Perkins v. Loux

SULLIVAN, J. This is an action commenced in the district court for a writ of mandate to compel the city council of the city of Pocatello to issue a license to the respondents to sell liquors at retail in said city. The complaint alleges the partnership of the plaintiffs, the corporate capacity of the city and that the defendants are its officers; the application for license, ordinances under which the same was asked and the refusal to grant the license. A general demurrer was interposed, which was overruled and defendants answered. On motion a large part of the answer was stricken out. Thereafter evidence was submitted by both parties and findings of fact and conclusions of law made and judgment entered in favor of the respondents. This appeal is from the .judgment on the judgment-roll alone. A motion to strike out portions of the transcript has been ■interposed, but it is contended by counsel for appellants that said motion comes too late, as the transcript was filed on the .9th of November, 1907, and the case was for hearing at the November term of this court, and as this motion was not made until the February term of the court, it came too late under — 610 — the provisions of Rule 17 of the rules of this court, which rule provides that objections to the transcript, statement, the-bond, undertaking on appeal, etc., or any objection to the-record affecting the rights of the appellants to be heard on. the points of error assigned, must be taken at the first term after the transcript is filed. ¥e think the contention of counsel for appellants is correct and must be sustained, as; motions of this kind must be made under said rule at the; first term after the transcript is filed. The overruling of the demurrer to the complaint is assigned as error. The demurrer goes to the seventh paragraph; ■of the complaint, which is as follows: “That on the 7th day of May, 1907, said Perkins & McCarty duly petitioned said Council as required by said Ordinances, to issue to them a license for three months as-retail dealers in spirituous, vinous and malt liquors. Said retail liquor business to be conducted upon Lot Eighteen,, in Block 372, in the City of Pocatello, Bannock County, Idaho, at what is known as the Tupper House on South First Avenue. “And said petition being then and there signed by not less than a majority of the property owners and tenants of property owners of the said Block in which it was so intended to conduct said business, and said petition also being accompanied by $126.00.” It is contended that the allegations in said paragraph are not sufficient, for the reason that the petition required to be presented is not alleged to have been signed by a majority of the property owners and tenants of property owners of the-block in which it was intended to conduct said business, the alley being the dividing line of the block. It is contended, that the allegation in the complaint alleges that the petition, presented was signed by not less than a majority of the property owners and tenants of property owners in the block: in which it was intended to conduct said business, but it does-not allege that the signers of said petition are property owners, and tenants of property owners residing in the block where-such business is to be conducted, the alley being the dividing; — 611 — line. A part of sec. 115 of the ordinances of the city of Pocatello is as follows: “All applications for such license shall be made by petition to the city council, said petition to be signed by not less than the majority of property owners, and tenants of property owners, residing in that block in which it is intended to conduct the business for which the license is sought. The alley being the dividing line of the block.’' That section provides that no license shall be issued except on the conditions named therein, the presentation of a petition signed by a majority of the property owners and tenants thereof, residing in the half block where such business is to be carried on. The clear intent of the language used in said ordinance is that the petition required to be presented to the city council must be signed by a majority of the property owners or tenants of property owners residing in the half block where said business is to be conducted. That being true, the demurrer should have been sustained, for the reason that'the complaint fails to state a cause of action, for when one claims a right under the statute, he must allege all the facts required by the statute in order to bring himself within its provisions. This court held in Sherwood v. Stephens, 13 Ida. 399, 90 Pac. 343, that where a pleader wishes to avail himself of a statutory privilege or right to be granted on particular facts, such facts must be alleged in the complaint. The court, therefore, erred in overruling the demurrer. The demurrer should have been sustained. It is next contended that the court erred in striking out certain portions of the affirmative matter set forth in the answer. The court evidently struck out said part of the answer on the theory that if the proper petition was presented to the city council, it was compulsory upon the council to grant the license. Under the amendatory act of sec. 73 of an act concerning the organization, government and powers of cities and villages, approved March 15, 1907, it is provided that in addition to the powers theretofore granted to cities and villages under the provisions of law, that any city or village may, by ordinance or by-law (subdiv. 8, p. 518), “Li — 612 — cense, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor.” Under those provisions the council of Pocatello, by sec. 114 of its ordinances, provided that it shall be unlawful to sell, barter, deal or otherwise dispose of spirituous, vinous, malt or other intoxicating liquors without first having obtained a license therefor. A part of the provisions of ordinance, see. 115, is above quoted, and requires the application for license to retail liquor to be made by petition, etc. See. 116 of said ordinances provides that upon the granting of the license petitioned for, the applicant shall pay to the treasurer the license fee and thereafter the clerk shall issue the license. The question is then presented whether under the law and the provisions of said ordinances the city council had any authority whatever to refuse a license in case a proper petition was presented. The language of the ordinance we do not think is mandatory, and sec. 116 provides that “Upon the granting of the license petitioned for,” etc., but does not provide that it must be granted to disreputable characters whose conduct of the business would menace the peace of the city. It does not provide that the license must be granted upon presenting the petition. If the city council had no discretion in the matter, but must grant the license, the ordinance in question would have provided that upon filing a proper petition a license must issue. That part of the answer stricken out on motion was to the effect that the application for such license by the plaintiffs was made for the sole use and benefit of one Joseph Murphy, who had theretofore been refused a license; that during the years 1904 and 1905, said Murphy was engaged in the retail business in the city of Pocatello; that he operated and conducted a dance-hall therein, in which congregated a large number of lewd woman and immoral men, and thugs, highwaymen, holdups and thieves were suffered and allowed to congregate for the purpose of plying their vocation and fleecing such victims as might venture therein; that the place of business of said Murphy became a menace to the morals of the young men and boys of the city of Pocatello and — 613 — notorious throughout the southern part of the state, to the great shame and disgrace of said city; that said place of business was commonly known and referred to as “Honky-tonk,” and under such name became notorious as an immoral and disreputable place, and one highly dangerous to the morals of the city. The part of the answer stricken out contained other allegations in regard to the disreputable character of said Murphy. We are satisfied that under the law and the provisions of said ordinances, the city council had some discretion in granting licenses, and it was their bounden duty to refuse to grant a license to anyone of such character as said Murphy was alleged to be, and the court erred in striking that part of the answer. They were not obliged to grant a license to anyone who would conduct a resort that would be dangerous to the public peace and quiet of their city. In Perry v. City Council of Salt Lake City, 7 Utah, 143, 25 Pac. 739, 11 L. R. A. 446, it was held that the city council of Salt Lake City, under a power given them by law to license, regulate and tax the sale of intoxicating liquors, had discretion to refuse a" license, notwithstanding the applicant has complied with the ordinance with respect to the petition, bond, etc., where no previous ordinance has specified the persons to whom nor the places where licenses may be granted. This class of legislation for the regulation of the sale of liquor, is to protect' society from the evils attending it. The benefit of the dealer is not the chief end of such laws and regulations, and to intrust the privilege of selling intoxicating liquors to such persons as the allegations of the answer showed the person for whom such license was intended would be a menace to the peace and good order of the city. There is no inherent right in a citizen to sell intoxicating liquors at retail. It is a business attended with danger to the community, and it is recognized everywhere as a subject of regulation. (Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. ed. 620.) We therefore conclude that the city council has a reasonable discretion in granting such licenses. — 614 — The judgment is reversed and the cause remanded. Costs are awarded to the appellant. Ailshie, C. J., concurs.