Co-Operative Junk Co. v. Board of Police Commissioners

California Court of Appeal Nov 15, 1918 No. Civ. No. 2746.Published

Before: Conrey

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Holding. The court held that the Los Angeles ordinance vests the board of police commissioners with discretionary power to grant or deny junk dealer permits, and therefore, the board's decision is not a ministerial act subject to a writ of mandate absent proof of abuse of discretion.

Issues

Whether the issuance of a junk dealer permit under the city ordinance is a ministerial act or a discretionary one.
Whether the complaint stated a cause of action for a writ of mandate when it failed to allege an abuse of discretion by the board.

Disposition. reversed

Quotations verified verbatim against the opinion

“the city of Los Angeles, in the exercise of its undoubted police powers, has determined that the business of junk dealer is one which requires constant police supervision, and that licenses to conduct such business shall not issue as of course”

“a court will not interfere with the discretion reposed in a proper board or tribunal, but will assume that official duty has been properly and lawfully performed, in the absence of positive proof to the contrary.”

Synopsis

Municipal Corporations—Los' Angeles—Licenses—Junk Dealers.— The city of Los Angeles, in the exercise of its police powers, had the right to determine that the business of junk dealer is one which requires constant police supervision, and that licenses to conduct such business should not issue as of course, but that the board of police commissioners should' examine every application and, determine whether the proposed place of business was appropriately located and the applicant a fit person to he permitted to conduct such business.

Id.—Mandamus—Pleadings.—A complaint in a proceeding seeking a writ of mandate to compel the hoard of police commissioners to issue a permit to the plaintiff to obtain from the city clerk a license to conduct the business of a junk dealer does not state a cause of action when it does not allege that the board or its members refused to hear the application upon its merits, or that they were actuated by malice or a desire to promote a monopoly or by corrupt motive.

Appeal — Judgment on Pleadings — Kecord-—Evidence not Considered.—Where upon an appeal from a judgment the record shows that the court abandoned the trial upon the facts and rendered judg- . ment upon the pleadings, the fact that the court heard evidence in the case cannot he considered.

CONREY, P. J.

The defendants appeal from a judgment awarding to the plaintiff a writ of mandate. Although the case went to trial upon the complaint and answer, the court did not make any findings of fact or conclusions of law, and the judgment seems to have been entered pursuant to a motion for judgment on the pleadings. The judgment states that the case came on regularly to be heard before the court sitting without a jury and that “witnesses for the plaintiff and defendant having been sworn and examined, whereupon counsel for petitioners moved the court for an order directing that a writ of mandate issue herein, upon the pleadings of the respective parties, and, now being fully advised in the premises, the court doth adjudge and, order that the defendants and each of them issue to the said Co-operative Junk Company of California a permit for a license to conduct a junk dealer business in the city of Los Angeles,” etc.

The plaintiff’s claim of right to a permit for a license to conduct the business of junk dealer in the city of Los Angeles is based upon a city ordinance, a copy of which is set out in the complaint. That is an ordinance regulating certain businesses, including the business of junk dealers and the business of junk collectors. It is provided that the city clerk shall not issue a license to any person to conduct the business of junk dealer until the board of police commissioners shall have granted a permit therefor; that any person desiring to obtain a permit to carry on that business shall file an application in writing therefor with the board of police commissioners, specifying by street and number the place where such business is proposed to be conducted; that it shall be unlawful for any person to carry on the business of junk dealer without first applying for and receiving a permit therefor in writing from the board of police' commissioners. The ordinance contains numerous regulatory provisions which the city council deemed to be appropriate in order that businesses of that kind might be conducted in accordance with public welfare.

The complaint shows that the plaintiff was a corporation duly organized for the purpose of conducting the business of

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junk dealer; that the plaintiff made and filed its application in writing for a permit, as required by the terms of the ordinance, and complied in all respects with the formalities necessary under the ordinance to bring its application before the board of police commissioners. It is alleged that the board of police commissioners denied the application of the petitioner and refused to issue a permit for the demanded license; that the petitioner demanded from the board an explanation of the reasons for such 'refusal, but the board refused to make any statement of such reasons; that the petitioner “is being discriminated upon and improperly oppressed by the said board of police commissioners.” There is no allegation that the board or its members refused to hear the application upon its merits, or that they were actuated by malice or by a desire to promote a monopoly or by any corrupt motive.

Co-Operative Junk Co. v. Board of Police Commissioners

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Synopsis

CONREY, P. J.

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