Hayes v. Board of Trustees

SHAW, J.

This is a proceeding instituted by appellant for a writ of prohibition against the board of trustees of the

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city of Oceanside requiring it to desist and refrain from making an order granting a license to one Hale Backensto to sell intoxicating liquors at retail in said city. In accordance with the prayer of the petition, an alternative writ was issued directed to said board and requiring it to show cause why it should not be restrained from issuing said license. Respondents demurred to the petition upon the grounds, among others, that the petition did not state facts sufficient to entitle petitioner to the writ as prayed for, and that the court had no jurisdiction of respondents or the subject matter of the action. The demurrer was sustained. Petitioner elected to stand upon his petition, whereupon the court rendered judgment dismissing the petition and denied the writ.

Oceanside is a municipal corporation of the sixth class, and by its board of trustees duly adopted an ordinance providing for the granting of licenses to sell intoxicating liquors in said city, which ordinance, among others, contains the following provisions:

“Section 7. No license to sell intoxicating liquors shall be ordered or authorized to be issued by the board of trustees unless prior thereto the applicant for said license shall have filed in the office of the City Clerk of said county an application for such license, signed by five resident freeholders of said city, residing or doing business within twelve hundred feet of the premises where said intoxicating liquor is proposed to be sold, stating that the applicant is a sober and suitable person to conduct the business of selling intoxicating liquors, and describing the place where said business is to be carried on.

“Section 8. Upon the filing of an application as required in Section Seven, the board of trustees shall investigate the qualifications of the applicant and the suitability and fitness of the premises in which the proposed business of selling intoxicating liquor is to be carried on, and unless it shall affirmatively appear that the applicant is a suitable person, and the premises are fit and in a suitable location for the said business, said application shall be denied.”