Pavilion Ice Rink v. Bryant

NOURSE, J.

Plaintiff filed its petition for a writ of mandate to require the defendant Bryant, as tax collector, to issue a license, and the other defendants, as members of the board of police commissioners, to issue a permit to continue the conduct of a dancing pavilion in the premises known as the “Winter Garden” and located on the corner of Pierce and Sutter Streets, San Francisco. A general demurrer to the petition was sustained without leave to amend and judgment followed denying the application and dismissing the proceeding.

The petition alleged that the plaintiff was in possession of the premises under a lease running until August 1, 1926; that on the first day of June, 1918, acting under the ordinances enacted by the board of supervisors, the police commissioners granted to petitioner a permit to conduct a

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dancing pavilion in the premises, and that this permit had been renewed without protest on each succeeding quarter thereafter until January 1, 1921; that the commissioners refused to renew the permit for the quarter commencing on that day, giving as a reason therefor that the premises were located in a residence district; that in truth and fact the premises were not located in a residence district; that the street on which the premises were located was a business street; that the locality had not changed since the original permit had been granted except that, since said time, it had assumed more of a business character from day to day; that in fact there was only one residence in the block in which said premises were located, and the residents thereof consented to the maintenance of said business; that the declaration that the premises were located in a residence district “was a sham and a pretense, and not based upon the fact or the truth, all of which is and was well known to the members of the said board, and that the said board and the members thereof, well knew that the said district surrounding the plaintiff’s place of business, and the street upon which it faces were, and are not a residence district, or a residence street, and in this behalf plaintiff avers that said declaration was made for the purpose of affording the said board and its members an excuse to arbitrarily, maliciously, oppressively, unreasonably and unlawfully destroy plaintiff’s business and impair plaintiff’s contract of lease, and to cause plaintiff great and irreparable injury.” It was further alleged that the refusal to renew said permit was in deference to a protest filed with the commissioners based upon a popular hue and cry against the “Winter Garden” as a place where “Howard Street Gangsters” met their victims, and that though the police commissioners, after a hearing, affirmatively found that those grounds of protest were untrue, they, nevertheless, refused to issue the permit unless the protestants would formally withdraw their protest; that when this was refused, the police commissioners devised the pretense of denying said permit on the ground that said premises were in a residential district; that this action was arbitrary, capricious, and unreasonable; that it discriminated against plaintiff and in favor of other proprietors of similar pavilions located in districts which are of a far more