Murphy v. Withers , 204 Ga. 60 ( 1948 )

Had the petition for mandamus in the instant case sought to compel the mayor and council to fix terms and conditions under which wine licenses might be issued, as in the case of Thomas v. Ragsdale, 188 Ga. 238 (3 S.E.2d 567), or had the petition sought to compel such governing authority to entertain and pass upon, one way or another, the petitioner's application for a wine license, as in the case of Harmon v. James, 200 Ga. 742 (38 S.E.2d 401), an entirely different question would have been presented. However, since the petition seeks a mandamus, not to entertain the petitioner's application, but to compel the mayor and council to issue to him a wine license upon his individual application, and since no one has an inherent right to engage in such a business, which can be made the proper subject for enforcement by the writ of mandamus — this court will not, therefore, inquire into the exercise of discretion lawfully reposed in the defendant mayor and council to determine whether or not such discretion has been grossly abused or arbitrarily or capriciously exercised.

No. 16282. JULY 15, 1948. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. K. T. Murphy brought a petition for mandamus against the named Mayor and Council of the City of Moultrie, setting out the following: He appeared before the mayor and council at a regular session on March 2, 1948, and demanded a city license to sell wine; and appeared at the next regular meeting of said mayor and council on March 16, 1948, and renewed his demand for a license to sell wine in said city. The council voted three to two not to issue him said license nor to allow any wine to be sold in the City of Moultrie. He further alleged: that he had, prior to March 2, 1948, rented a storehouse and lot in Moultrie for the selling of legal wine in said city; that the refusal of the defendant to grant him his legal rights to a license will cause him to pay $600 in rent and an unknown sum in profits which he could make from said wine business; that no election has been called in Colquitt County since the passage of the wine act in 1935 (Code, § 58-801 et seq.); and that, although Colquitt County has for several years issued licenses for the sale of wine, the City of Moultrie has passed no regulation for the sale of wine within its limits, nor has it fixed any tax therefor. He prayed for a rule nisi; that on the hearing the mandamus be made absolute; and that "the defendants be required to issue to plaintiff said wine license as he has asked for," for the reason that "the failure of the defendants to issue such license is wilful and contrary to law, in that they have no discretion in the matter."

The defendants filed to the petition a general demurrer, which the judge of the lower court sustained. The case is here on a direct bill of exceptions assigning error on that order. (After stating the foregoing facts.) Before taking up the controlling question in this case, it is well to point out that the prayers of the petition are not for a mandamus to compel the city authorities to accept and pass upon an application for a wine license, as in Harmon v. James,200 Ga. 742 (supra); or to fix terms and conditions upon which licenses might be issued as in Thomas v. Ragsdale, 188 Ga. 238 (supra); but rather, the contention in this case is that the failure of the defendants to issue the particular license sought by the particular applicant is wilful and contrary to law, in that they had no discretion in the matter, and the prayers of the petition are that the writ issue, "requiring them to issue a wine license to plaintiff to conduct such business in the City of Moultrie, Ga." The question, therefore, is entirely different from that presented in the cases above cited, where in a proper case mandamus might lie for the purposes there indicated. Accordingly, the sole question here involved is whether or not the plaintiff has such a right to engage in the business of retailing wine as can be enforced by the writ of mandamus.

In this connection, the rule, as repeatedly stated by this court, is that, before mandamus will issue, "the law must not only authorize the act to be done, but must require its performance." Hart v. Head, 186 Ga. 823, 824 (199 S.E. 125); and to entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced. Harmon v. James, 200 Ga. 742 (supra). In the instant case, the only authority for anyone in Georgia to engage in the business of retailing wines is contained in the so-called "Wine Act of 1935" (Ga. L. 1935, pp. 492 et seq.), the pertinent portions of which, as several times amended, are now codified under §§ 58-801 et seq. of the Annotated Code Supplement. InSprayberry v. Wyatt, 203 Ga. 27 (45 S.E.2d 625), this court, in considering the provisions of the "Wine Act" together with the provisions of the Code, § 58-101, which defines prohibited liquors and beverages, has held that wine is still aprohibited beverage under Georgia law, and that in order to remove it from the operation of the law as stated in the Code, §§ 58-101 and 58-109, its sale "must be in a county where it is not prohibited, and the seller must also have a license permitting him to sell or deal in wine." In other words, under the above ruling by this court, the Wine Act has not conferred an absolute right to engage in the business of retailing wines, but on the contrary it is only in counties which have not voted to prohibit its sale that the statute authorizes one to make application for a license, without which, even in such a county, its sale would be illegal. With respect to the right to obtain a license to retail wines, the legislature has itself recognized that the business of retailing wines is by its nature one so affected with a public interest as to be the proper subject for strict police regulation by providing (Code Ann. Supp. §§ 58-806, 58-807), that local governing authorities "may refuse to grant such license upon proper cause;" and further that such authorities may "close any place retailing wines, which is not conducted in an orderly manner." Since each application for a wine license must be determined on the basis of altogether-local circumstances and considerations, the grant or refusal of a license must remain within the sound discretion of the local governing authorities. Manifestly, courts will not upon an application for the writ of mandamus pass upon the sufficiency of the "cause" in cases where the application for wine license has been denied; but if the refusal of such license could be tested and controlled by the courts, then and in such event the remedy would be by certiorari contesting the judgment of refusal, and not by mandamus seeking to override a judgment not appealed from.

After determining that the business of retailing wines is illegal without a license, and one subject to strict police regulation, and that the grant or refusal of such a license is discretionary with the local governing authorities, it follows that the right to obtain such a license by mandamus is altogether analogous to the right of an individual to obtain by mandamus a license to engage in the business of retailing malt beverages or other spirituous liquors. In cases of the latter character, under repeated rulings of this court, mandamus will not lie to compel the issuance of a license, and its denial does not deprive the applicant of anything to which he has an absolute right, nor does it deprive him of life, liberty, or property. Ward v.Drennon, 201 Ga. 605 (2) (40 S.E.2d 549), and cases there cited. Accordingly, since the instant petition is not to compel the city to fix terms and regulations under which applications for licenses must be considered, but is a mandamus proceeding to compel the municipal authorities to issue a license to the particular applicant bringing the proceeding, and since the applicant has no inherent legal right to engage in such a business, which can be made the proper subject for enforcement by the writ of mandamus, this court will not inquire into the exercise of discretion lawfully reposed in the defendants to determine whether or not the refusal of a license in the instant case was so arbitrary or capricious as to constitute an abuse of discretion. Ward v. Drennon; Thomas v. Ragsdale, supra. The obiter dictum in Brock v. State, 65 Ga. 437, to the effect that where the refusal is arbitrary and contrary to law, mandamus is a remedy, has already been dealt with by this court as such inPhillips v. Head, 188 Ga. 511, 516 (4 S.E.2d 240), and as there ruled is not binding. As to the right to a mandamus to obtain a license to engage in a business which is of a character inherently legitimate (as distinguished from one subject to strict police regulation), where there has been a gross abuse of discretion in its denial, see Ward v. Drennon, 201 Ga. 605 (2 a) (supra).

Under the foregoing rulings, the trial court did not err in dismissing the petition for mandamus on general demurrer.

Judgment affirmed. Duckworth, Presiding Justice, Atkinson,Wyatt, Head, and Candler, Justices, and Judge A. M. Anderson,concur.