Commissioners of Maxton v. Commissioners of Robeson County , 107 N.C. 335 ( 1890 )

^* Headnotes by CLARK, J. Demurrer was overruled, mandamus refused, and judgment against plaintiffs for costs. Appeal by plaintiffs. In the answer, it is alleged, "the defendants deny that they willfully and absolutely refused to grant license to said J. T. Pool Co. on that or any other occasion, but that, after hearing evidence both for and against the said applications, and argument of (336) counsel and due consideration of the application, the defendants were of the opinion that said applicants were not fit persons to retail spirituous liquors"; and also "they further ever that, on the hearing of their said applications for an order for license to retail at Maxton, in this country, on 22 August, 1890, the defendants examined witness and heard testimony as to good moral character and fitness of the said applicants, as required by law, and also as to the places at which, in said town of Maxton, they proposed to conduct their traffic; and, after hearing arguments of counsel and due consideration of the evidence, they were of the opinion that the evidence was not satisfactory and did not establish that the applicants were men of good moral character, or that the places at which it was proposed to retail were suitable for that business, and denied the same. Defendants further deny that they acted willfully for arbitrarily in said matter, but proceeded on their convictions of duty in the light of evidence and the facts."

The demurrer admits these allegations to be true. It is settled that upon such state of facts a mandamus could not issue. Muller v. Comrs.,89 N.C. 171; Jones v. Comrs., 106 N.C. 436.

The plaintiffs rely upon sections 75 and 76, and chapter 25, Private Laws 1889, and contend that, inasmuch as the answer admits that at the election held in Maxton "license" to sell liquor carried the majority of votes, the county commissioners were deprived of any discretion in regard to the character of the applicant to sell liquor in that town, provided permission in writing had been granted to such applicant by the commissioners of the town. We do not think so. The sections referred to prohibit the county commissioners from granting license to retail liquor in said town without permission in writing from the commissioners of the town, and prohibit the town commissioners from granting such permission, unless the town shall vote for "license," (337) and in that event all laws prohibiting the sale of liquors in said town are repealed.

The town of Maxton, having so voted, was like any other territory in which there was no prohibitory law, and the powers and duties of the country commissioners were the same in regard to it, except that before they could grant license to any person, however fit they might adjudge him to be, the permission of the town commissioners, in writing, must be first had. The effect of those sections is simply to require a concurrence of both boards to authorize a license to sell liquor in the corporate limits.S. v. Propst, 87 N.C. 560.

We do not see why the commissioners of Maxton were joined as parties plaintiff with the applicants for the license. Their presence seems to have been unnecessary, but in no wise prejudicial.

Per Curiam. Affirmed.

Cited: Hillsboro v. Smith, 110 N.C. 419; Barnes v. Comrs.,135 N.C. 43.