DocketNumber： No. 13,818.
Judges： Young, Bouck
Filed Date： 2/3/1936
Status： Precedential
Modified Date： 11/3/2024
delivered the opinion of the court.
This case is one in which the petitioner Yan DeYegt sought to procure from the county court of Larimer county a writ of mandamus to compel the board of county commissioners of the county to issue a liquor license permitting him to sell liquor in his drugstore situated 700 feet south of the southern city limits of Fort Collins on the Fort Collins-Loveland highway. To reverse the judgment of the county court denying the writ he brings the cause here on error. All italics used in this opinion are ours unless otherwise indicated.
The sections of the liquor code of 1935, being chapter 142, of the Session Laws of 1935, pertinent to our consideration of the matters here involved are as follows:
“Section 1. This Act shall be deemed an exercise of the police powers of the State for the protection of the economic and social welfare, the health and peace and morals of the people of this State, but no provisions of this law shall ever be construed so as to authorize the establishment or maintenance of any saloon.
“Section 2. On and after the effective date of this Act, it shall be lawful to manufacture and sell for beverage or medicinal purposes malt, vinous or spirituous liquors, subject to the terms, conditions, limitations and restrictions contained in this Act.
“Section 3. It shall be unlawful for any person:
(a) To manufacture, sell or possess for sale any malt,*164 vinous or spirituous liquors, excepting in compliance with this Act.”
“Section 8 (b) Upon written demand by an applicant wbo has been refused a state license said Licensing-Authority shall state in writing- its reasons for such refusal. The refusal of said Licensing- Authority to grant a State license according to the provisions of this Act may be reviewed upon application for writ of certiorari or otherwise, by any court of general jurisdiction having jurisdiction of the place for which the application for license was made, and if such court shall determine that such action was capricious or arbitrary it shall order said State Licensing Authority to issue such license. * * *
“Section 9. The licenses provided by this Act, except where the license fee is to be paid into the treasury of any city, town, city and county or county, shall be issued and granted by the State Licensing Authority, for which the fee is to be paid to the State Treasurer, within fifteen days after the filing of the application therefor. Where the license fee is to be paid into the Treasury of any city, town or city and county, the licenses in this Act provided for shall be issued by the council in a city and county and by the council, board of trustees or licensing authority in any other city or town, where the license fee is to be paid into the treasury of a county, the licenses provided for in this Act shall be issued by the Board of County Commissioners of such county. The council of a city and county and boards of trustees, councils or licensing- authorities in any other city or town and the Board of County Commissioners in any county shall have authority to refuse to issue any licenses provided for in this Act for good cause,- subject to review by the courts as hereinbefore provided.
“Before granting any license all licensing- authorities shall consider the reasonable requirements of the neighborhood, the desires of the inhabitants, as evidenced by petitions, remonstrances or otherwise and all*165 other reasonable restrictions which are or may be placed upon the new district or districts by the council of the city, town, city and county or county or by the Board of County Commissioners of any county.”
“Section 18-A. Liquor Licensed Drug Store License. Liquor licensed drug stores as defined in this Act shall be licensed only to sell malt, vinous and spirituous liquors in seal [sealed] containers not to be consumed at the place where sold.
“Every person selling malt, vinous and spirituous liquors in a liquor licensed drug store shall pay to the State Treasurer a license fee of Fifty Dollars ($50.00) annually in advance for each place where such liquor shall be sold.
“In addition to paying the State license fee herein provided to be paid, every liquor licensed drug store shall pay the following fee to the Treasurer of the city, town, city and county, or county where said liquor licensed drug store is located.
“(a) If said liquor licensed drug store is within any city, town or city and county, an annual license fee of One Hundred Fifty Dollars ($150.00) in advance.
“(b) If said liquor licensed drug store is outside the corporate limits of any town, city or city and county, an annual license fee of Two Hundred Fifty Dollars ($250.00) in advance.”
Section 27 of the act provides for local option and that the operation of the act shall be state-wide unless any city, city and county or incorporated town shall, by a majority of the qualified electors at a general election, or special election called for that purpose, decide against the right to sell liquor or shall limit its sale in such political subdivision as by the act provided.
Such discretion, if any, as is vested in the commissioners with reference to issuing licenses is found in section 9, supra. The respondent board claims there is a discretion to issue, or refuse to issue, vested in it by said section 9. Petitioner says: “The license issued by
Capricious or arbitrary exercise of discretion by an administrative board can arise in only three ways, namely: (a) By neglecting or refusing to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it. (b) By failing to give candid and honest consideration of the evidence before it on which it is authorized to act in exercising its discretion, (c) By exercising its discretion in such manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly consider
In determining whether the action here in question was capricious or arbitrary in any one of the foregoing respects it is necessary to consider the manner in which the controversy arose, the evidence before the board, and its action based thereon. There is no contention that the board refused to receive evidence pertinent to the matter under consideration. The evidence on which it acted is before us in the form of admissions in the pleadings and stipulations between the parties. It is definite and certain. There is no assertion that it was not given fair and honest consideration. The contention is, that upon the evidence before it, and after due consideration, the board reached conclusions therefrom upon which it refused petitioner a license, when reasonable men from a fair and honest consideration of the evidence must have arrived at a contrary conclusion and granted a license accordingly.
The evidence before the board was substantially as follows: That plaintiff, on May 1.1, 1935, applied for a license to operate a liquor drugstore; that the locus of the proposed liquor dispensary is 700 feet south of the southern boundary of Fort Collins on the main highway to Loveland; that the city of Fort Collins and territory contiguous within a five mile radius has a population of more than 15,000 people; that the qualified electors of Fort Collins number 6,425; that there is no store or other establishment of any description, either retail liquor store or liquor licensed drugstore selling liquor at a point nearer than twelve miles from the southern boundaries of said city of Fort Collins, to wit: at Loveland,
The board in its answer to the alternative writ alleged the holding of a local option election by the city of Fort Collins June 25, 1935, and subsequent to the refusal of the board to grant the license, at which out of 6,425 qualified electors, 1,818 voted against, and 574 voted for, the sale of malt, vinous and spirituous liquor, or any of them,
Petitioner alleges that “on and prior to said 11th day of May, 1935, and since said date, he has applied to the Board of County Commissioners * * * for the issuance of a license.” This allegation is admitted by respondent. It appears reasonable to us that when the alternative writ was issued commanding the board to issue the license the matter still was in the board’s hands. It might, under the alternative writ, adopt one of two courses, issue the license or answer to the court why it had not done so. Until the respondent board filed its answer July 2nd, it still had the right, in the exercise of its discretion, to issue the license or refuse and show cause. So long as the question of the issuance of the license was before it for determination the board had a right to consider, and in fact it was its duty to consider, all the evidence before it bearing on the question presented for decision. By way of illustration, let us suppose that after the filing of an application for a license— which was refused — but before an answer was filed by the board to an alternative writ of mandamus, the applicant should be convicted of a felony. Could not the board set up such conviction in support of its continued
Since the matter of the result of the election— stricken by the court — does not rest on the testimony of witnesses upon whose credibility the trial court should first pass, but upon formal stipulations and pleadings, we are as able to judge the effect of the evidence as was the trial court and we shall consider such matters as they appear in the pleadings and the stipulations in arriving at our conclusions.
The petitions signed by 750 voters, which were filed with the court by petitioner after the issues were made up, were not presented to or passed on by the board at the time it answered and finally refused the license, and not having been before the board the trial court properly refused to consider them, and they will not be considered here. Had petitioner so desired these petitions could have been secured and presented to the board before bringing the action in mandamus, or before the board had acted finally by answering. Petitioner has no ground upon which to complain that the board acted arbitrarily or capriciously in not granting him a license, when such ground is based on evidence that he never presented to it, and which it never had an opportunity to
In our opinion it was the intention of the legislature by passing section 9 of the act to vest a wide discretion in county commissioners with respect to issuing licenses for liquor stores. Petitioner contended in oral argument that the board, in its discretion — if any is vested in it — can go no further than to consider the fitness of the applicant, and the propriety of locating a dispensary at the place proposed. The contention is unsound. The act permits the board to consider “the desires of the inhabitants as evidenced by petitions, remonstrances or otherwise.” That these desires may be influenced by the character of the person applying for license, the proposed location, or the character of the business itself cannot be denied. Regardless of their reasons, the desires of the inhabitants are to be considered under this statutory provision. There are many unincorporated towns in the state. If all of the citizens of such a town, save the applicant, were opposed to the granting of a license for the sale of liquor in the town solely on the ground that they were conscientiously opposed to such traffic it could not seriously be contended that their desires so expressed were not a proper subject for consideration by the board, and if proper for consideration when such desires, influenced by dry sentiment, were unanimous, the desires of any part of the citizens, however influenced, evidenced by petitions, remonstrances, or otherwise, likewise are proper for the consideration of the board, to be given such weight as shall be reasonable and as it shall determine.
It will be observed that the statute refers to the “desires of the inhabitants.” We are relieved of the necessity in this case of determining or deciding to what geographical section of the state “the inhabitants” shall be limited. Likewise we are not called upon to determine what are the limits of a “neighborhood” within the contemplation of the statute. Both parties submit
Upon a careful review of the evidence we cannot say that the board exercised its discretion capriciously or arbitrarily, judged by any of the three standards to which we have heretofore called attention. The board did not refuse to receive any evidence offered. It considered the evidence, as is shown by its statements of the reasons for its refusal to grant the license, set forth in its answer to the writ. The evidence shows the location of the proposed dispensary to be in close proximity to, and easily accessible from, the Colorado State College in which 1,200 students are enrolled from all parts of the state. The board alleges in its answer, and it must be held that it concluded, that intoxicating liquors easily accessible in the vicinity of said college would be detrimental to the morals and good conduct of the students, to the administration and conduct of said college, and to the peace and good order of said city and the neighborhood thereof. Petitioner denies these allegations, but we cannot say that the commissioners, in view of the protests admitted to have been made by many of the officials of the college and of the public schools, arrived at an unreasonable conclusion under the evidence, or at least that reasonable men might not draw different conclusions upon a fair consideration of such evidence. If
Since the law requires that all licenses for which provision is made must be procured before one can lawfully engage in the business, and since a local administrative board is peculiarly fitted to determine whether, under all the surrounding circumstances and in any given community, the granting or refusal of a license will most nearly effectuate the purpose of the act, which is for the “protection of the economic and social welfare, the health and peace and morals,” of any given locality in the state, we are not authorized to hold their action arbitrary and capricious where such action is based on evidence from which reasonable men might honestly draw different conclusions. We have held that even a reasonable doubt must be resolved in favor of the action of the board vested with discretion. In State Board v. Denver, 61 Colo. 266, 156 Pac. 1100, we quoted the following with approval:
“ ‘That rule is, that in all matters requiring the exercise of official judgment, or resting in the sound discretion of the person to whom a duty is confided by law, mandamus will not lie, either to control the exercise of that discretion, or to determine upon the decision which shall be finally given. And whenever public officers are vested "with powers of discretionary nature as to the performance of any official duty, or in reaching a given*174 result of official action, they are required to exercise any degree of judgment, while it is proper by mandamus to set them in motion and to require their action upon all matters officially entrusted to their judgment and discretion, the courts will in no manner interfere with the exercise of their discretion, nor attempt by mandamus to control or dictate the judgment to be given. Indeed, so jealous are the courts of encroaching in any manner upon the discretionary powers of public officers, that if any reasonable doubt exists as to the question of discretion or want of discretion, they will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer.’ High’s Extraordinary Legal Remedies (3d ed.) §42, p. 50.”
The argument is advanced by respondent that to license what it calls “fringe stores” would nullify the act of the people' of the town in voting local option. That licensing such stores would have this effect, is not a matter that in and of itself is a bar to the issuance of such licenses, but is merely a circumstance to which the board is entitled to give such reasonable weight as it shall determine. The vote and its preponderance one way or the other is not a controlling factor, but is a circumstance indicative of the desires of the inhabitants of a city within the territory, and which both parties to the cause, by the filing of petitions signed by residents therein, have indicated they believe have a right to express their desires and have them considered.
Counsel for petitioner contends that the liquor code is a mandate to permit the sale of liquor except in local option territory. We do not so construe it. It makes the sale of liquor lawful, “subject to the terms, conditions, limitations and restrictions contained in this Act.” Among the conditions imposed are that all licenses required be first secured. §3(h).
We are supported in the foregoing conclusions by the following citations and cases:
Pitcher v. Albi Mercantile Co., 60 Colo. 289, 152 Pac.*175 894: “Except as the ordinance of the City and County of Denver, No. 223, Series of 1913, may inhibit the issuance of a license to keep a saloon within a specified distance of designated places, the Excise Commissioner is invested with a sound judicial discretion, to be exercised in view of all the facts and circumstances of each particular case, as to granting or refusing a license to keep a saloon, and such discretion will not be interfered with unless it appears it has been abused. ’ ’
Downes v. McClellan, 72 Colo. 204, 210 Pac. 397, was an action in mandamus under section 3992, E. S. 1908, in which the court said: “This statute is not one for revenue only. It is one related to the exercise of the police power and to regulate the businesses enumerated. The power to license in such cases includes the power to refuse a license, even where statutory or prehminary requirements are complied with. 25 Cyc. 603; People, ex rel. v. Grant, 126 N. Y. 473, 27 N. E. 964. The power to refuse a license necessarily means having a discretion to grant or refuse, and mandamus will not lie to compel the granting of a license where it is not alleged and shown that the exercise of such discretion was arbitrary. 5 McQuillin Munic. Corp., section 2564; People, ex rel. v. Grant, supra. The complaint in the instant case does not state facts sufficient to warrant a peremptory writ of mandamus for the reason that it does not show that the defendants abused their discretion, but on the other hand, that they refused to grant the license on the ground that plaintiffs place of business is a ‘public nuisance.’ It was therefore error to overrule the demurrer.”
Our conclusions are not shaken by the three cases, infra, cited by petitioner.
Gagen v. City of Louisville, 145 Ky. 3, 139 S. W. 1061, holds only that an applicant for a saloon license who is refused a license by the licensing board, does not have a ground of recovery against the city for loss of profits while the case is pending on review of the board’s action, though finally determined in his favor.
State ex rel. v. Town of Clendenin, 92 W. Va. 618, 115 S. E. 583, is a case in which a town council had refused a license to operate a pool hall. One of the grounds of refusal was that the location was not a proper place for a pool hall because it was on the main street of the town; that the inhabitants were largely church going country folk who were opposed to the operation of pool tables where their children would come within the influence thereof; and that by reason of such location it would be detrimental to the welfare and morals of the inhabitants. The court held this not to be a lawful reason for refusal, and that refusal based on such ground was arbitrary. It does not appear that there was any statute authorizing the council to consider, as our statute does, either the requirements of the neighborhood or desires of the inhabitants. The court said: “The policy of our laws is to authorize the operation of such tables as a revenue measiire.” The avowed object of our act as set forth in section 1, is by the exercise of the police power to protect “the economic and social welfare, the health and peace and morals of the people of this State.” We think it clear that our statute opens a far wider field for evidence, proper for consideration, than the court held to be admissible in the West Virginia case. That case for this reason, is clearly distinguishable from the one here under consideration.
The judgment of the lower court is affirmed.
Mr. Justice Holland dissents.
Mr. Justice Butler, and Mr. Justice Bouck (who will later file a statement of his reasons), think that the case has become moot, and for that reason the writ of error should be dismissed.