State ex rel. Ducourneau v. Langan

McCLELLAN, J. — This is a petition for writ of mandamus to compel the issuance of a license to the relator to operate a theater or variety show wherein wines and vinous, spirituous, or malt liquors are sold or served.' Demurrer was sustained to the petition, and, petitioner declining to plead further, the writ was denied. Regardless of the validity or invalidity of the ordinance prescribing territorial limits, within the city of Mobile, in which only the business here contemplated by the relator is licensable, we are of the opinion that the judgment of the circuit court is well rendered. It is settled that writ of mandamus will not issue to control the exercise of judgment or discretion. It is only a ministerial, not a judicial or quasi judicial, duty to compel the performance of which the writ will issue. Wherever the duty, the performance of Avhich is sought to be enforced, rests upon the ascertainment of facts or [651] the existence of conditions by the officer against whom it is prayed, his judgment or discretion being invoked, the wait is not available to the petitioner or relator.- — - Taylor v. Kolb, 100 Ala. 603, 13 South. 779; 19 Am. & Eng. Ency. Law, p. 821, and note. In the charter of the city of Mobile (Acts 1900-01, p. 2375) it is provided that “no license of any kind shall be granted except to respectable people and for lawful business,” and revocation of issued license may be, upon condiitons stated, had by the mayor’s action. It is evident that judgment and discretion are reposed as conditions to the issuance of license in this municipality, and that the writ cannot run to control it in behalf of this relator. — Dunbar v. Frazer, 78 Ala. 538; Ramagnano v. Crook, 85 Ala. 226, 3 South. 845. The petition shows that the mayor, whose concurrent act with that of the collector is essential to the issuance of a valid license, refused to permit the grant to relator of the license sought. It does not appear that the discretion or judgment exercised was abused to the prejudice of the relator. The judgment of the circuit court is affirmed. Affirmed. Haralson, Dowdell, and Anderson, JJ., concur.