Opinion
Opinion filed November 7, 1933.
Intoxicating Liquors — Act of Special Session, 1933, No. 10, § 5 — Mandamus — Uses of Writ of Mandamus — Inapplicable To Enforce Performance of Judicial or Quasi Judicial Acts Requiring Exercise of Discretion — Discretion of Court in Granting Writ — When Mandamus To Enforce Mere Private Right May Be properly Refused — Mandamus Not Available To Enforce Act against Public Policy or To Work Public Mischief.
1. Act of Special Session, 1933, No. 10, § 5, amending Acts 1933, No. 140, § 7, respecting granting of licenses by control commissioners for sale of certain malt beverages and light wines, contrary not appearing, held to have been intended to change law by vesting in commissioners discretion as to whether licenses properly applied for should be granted, instead of such action being mandatory as provided in previous law.
2. Mandamus lies to enforce performance of ministerial acts, but not to enforce performance of judicial or quasi judicial acts involving exercise of judgment or discretion.
3. Where duty of control commissioners respecting granting of licenses for sale of certain malt beverages and light wines under Act of Special Session, 1933, No. 10, § 5, involved exercise of wise discretion quasi judicial in character, discharge of such duty cannot be controlled by mandamus.
4. Application for mandamus is addressed to sound judicial discretion of Supreme Court, and is not to be granted in all cases where right in applicant is made to appear.
5. Mandamus will be refused when sought for enforcement of mere private right, if circumstances make it unwise or inexpedient to grant writ.
6. Mandamus will not be ordered to enforce act against public policy or to work public mischief.
PETITION FOR WRIT OF MANDAMUS preferred to Supreme Court, Orleans County, seeking to compel the license control commissioners of Derby to issue plaintiff license to sell beer on its premises. Heard on report of special master at the October Term, 1933, of such Court. The opinion states the case. Petition dismissed with costs.
Pierce Miles for the petitioner.
Walter H. Cleary for the petitionees.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
By this petition, the plaintiff seeks to compel the defendants to issue to it a license to sell beer on its premises in the town of Derby. An answer was filed, and facts have been found by a commissioner appointed by a Justice of this Court pursuant to G.L. 2249.
We find, however, that the case is to be disposed of on a proper interpretation of the statutes. The town of Derby voted against granting licenses for the sale of malt and fermented beverages; and when this application was made to them, the defendants refused to grant it on the ground that the plaintiff's property was not such a hotel as is described in section 7 of No. 10, of the Acts of the Special Session of 1933; and on the further ground that, in view of the vote above referred to, they, the commissioners, did not want beer sold there.
By section 7, of No. 140, Acts of 1933, the control commissioners were required to grant licenses under certain conditions. But by section 5 of the act of the Special Session above referred to, this provision was so amended as to leave it to the discretion of the commissioners whether such licenses shall be granted or not. The original act was mandatory; the amendatory is permissive. And, while as we said in Walsh v. Farrington et al., 105 Vt. 269, 165 A. 914, 915, acts relating to the duties of public officers, permissive in form, are frequently construed to be mandatory in meaning, it is not so here. The act of the Special Session amended the former statute; and it must be taken, the contrary not appearing, that the Legislature in passing the amendment intended to change the law. City of Winooski v. Companion, 105 Vt. 1, 2, 162 A. 795. The change made by this amendment was to vest in the commissioners a discretion which was denied to them by the previous law.
Mandamus lies to enforce the performance of ministerial acts. Bankers' Life Ins. Co. v. Howland, 73 Vt. 1, 17, 48 A. 435, 57 L.R.A. 374; Clement v. Graham, 78 Vt. 290, 319, 63 A. 146, Ann. Cas. 1913E, 1208. It cannot be resorted to to enforce the performance of judicial or quasi judicial acts — acts involving the exercise of judgment or discretion. Sanborn v. Weir, 95 Vt. 1, 5, 112 A. 228; Walsh v. Farrington, supra. The duty which these defendants were called upon to perform when application was made to them for a beer license involved the exercise of a wise discretion, was quasi judicial in character, and the discharge of it cannot be controlled by mandamus. State v. Plumley, 83 Vt. 491, 493, 76 A. 146.
Moreover, an application for a mandate is addressed to the sound judicial discretion of this Court. Town of West Rutland v. Rutland Ry. L. P. Co., 96 Vt. 413, 420, 121 A. 755. It is not to be granted in all cases where a right in the applicant is made to appear. If circumstances are such as make it unwise or inexpedient to grant the writ, it will be refused when sought for the enforcement of a mere private right. Bogan v. Holder, 76 Miss. 597, 607, 24 So. 695; New York Mortgage Co. v. Secretary of State, 150 Mich. 197, 205, 114 N.W. 82; Cook v. Noble, 181 Cal. 720, 721, 186 P. 150. It will not be ordered to enforce an act against public policy or to work public mischief. Duncan Townsite Co. v. Lane, 245 U.S. 308, 62 L. ed. 309, 311, 38 Sup. Ct. 99.
The evils that may become incident to the sale of the beverages now made lawful, even, are or may become such as to involve the safety, morals, and peace of the whole community. Courts, therefore, should not, and this court will not impose upon a town a beer-shop which it has solemnly declared it did not want, and which its commissioners have decided it was unwise and inexpedient for it to have.
Petition dismissed with costs.