Burgner v. Cannon , 26 Utah 2d 56 ( 1971 )

HENRIOD, Justice:

Appeal from an order in a mandamus proceeding requiring the members of the defendant Planning Commission to issue a permit authorizing petitioner to operate a s'tate liquor store in her cafe subject to approval of the local¹ and state authorities.² Neither affirmed nor reversed, but remanded for further proceedings.

Salt Lake County (the local authority), by a 1969 ordinance³ implementing the legislation in footnotes 1 and 2 below, delegated to its Planning Commission the duty of issuing permits in connection with such state liquor stores in restaurants, laying down certain guidelines incident to such issuance. Under Sec. 22-31-4(2) of the ordinance, if the Planning Board grants the petition for the permit, such decision is subject to review by the County Commission for its approval or rejection, but if the Planning Board denies the petition, it is reviewable by the District Court. In either event the appeal is to be filed with the Commission or the Court within 30 days. This rather unusual ordinance was worded thus, according to counsel, in order to inoculate the Commission against political pressures in the case of a denial of the petition. This may be a most wholesome provision but it is not authoritative, since the County Commission has no sanction either to confer jurisdiction on the District Court, nor to set the time within which an appeal thereto must be taken.

Even though that portion of the ordinance with respect to the denial is impotent, the result would be the same even if it were not. If we upheld the lower court and ordered the Planning Commission to grant the permit, it would be subject to approval or rejection by the County Commission under the ordinance, and if we reversed the lower court and sustained the Planning Commission’s denial of the permit, it would have to be approved or rejected by the County Commission under the state statute anyway. In either event our action would be a useless gesture, a result not contemplated by the employment of the extraordinary writ of mandamus. We think the parties at least should consider the advisability of seeking a review before the County Commission at everyone’s convenience, since that is where an application such as this, of necessity, will wind up under the state liquor control statutes.

CALLISTER, C. J., and TUCKETT and ELLETT, JJ., concur.

1 . Title 32-1-36.5, Utah Code Annotated, 1953, as amended (Ch. 83, Laws of Utah, 1969, p. 378; see Vol. 4, U.C.A.1953, 1969 Pocket Supp. p. 55).

2 . 32-1-36.10, U.C.A.1953 (Ch. 83, L.U. 1969, p. 379; Vol. 4, U.C.A.1953, 1969 Pocket Supp. p. 56).

3 .Secs. 22-1-6, 81 & 82 (definitions), Sec. 22-31-4(1) (authority and guidelines); see 22-31-4(2) (review of decision of Planning Board).