Watkins v. Grieser

• Decision Date: 05 September 1901
• Citation: Watkins v. Grieser, 66 P. 332, 11 Okla. 302, 1901 OK 65 (Okla. 1901)
• Parties: WATKINS v. GRIESER
• Court: Oklahoma Supreme Court

66 P. 332

11 Okla. 302, 1901 OK 65

WATKINS v. GRIESER

Supreme Court of Oklahoma

September 5, 1901

Syllabus by the Court.

1.Where a remonstrance is filed with the county clerk protesting against the issuance of a liquor license, the application and petition on the one side, and the remonstrance on the other, from an issue, which is to be heard and determined by the board of county commissioners in the first instance, and an issue of fact in such case can only he heard on competent evidence, under the rules governing civil trials in courts of law.

2.In the trial of an application for liquor license, where a remonstrance has been filed, the burden is on the applicant to prove by competent evidence all matters which it is, under the statute, incumbent on him to do or show in order to procure a license.Other causes set forth in the remonstrance, such as that the applicant has violated some provision of the liquor laws within a year, or that a previous license has been revoked, must be established by the remonstrants.

3.An averment in the protest or remonstrance, to the effect that the applicant is not a suitable person to be intrusted with the sale of intoxicating liquors, is, in the absence of a motion to make more specific and certain, sufficient to question the character and standing of the petitioner, and require proof of him to show that he is a person of respectable character and standing.

4.The character and standing of the applicant being a material fact to be shown in order to enable him to obtain license to retail liquors, specific acts of immorality or of criminality may be shown as matters proper for consideration in determining his character and standing.

5.Evidence tending to show that the applicant has previously violated some of the provisions of the statute relating to dealers in intoxicating liquors, though not sufficient to convict him of a criminal offense, is competent for the purpose of determining whether he is a fit person to be intrusted with the sale of intoxicants.

6.It is the purpose of the law to place the sale of intoxicants in the hands of law-abiding men of reputable standing and character.The privilege granted a retail dealer is in the nature of a personal trust, and an applicant who is unable to give his personal attention to the business does not come within the intent of the law.

7.The law does not limit the causes for which a protestant may demonstrate to those enumerated in the statute.There are other causes which, when properly alleged and proven, would be sufficient to defeat an applicant for license.

8.Considerable liberality should be allowed by the county board in stating reasons for remonstrance, and reasonable latitude given in the hearing, in order that the facts may be fully developed, and the intent and purpose of the law observed.

9.The law does not prescribe the qualifications or residence of protestants or remonstrants, but, as the statute is domestic in its application and purposes, any person who is a resident of the territory, or a nonresident who is a taxpayer in the ward or township where the applicant proposes to sell liquors, is competent to protest or demonstrate against the granting of a license.

10.On the hearing of a remonstrance against the granting of a liquor license, where it is alleged that the petition is not signed by a sufficient number of resident taxpayers, the county board are bound to hear the evidence, and cannot grant a license until it is made to appear by competent evidence that the requisite number of resident taxpayers have signed the petition.The burden is on the applicant to make such proof, and affidavits are not competent evidence on such issue.The fact must be established by record and oral testimony, so that the witness may be subjected to cross-examination, and his interest, motives, knowledge, and character fully inquired into.

11.The law contemplates that the applicant for license shall select the newspapers and give his notice, and make proof both as to publication of the notices and the circulation of the papers.The practice which now prevails of having the county clerks give the notices by publication is not authorized by the statute.When it is alleged in the remonstrance that the notices have not been published in the two papers published in the county and having the largest circulation therein, the burden is on the applicant to prove such fact, and no question of good or bad faith enters into the matter.He must make his own selection, publish his notices, and take the risks, and the county board has no jurisdiction to grant a license until such proof is furnished to the satisfaction of the board.

12.Where a license is granted over a protest and remonstrance and the remonstrant appeals to the district court within seasonable time, it is the duty of the county board to revoke the license pending the appeal, and, if they fail to do so after the appeal is perfected the district court should direct the board to annul the license.

13.The county board is peremptorily required to hear proof when a remonstrance is filed in time, and they have no power to ignore the remonstrance and grant the license without proof.

14.The statute of 1890, as amended by the statute of 1893 and the Session Laws of 1897, as a whole constitute the laws of the territory relating to the traffic in intoxicating liquor, and must be taken as a whole and construed together, and a violation of any of the provisions of said law within the space of a year will disqualify such person from obtaining license as a liquor dealer.

Error from district court, Garfield county; before Justice John L. McAtee.

Application by Julius Grieser for a license to sell liquors, to which H. H. Watkins filed a remonstrance.From a judgment of the district court affirming the action of the board of county commissioners in granting the license, Watkins brings error.Reversed.

W. S. Denton, for plaintiff in error.

Houstin James, for defendant in error.

BURFORD C.J.

The defendant in error, Julius Grieser, made application to the board of county commissioners of Garfield county for license to sell liquors at retail in the city of Enid.The plaintiff in error, H. H. Watkins, filed a remonstrance against the granting of such license, and the case was set for hearing before the county board.The remonstrance is as follows: "Comes now H. H. Watkins, and remonstrates and objects to the issuing of license to Julius Grieser to sell at retail vinous, spirituous, and malt liquors, as prayed for in the petition now on file in the clerk's office; and as grounds for such remonstrance and objection states: First.That the notice of said application was not published in two newspapers published in said county, having the largest circulation therein.Second.Said application fails to designate the place where the sale of the proposed liquors is to take place.Third.Because the applicant is not a suitable person to be intrusted with the sale of intoxicating liquors.Fourth.Because the petition is not signed by the requisite number of taxpayers of the ward where in the applicant desires to sell intoxicating liquors.Fifth.Because the notice of said application was not published as by law required.H. H. Watkins, Remonstrant."On the hearing of the cause before the board of county commissioners, the applicant offered no evidence except the petition and the affidavits of the publishers of the Enid Wave and Enid Eagle, showing that he had published the notice of his application in said newspapers for the required length of time, and the affidavits of 2 other persons to the effect that they had examined the tax rolls of the county, and that 30 of the signers to the petition were resident taxpayers of the ward in Enid where the applicant proposed to sell liquors.The remonstrant offered evidence to show that the petitioner had during the last year been operating a saloon at El Reno, Okl., and selling liquors without a license, and that he permitted gambling devices to be kept, and gambling carried on in the room where he sold liquor.This evidence was excluded by the board of commissioners, for the reason that the remonstrance did not charge that the petitioner had violated the liquor laws in the year last past.The remonstrant then asked leave to amend his remonstrance by adding one more ground, to wit, that the applicant had violated the liquor laws of the territory of Oklahoma, within one year, by selling intoxicating liquor without a license, and by permitting gambling to be carried on in the place where he kept liquors for sale.The board refused to allow the amendment, and ordered the license to issue.The remonstrant then appealed the case to the district court of Garfield county, and, upon the record as stated herein, the district court affirmed the action of the board of county commissioners, and directed the license to issue.Watkins now appeals to this court, and the proceedings had before the board ofcounty commissioners are before us for review.

It is expressly provided by statute that the remonstrance or protest shall be heard and determined by the county board and we held in Swan v. Wilderson,62 P. 422, that, "Where a remonstrance is duly filed, objecting to the issuance of a liquor license, the board of county commissioners is bound to hear the evidence and determine the issue presented by the petition and remonstrance."The proceedings provided by the statute contemplate a trial before the county board as in a civil cause, and the rules governing the introduction of evidence and the character and competency of evidence are, in case an issue is made by a protest or remonstrance, the same as in a civil cause.Either party is given the right of...