Doesn't & remors uc!. Is to suspend during inverter. in haw Notes 146-7

Ch. 2)

ADMINISTRATIVE DISCRETION.

67

decide, and his decision is final. But whether the cause assigned constitutes, of itself, as matter of law, ground for removal, is a question for this court to determine. In the present case the cause assigned was "the good of the service," and manifestly, it seems_to us, that was good ground for removal. The natural inference would be that in some respect the petitioner had failed to perform his duties, or was incompetent or inefficient, or was an unsuitable person for the position to which he was appointed. If the charter provided, as in the New York cases relied on by the petitioner (People v. Mayor, etc., of New York, 19 Hun, 441; Same v. Nichols, 79 N. Y. 582; Same v. Board of Fire Com'rs of City of New York, 12 Hun, 500), that removals should be "for cause, and after an opportunity to be heard," no doubt he would have been entitled to a particular statement on the grounds embraced in the cause assigned. But we do not see how it can be said that the cause assigned is not in law a ground for removal.

The result is that we think that the petition should be dismissed. So ordered.

R66

HARRISON, MAYOR, et al. v. PEOPLE ex rel. RABEN.

(Supreme Court of Illinois, 1906.222 Ill. 150, 78 N. E. 52.) Mandamus by the People, on relation of Henry Raben, to compel Carter H. Harrison and others, as Mayor, City Clerk, and City Collector of the City of Chicago, to issue a dramshop license to relator. From a judgment of the Appellate Court, affirming a judgment, awarding the writ, respondents appeal. Reversed.

The people, on the relation of Henry Raben, filed a petition in the superior court of Cook county against the appellants, as mayor, city clerk, and city collector of the city of Chicago, for a writ of mandamus to compel them to issue to the relator a license to keep a dramshop at 345 East Division street, in said city. The respondents answered the petition, and upon a hearing the court awarded the writ as prayed. On appeal to the Appellate Court for the First District that order was affirmed, and the respondents now bring the case to this court by a further appeal.

The case was heard in the superior court upon an agreed state of facts, as follows:

"The only ordinance of the city of Chicago regulating the matter of granting licenses to keep dramshops is the following:

"1175. The mayor of the city of Chicago shall from time to time grant licenses for the keeping of dramshops within the city of Chicago to persons who shall apply to him in writing there for and shall furnish evidence satisfying him of their good character. Each

Fr. 212,644

"gung trouch

■See, also, Re Guden, 171 N. Y. 529, 64 N. E. 451 (1902). Ser of rx. removed a sheriff after fung ater how ing on charges of misconduct prior to his electro as shareff & appt a new sheriff who took p2 of the books +paperage the office. The deposed sheriff brot fedceeds C.CP. to regain pelaming his remon was viol of St const's The Constrofy. gave the porn of removal to the rou. on a copy of the charges vs huu, an oppy of being heard in his defena. Held this pub exex2 sons of removal begond review by ct except (per offrien) as to the power for jurisdn. ie. charge made, notice theory. •gn of whether the charge was a charge of the Const (This was- W. that the sheriff turned on the

meaning

4

applicant shall execute to the city of Chicago a bond, with at least two sureties to be approved by the city clerk or city collector, in the sum of $500, conditioned that the applicant shall faithfully observe and keep all ordinances in force at the time of the application or thereafter to be passed during the period of the license applied for, and will keep closed on Sundays all doors opening out upon any street from the bar or room where such dramshop is to be kept, and that all windows opening upon any street from such bar or room shall on Sundays, except between the hours of one o'clock a. m. and five o'clock a. m., be provided with blinds, shutters or curtains, so as to obstruct the view from such street into such room. Nor shall any windows be painted or covered in any manner so as to obstruct the view from such street into such room. No application for a license shall be considered until such bond shall have been filed.'

"It is admitted that the petitioner made his application for a license to keep a dramshop at the place in question, and that in so doing he did everything required of him by the laws or ordinances; that no question was or is made of the sufficiency of the bonds tendered by petitioner, or of his good character; and that his application was refused solely because the place where he proposed to keep his dramshop is immediately next to the grounds of the Lyman Trumbull School, one of the public schools of the city, the mayor being of opinion that he has a right to refuse a license when, in his judgment, the place in which it is proposed to keep a dramshop is one where a dramshop will be a detriment and an injury to the neighborhood and offensive to the best interests of society. It is further admitted that the south school building has not been used regularly in the past two years; that it has not been used but two or three times, though it is ready for use; that some of the rooms in the north school building are not used, as there are not enough scholars to require the use of the whole building; that the property is held for school purposes and intended for use as a school, and that the location of the proposed saloon with reference to the school and the surroundings is truthfully set out in the following plat."

The plat referred to is immaterial in the decision of the case. WILKIN, J. (after stating the facts). The only question presented by this record for our decision is whether, under the ordinance set forth in the foregoing statement of facts, the mayor of the city of Chicago is authorized to exercise a discretion in the granting of a license to keep a dramshop, or whether, on the presentation of an application for such a license showing that the requirements of the ordinance have been complied with, he is compelled to grant the license.

It must be conceded that the business of keeping a saloon or dramshop is one which no citizen has a natural or inherent right to pursue, but is the subject of legislative restriction, regulation, and control. Schwuchow v. City of Chicago, 68 Ill. 444. Of course,

where an ordinance authorizes the issuing of a license to keep a dramshop upon certain terms and conditions, the authorities authorized to grant the license cannot arbitrarily refuse the same, nor discriminate between persons, places, and regulations pertaining to the business, without reasonable grounds therefor. Zanone v. Mound City, 103 III. 552. We are, however, of the opinion that there is vested in such authorities, unless expressly restricted by the language of the ordinance, a discretionary power, which may be reasonably exercised in the granting or refusing to issue a license.

The question does not seem to have been directly passed upon by this court, but the authorities from other states fully sustain this reasonable construction. In many of these cases the language of the law or ordinance authorizing the granting of the license is that, upon the doing of certain things, the licensing officer or body shall grant the license; but the decisions are to the effect that, nevertheless, a discretion exists in such officer or body, and that they will not be compelled to issue a license when in their discretion, reasonably and fairly exercised, the license has been refused. Leigton v. Maury, 76 Va. 865; People v. Board of Excise, 91 Hun, 94, 36 N. Y. Supp. 678; Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. A. 580; Attorney General v. Justices, 27 N. C. 315; Muller v. Commissioners, 89 N. C. 171; Hillsboro v. Smith, 110 N. C. 417, 14 S. E. 972; Perry v. Salt Lake City, 7 Utah, 143, 25 Pac. 739, 998, 11 L. R. A. 446; Eslinger v. East, 100 Ind. 434.

This question was before the Appellate Court for the First District in the case of Swift v. People, 63 Ill. App. 453, and that court, in a well-considered opinion, held that the mayor of the city of Chicago could not be compelled by mandamus to issue a license to keep a dramshop in a neighborhood occupied almost exclusively by residents, and where a saloon would be a nuisance.

The trial court in this case held propositions of law to the effect that the mayor had the right to exercise a discretion in granting or refusing the license, among others the following: "It is within the mayor's right to refuse to grant a license to keep a dramshop at a place where it will be so close to a school as to be a detriment and injury to the neighborhood or offensive to the best interests of society." Notwithstanding this holding, which we think a correct announcement of the law, the writ was granted. The judgment could only be reconciled with the holdings as to the law of the case, upon the theory that the discretionary power vested in the mayor had been abused. But that position is untenable. By the stipulation it is agreed that the relator sought a license to keep his saloon immediately next to the grounds of the Lyman Trumbull School, one of the public schools of the city. The mayor was of the opinion that he had a right to refuse a license when in his judgment the place in which it is proposed to keep a dramshop will be a detriment and in

or. Grainances of m.c. entitled every man who complies c. meer porrs ns to a retail lequor license. Trustees of alies have no porn except! that given them by expres prorrors of laws, & we find no poroor in any of Riese ordinances vesting in them discrets as to the franty ordenya au appl" for a liquor liceuse. In the absence of some express legist = inactment frauting fuck it there is no principle of law

ADMINISTRATIVE POWER AND ACTION.

(Part 1

jury to the neighborhood and offensive to the best interests of so-
ciety.

It is true that it is stipulated that the school building has not been
used regularly in the past two years, though it is ready for use,
and that some of the rooms in the north school building are not
used, as there are not enough scholars to require the use of the whole
building. Both school buildings are on the same grounds, and it
is agreed that the purpose is to establish a saloon in the immediate
' vicinity of these school buildings and the playgrounds. We appre-
hend that no one will seriously contend that a saloon adjacent to or
in the immediate neighborhood of public schools will not tend, in
a greater or less degree, to demoralize and disturb school children.
We are clearly of the opinion that upon the facts in this case there
was no such abuse of discretion on the part of the mayor as would
justify the courts in compelling him to grant the license applied
for.

The judgment of the Appellate Court will be reversed, and the cause will be remanded to the superior court, with directions to dismiss the petition.

Judgment reversed.

Sue of Chanya brancal ppias

SECTION 9.-CONSIDERATIONS GUIDING DISCRETION

2 REG. v. BOTELER et al.

(Court of Queen's Bench, 1864. 4 Best & S. 959.)

Poland obtained a rule on behalf of the Board of Guardians of the Bridgend and Cowbridge Union, calling upon Robert Boteler and John Samuel Gibbon, Esquires, justices of the peace for the county of

Accord: Muller v. Com'rs of Buncombe Co., 89 N. C. 171 (1883). See, also, F. 65°2 People ex rel. Schwab v. Grant, 126 N. Y. 473, 27 N. E. 964 (1891).

The list of N.y. Req" disclosed
intent to confer a dise
Down on mayor in case
of auctioneer's licenses

Fru.652

In other cases, in accordance with the terms of the statute, the issue of the liquor license has been held to be a ministerial duty. State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601 (1883); McLeod v. Scott, 21 Or. 94, 26 Pac. '• 7" 1061, 29 Pac. 1 (1891); Henry v. Barton, 107 Cal. 535, 40 Pac. 798 (1895),× ✓

In New York, the liquor tax law of 1896 (Laws 1896, c. 112) made the right to sell liquor independent of any administrative discretion. See section 19 of act as amended in 1897 (Laws 1897, c. 312); People ex rel. Belden Club v. Hilliard, 28 App. Div. 140, 50 N. Y. Supp. 909 (1898)9//

Discretion as to renewal of licenses, see the elaborate opinions in Sharp v.
on non renewal Wakefield [1891] App. Cas. 173. The matter was subsequently dealt with by
the English Licensing Act, 1904. See article on Property in Licenses, 24 Law

Compeus?
except for musbehavior of Quarterly Review, 49.
unfitnes

Further, regarding the judicial control of administrative discretion, see cases under mandamus.

The word "may" is often construed as "shall." See Mason v. Fearson, 9 How. 248, 13 L. Ed. 125 (1850); Lewis' Sutherland, Statutory Construction, §§ 634-640.

that will allow the trustees to say that a lignor license shall be panted to a he same rt demes to B. Here the ri's refuses say, it was their honest belief that the welfare & food order of decily reqs such acti.. not cited to sound)

1. M.C. case. Refused!! enough liceuses, weath on st leaf to eluurch. Achille a health resort. Only re oft ofact was food moral charades. Applct complied wild even thons express grant of discrets "the very requiring a license, the presence of so many magistrates at thing of it unport a duty of

10

ary's new arscusses plc. In Regu Bolder où justice

ADMINISTRATIVE DISCRETION.

en qn was

that proper not to enforce the law"! they considered that the Act unjerst principle the Ct of Q B compelled theme by a peremploy order to do the act who nevertheles the statute had said was in their discret to do or leave verseers who were req° // stats to certify whither applick for find one to a queue withe case of licenses were real resists ahway. 2) bygd they were not entitled to refuse the eff on the god that in thisgi apension there were alread too many publ. ho! that the beer stop was not reg. So a discretion whexpon Glamorgan, and Robert Charles Nicholl Carne, overseer of the poor ered justices to frant of the parish of Nash, in that Union, to show cause why the saidlecules to innkeepsa justices should not issue their warrant to levy, by distress and sale the exercise of their of the goods and chattels of the said R. C. N. Carne, the sum of diet they deemed £14. 11s., the amount ordered by the guardians of the poor of the proper wd not he exer Union to be paid by him from the poor rates of the parish, towards cd by coming to a the relief of the poor thereof, and as the contribution of the parish fent resolumn to refuse a license to every bor

to the common fund of the Union. * * *

Carne having refused to obey the order, the guardians obtained who wd not consent' a summons against him under St. 2 & 3 Vict. c. 84, § 1. Upon to take out an excise the hearing of the summons, on the 6th October, 1863, he appeared in liceuse for the pale of person, and, evidence having been given in support of the application,

Carne contended that the proof of notice to him of his appointment Spirits Regr Sylveste
as overseer of the parish of Nash was not sufficient, but the jus- 314J MC93′′
tices decided that it was. Carne did not produce any evidence, but
contended that, as the parish of Nash had not at that time any
paupers chargeable to it, it was unjust and unreasonable that the
ratepayers thereof should be called upon to pay anything towards
the expenses of the Union; that it was in the discretion of the jus-
tices whether payment of the contribution should or should not be
enforced; and urged upon them that, as the order for contribu-
tion was unjust, they should exercise that discretion and refuse to
enforce payment. The justices, addressing Carne, said: "We have
given the matter our best consideration and think you have shown
sufficient cause to justify us in refusing the warrant." They then,
at the request of Carne, added to their decision a statement that they
refused the warrant in the exercise of their discretion.

St. 2 & 3 Vict. c. 84, § 1: "In every case in which any contribution
by overseers or other officers of any parish of monies required by the
board of guardians or persons acting as guardians for such parish, or
for any Union which shall include such parish for the performance of
their duties, shall be in arrear, it shall be lawful for any two jus-
tices acting within the district wherein such parish shall be situate,
on application under the hand of the chairman or acting chairman
of such board, to summon the said overseer or other officers to
show cause, at a special sessions to be summoned for the purpose,
why such contribution has not been paid, and after hearing the
complaint preferred under the authority of such chairman or act-
ing chairman, and on behalf of such board, if_the_justices at such
sessions shall think fit, by warrant under their hands and seals to
cause the amount of the contribution so in arrear, together with
the costs occasioned by such arrear, to be levied and recovered from
the said overseers or other officers, or any of them, in like manner
as monies assessed for the relief of the poor may be levied and
recovered, and the amount of such arrear, together with the costs
as aforesaid, when levied and recovered, to be paid to the said board.”

After utg cases... "These cases fully sustain the doctrine that what a public corp = or or is empowered to do for others it is deceficial to them to have done the lawsholds he ought to do. The power to conferred for their benefit nothis; the intent of the legislature, whe is to test in muse cases, secums under euch encumst? to have been to impose a positive & absolute duty":" Of ace Estate of Ballentine (873) 45/696 Provion of Probate act.. the may ketapart for the use of trust or of or the minor chuld or chuldom of the deceased all pers? prop oc" The word may act apart - do not leave the matter to Redusert of the Prob. Judge The word 'may' in pual stabites is often used for mustor shall is construed imperatively. No/72.78 Code provides Bd of visors may order refund of saveserroneous collected and must.

of also shall direction is C. Appals.