Richter v. Lightston

HENSHAW, J.

This action is for mandate against the treasurer of the city of San Jose to compel him to issue a quarterly license to maintain a saloon for the sale of intoxicating liquors on plaintiffs premises. Judgment passed for defendant and plaintiff appeals.

Plaintiff had been conducting the business of a saloon-keeper under a quarterly license issued by the city of San Jose. In December, 1907, the city passed an ordinance “establishing the limits within which retail and wholesale liquor licenses and transfers thereof will be granted.” This

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license ordinance fixed the district and streets within which and upon which such licenses could be issued and forbade the issuance of licenses without this territory and provided “that nothing herein contained shall prevent the renewal of any license to conduct a bar in any

bona fide

hotel at present existing within said limits.” This license ordinance by its terms was to take effect after the first day of July, 1908.

Plaintiff pleaded and the court found that on the fourteenth day of July, 1908, plaintiff procured from the treasurer of the city of San Jose a license to conduct a hotel upon the premises of plaintiff for the six months beginning July 1, 1908, and ending on December 31, 1908; that also on the fourteenth day of July, 1908, the board of health of the city of San Jose granted plaintiff a permit to conduct and maintain a hotel upon said premises and that this permit has not been revoked; all in conformity with the ordinances of the city. Plaintiff thereupon made demand upon the treasurer of the city to issue the license for the conducting of a liquor saloon in connection with the hotel and upon the treasurer’s refusal to do so this action in mandate was brought.

It is first contended that mandate should issue against the treasurer as of right, since the treasurer is vested with no discretionary power to issue or to refuse to issue such a license, and that the question of petitioner’s right thereto is settled by the issuance by the board of health of the permit to conduct the hotel and by the issuance following thereon of the license to conduct the hotel. The issuance of a license permitting one to conduct a hotel is in no sense a binding finding against municipal authorities that the place is, or is to be conducted, as a hotel. Still less does it estop them from declaring, if the facts shall warrant, that a hotel is not actually being conducted. For the same reasons no more force attaches to the permit of the board of health to conduct a hotel, which amounts to nothing other than a declaration that the premises are sufficiently sanitary to justify the issuance of a license for the indicated purposes. Municipalities may well provide for a method by which such disputed questions of fact can be determined. If such a method is not provided it does not become the imperative duty of the license officer to issue a license on demand. He must as the agent of the city be vested with certain discretionary powers and upon his refusal to