Van De Vegt v. Board of Com'rs of Larimer County

• Decision Date: 03 February 1936
• Docket Number: 13818.
• Citation: 55 P.2d 703,98 Colo. 161
• Parties: VAN DE VEGT v. BOARD OF COM'RS OF LARIMER COUNTY.
• Court: Colorado Supreme Court

55 P.2d 703

98 Colo. 161

VAN DE VEGT v. BOARD OF COM'RS OF LARIMER COUNTY.

No. 13818.

Supreme Court of Colorado, En Banc.

February 3, 1936

Dissenting Opinion March 19, 1936.

Error to Larimer County Court; Albert P. Fischer, Judge.

Mandamus proceeding by Henry R. Van de Vegt against the Board of County Commissioners of Larimer County, to compel the board to issue a liquor license for a drugstore. The writ was denied, and petitioner brings error.

Affirmed.

BOUCK BUTLER, and HOLLAND, JJ., dissenting.

Fancher Sarchet, of Fort Collins, for plaintiff in error.

Herbert M. Baker, Dist. Atty., of Longmont, and Winton M. Ault, Co. Atty., of Fort Collins, for defendant in error.

YOUNG Justice.

This case is one in which the petitioner, Van De Vegt, sought to procure from the county court of Larimer county a writ of mandamus to compel the board of county commissioners of the county to issue a liquor license permitting him to sell liquor in his drugstore situated 700 feet south of the southern city limits of Fort Collins on the Fort Collins-Loveland highway. To reverse the judgment of the county court denying the writ he brings the cause here on error. All italics used in this opinion are ours unless otherwise indicated.

The sections of the Liquor Code of 1935, being chapter 142 of the Session Laws of 1935 (page 597), pertinent to our consideration of the matters here involved, are as follows:

'Section 1. This Act shall be deemed an exercise of the police powers of the State for the protection of the economic and social welfare, the health and peace and morals of the people of this State, but no provisions of this law shall ever be construed so as to authorize the establishment or maintenance of any saloon.

'Section 2. On and after the effective date of this Act, it shall be lawful to manufacture and sell for beverage or medicinal purposes malt, vinous or spirituous liquors, subject to the terms, conditions, limitations and restrictions contained in this Act.

'Section 3. It shall be unlawful for any person: '(a) To manufacture, sell or possess for sale any malt, vinous or spirituous liquors, excepting in compliance with this Act.'

'Section 8. * * * (b) Upon written demand by an applicant who has been refused a state license said Licensing Authority shall state in writing its reasons for such refusal. The refusal of said Licensing Authority to grant a State license according to the provisions of this Act may be reviewed upon application for writ of certiorari or otherwise, by any court of general jurisdiction having jurisdiction of the place for which the application for license was made, and if such court shall determine that such action was capricious or arbitrary it shall order said State Licensing Authority to issue such license. * * *

'Section 9. The licenses provided by this Act, except where the license fee is to be paid into the treasury of any city, town, city and county or county, shall be issued and granted by the State Licensing Authority, for which the fee is to be paid to the State Treasurer, within fifteen days after the filing of the application therefor. Where the license fee is to be paid into the Treasury of any city, town or city and county, the licenses in this Act provided for shall be issued by the council in a city and county and by the council, board of trustees or licensing authority in any other city or town, where the license fee is to be paid into the treasury of a county, the licenses provided for in this Act shall be issued by the Board of County Commissioners of such county. The council of a city and county and boards of trustees, councils or licensing authorities in any other city or town and the Board of County Commissioners in any county shall have authority to refuse to issue any licenses provided for in this Act for good cause, subject to review by the courts as hereinBefore provided.

'Before granting any license all licensing authorities shall consider the reasonable requirements of the neighborhood, the desires of the inhabitants as evidenced by petitions, remonstrances or otherwise and all other reasonable restrictions which are or may be placed upon the new district or districts by the council of the city, town, city and county or county or by the Board of County Commissioners of any county.'

'Section 18-A. Liquor Licensed Drug Store License. Liquor licensed drug stores as defined in this Act shall be licensed only to sell malt, vinous and spirituous liquors in seal [sealed] containers not to be consumed at the place where sold.

'Every person selling malt, vinous and spirituous liquors in a liquor licensed drug store shall pay to the State Treasurer a license fee of Fifty Dollars ($50.00) annually in advance for each place where such liquor shall be sold.

'In addition to paying the State license fee herein provided to be paid, every liquor licensed drug store shall pay the following fee to the Treasurer of the city, town, city and county, or county where said liquor licensed drug store is located.

'(a) If said liquor licensed drug store is within any city, town or city and county, an annual license fee of One Hundred Fifty Dollars ($150.00) in advance.

'(b) If said liquor licensed drug store is outside the corporate limits of any town, city or city and county, an annual license fee of Two Hundred Fifty Dollars ($250.00) in advance.'

Section 27 of the act provides for local option and that the operation of the act shall be state-wide unless any city, city and county, or incorporated town shall, by a majority of the qualified electors at a general election, or special election called for that purpose, decide against the right to sell liquor or shall limit its sale in such political subdivision as by the act provided.

Such discretion, if any, as is vested in the commissioners with reference to issuing licenses, is found in section 9, supra. The respondent board claims there is a discretion to issue, or refuse to issue, vested in it by said section 9. Petitioner says: 'The license issued by a town or city is a mere incident to the payment of the required fee. Such a license is more in the nature of a receipt for the money.' We cannot agree with the latter contention. The section provides that 'The Board of County Commissioners in any county shall have authority to refuse to issue any licenses provided for in this Act for good cause, subject to review by the courts as hereinBefore provided.' The right to refuse for good cause of necessity vests in it in the first instance the right to determine what is good cause for refusal. The board's disposition of the matter then is subject to review by the courts as provided in section 8(b) supra, to ascertain whether its 'action was capricious or arbitrary.' If the court finds such to be the case, then and then only shall it override the action of the board and order the issuance of the license. This provision of the act is in harmony with the well-recognized rule that resort may be had to mandamus to compel the exercise of authority or discretion vested in an administrative body or board, but courts cannot control or direct how such authority or discretion shall be exercised unless it clearly appears that its action has been capricious or arbitrary. 'Mandamus will not lie to compel the granting of a license where it is not alleged and shown that the exercise of such discretion was arbitrary.' Downes v. McClellan, 72 Colo. 204, 205, 210 P. 397, 398.

Capricious or arbitrary exercise of discretion by an administrative board can arise in only three ways, namely: (a) By neglecting or refusing to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it. (b) By failing to give candid and honest consideration of the evidence Before it on which it is authorized to act in exercising its discretion. (c) By exercising its discretion in such manner after a consideration of evidence Before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly considering the evidence must reach contrary conclusions. 'The intendment of a law which grants discretionary power to licensing officers, whether expressly or by necessary implication, is that the discretionary decision shall be the outcome of examination and consideration; in other words, that it shall constitute a discharge of official duty, and not a mere expression of personal will.' 19 R.C.L. 968, § 265.

In determining whether the action here in question was capricious or arbitrary in any one of the foregoing respects, it is necessary to consider the manner in which the controversy arose, the evidence Before the board, and its action based thereon. There is no contention that the board refused to receive evidence pertinent to the matter under consideration. The evidence on which it acted is Before us in the form of admissions in the pleadings and stipulations between the parties. It is definite and certain. There is no assertion that it was not given fair and honest consideration. The contention is that upon the evidence Before it, and after due consideration, the board reached conclusions therefrom upon which it refused petitioner a license, when reasonable men from a fair and honest consideration of the evidence must have arrived at a contrary conclusion and granted a license accordingly.

The evidence Before the board was substantially as follows: That plaintiff, on May 11, 1935, applied for a license to operate a liquor drugstore; that the locus of the proposed liquor dispensary is 700 feet south of the southern boundary of Fort Collins on the main highway to Loveland; that the city of Fort Collins and territory...