Whitesides v. Council of City of Cheyenne

Decision Date17 December 1957
Docket NumberNo. 2800,2800
Citation319 P.2d 520,78 Wyo. 80
PartiesR. L. WHITESIDES, Petitioner and Appellant, v. COUNCIL OF CITY OF CHEYENNE, Wyoming; V. S. Christensen, Mayor; A. W. (Art) Trout, Sr., Commissioner, and Worth Story, Commissioner, Respondents and Appellees.
CourtWyoming Supreme Court

J. J. Hickey of Ellery, Gray & Hickey, Cheyenne, for appellant.

Bard Ferrall and Philip White, Cheyenne, for respondents.


Chief Justice BLUME delivered the opinion of the court.

It appears herein that R. L. Whitesides for a number of years had a liquor license for the Frontier Hotel at Cheyenne, Wyoming. On February 15, 1957, he applied for a liquor license in the ordinary form but marked it 'Retail Liquor License and renewal thereof at new location', and made application that the new liquor license be granted for 2015 East Lincoln Highway, Lot 3, Block 6, in the Lake Minnehaha Addition to the City of Cheyenne, Wyoming. He also at the same time presented an agreement with Ernest P. Edgar and wife granting Whitesides an option to use the premises for the full time of the license. Notice of the application was advertised as provided by § 53-205, W.C.S.1945, and, according to the advertisement, the hearing on the application was held in the council chamber of the City of Cheyenne on March 18, 1957.

There is before us in the record the certificate by the city clerk showing what took place at the hearing above-mentioned. That certificate is in part as follows:

'* * * Mayor Christensen addressed the large group present relative to the issuance of Liquor License applications presented by Mr. R. L. Whitesides, 2015 East Lincoln Highway and Cheyenne Taverns Company, Inc., 1903 Central Avenue. Many protests and objections were voiced by several interested persons present, against the issuance of any additional Liquor Licenses; Rev. Frank W. Garber, Pastor of the Cheyenne Brethren Church; Rey. Clinton A. Rock, Jr., Pastor of the Grace Church of the Nazarene, presented petition with some 250 signatures opposing issuance of Liquor License for 2015 East Lincoln Highway; Rev. J. S. Stevenson, Pastor Grace Methodist Church; Mrs. M. J. Woods, 601 East 9th Street, Mrs. Mary Bartlett, 1814 Central Avenue and Mr. E. W. Kees, 522 West 25th Street.

'Mr. J. J. Hickey, Attorney representing Mr. R. L. Whitesides, addressed the Council in behalf of Liquor License application for Mr. Whitesides at 2015 East Lincoln Highway and presented waiver of objections from residents in that vicinity.

'Mayor Christensen again addressed those present briefly. There being no protests entered at said hearing, or at all, against the renewal of any of the other Liquor Licenses, it was moved by Mayor Christensen and seconded by Commissioner Story that each and every application be approved, with the exception of Mr. R. L. Whitesides, 2015 East Lincoln Highway and Cheyenne Taverns Company, Inc., for 1903 Central Avenue which were unanimously denied by the Council; * * *'

We also have before us a certificate by Shirley A. Johnson, shorthand reporter, as to part of the proceedings, which shows that an address was made by the mayor stating that he was in favor of liquor licenses being issued to any one who would pay $1500 for the license. It also appears that Mayor Christensen stated as follows:

'We are willing to listen to any complaints, so if anyone wants to speak, we are certainly willing to listen to them. If there isn't any further discussion, I'd like to make a motion that these licenses be approved with the exception of R. L. Whitesides, and that, I believe, should be a transfer. We are not in favor of transferring that license at this time.'

There is further attached to the record before us a statement on the part of some seven persons or firms stating that they waive any objection to the issuance of a license to R. L. Whitesides at 2015 East Lincoln Highway. The objections by some 250 citizens is also attached to the record, stating in substance as follows:

'As we feel that the plea of Mr. R. L. Whitesides of the Frontier Hotel for a transfer of liquor license to 2015 E. Lincolnway will be a detreminite (sic) to our community. We the undersigned are strenuously opposed to such action.'

After the denial of the liquor license by the city council of Cheyenne, an appeal was taken by R. L. Whitesides to the District Court of Laramie County, Wyoming. When the matter came up for hearing before the Honorable G. A. Layman, the judge presiding, a motion was made on behalf of the council to dismiss the appeal. That motion was granted and an appeal has been taken to this court.

R. L. Whitesides will hereafter be designated as the applicant or appellant herein.

Counsel for the applicant states in his brief that the questions presented in this case are as follows:

'1. Is there a right of appeal to the District Court where the renewal is denied because it is coupled with an application for a new location?

'2. Did the governing body act arbitrarily, capriciously and without adequate determining principle in denying the application of appellant for renewal of his license at a new location?

'3. Was the meeting and proceeding had by the governing body sufficient to satisfy due process guaranteed to appellant by the Constitution?'

I. We shall consider the third contention first; namely, as to whether or not the proceeding of the governing body was sufficient to satify due process guaranteed by the Constitution. We think the authorities are clear that he was not deprived of any constitutional right. If he were, the provision of our statute that the right to a license to sell intoxicating liquor is a mere personal privilege would hardly be valid. Long ago the Supreme Court of the United States in Crowley v. Christensen, 137 U.S. 86, 91, 11 S.Ct. 13, 15, 34 L.Ed. 620, 624, stated:

'* * * There is no inherent right in a citizen to sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only. As in many other cases, the officers may not always exercise the power conferred upon them with wisdom or justice to the parties affected. But that is a matter which does not affect the authority of the state, or one which can be brought under the cognizance of the courts of the United States.'

The court said in State ex rel. Billado v. Wheelock, 114 Vt. 350, 45 A.2d 430, 432:

'Because of the tendency of the use of intoxicating liquors to deprave public morals, it has come to be the generally accepted doctrine that the manufacture or sale of such liquors, and even their possession or use, is not a matter of 'common', 'inherent', or 'natural' right, but, if a right at all, is one held subject to the police power of the State; in other words, it is a mere privilege which the State may grant to some and deny to others, or may take away altogether. * * *'

In Cusano v. Dunn, 137 Conn. 20, 74 A.2d 477, 479, the court stated:

'A permit to sell intoxicating liquors is a purely personal privilege revocable at the discretion of the commission, does not constitute property, and is not transferable. * * *' See further 30 Am.Jur., Intoxicating Liquors, §§ 19, 20, pp. 262, 263. From this it is clear that the due process clause of the Constitution is not involved, at least when a license for intoxicating liquor is not sought to be revoked. Whatever rights the appellant has depends on our statute. A violation of our statute and that alone can give rise to a complaint on the part of the appellant.

II. When we are dealing with the question involving purely and merely the question of renewal (and not with that of a transfer), the action of the council claimed to be arbitrary and capricious is not of primary importance in view of the fact, as noted below, that its action could then be corrected by the court in a trial de novo; so that we should first consider the nature of the rights of the applicant under the statute and whether or not he is entitled to a trial de novo. That, in the main, must be determined by the provisions of § 53-205, W.C.S.1945. Omitting unnecessary details, it provides:

'* * * Upon the expiration of any licensee (license) the owner and holder thereof shall have a preference right to a new license for the same location, if such license may be granted under this Act * * *. No applicant for license shall have a right of appeal from the decision of a governing body denying an application, except applicants holding a license which is expiring, and applying for a renewal. * * *

'Any such applicant owning and holding a license which is expiring * * * and whose application for a new license has been denied by such governing body, may have an appeal from such decision to the District Court * * *.

'* * * and upon said appeal being perfected, said proceeding shall stand to be heard, and for trial de novo, by said court. * * *' (Emphasis supplied.)

Unlike the provisions in many other states, the legislature in this state has seen fit not to grant the right of appeal in all cases. Such right is distinctly limited. It is not given when an applicant wants an original license and which is denied. It is limited to those applying for a renewal. The next sentence providing that 'any such applicant' shall have the right of appeal if a license is refused, also clearly refers to the right of renewal. Nor is the contrary contended. Counsel for applicant contends, if we understand him correctly,...

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