquor, and having duly considered the question of the enforcement of Chapters 27 and 28 and the laws of the State relative to the sale of beer and intoxicating liquor, in its judgment and discretion determines that there shall not be granted more than ten (10) licenses for the sale of beer and intoxicating liquor. Licenses issued for the sale of beer only or intoxicating liquor only shall be considered in arriving at the number of licenses to be issued and in no event shall the same, or combination thereof, exceed ten (10) licenses.”

Section 725. Number of Licenses, How Determined. Licenses may be granted to any of the persons, firms or corporations holding a license to engage in the business defined herein at the time this Chapter takes effect, but when, and if, any license in existence at said time is cancelled or revoked for any of the reasons set out in Chapters 27 or 28 or other ordinances of the City or laws of the State, no new license shall be issued to such person, firm or corporation or for such premises to any person, firm or corporation, until the number of valid existing licenses does not exceed nine (9), and then and in that event, a further license may be granted, and no further or other licenses shall be granted pursuant to the provisions of Chapter 27 or 28 until there has been a further reduction in the number of existing licenses, as provided for in this Chapter.”

The plaintiff, Thielen, applied to the City Commission of Dickinson for a retail liquor dealer's license. The premises described in the application, where the retail liquor business was to be conducted, consists of a portion of a building fronting upon an alley and the only entrance to the proposed place of business is a door opening upon the alley. There are no other doors in the proposed place of business at all. The alley is eighteen feet wide. On the north side of the alley, across from the door of the proposed place of business, there is located a telephone or electric power transmission pole, and on the south side of the alley, and in front of the premises where the proposed retail liquor business is proposed to be carried on, there is another telephone or electric power transmission...

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