Opinion
March 21, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Chris J. Eliopulos, Sp. Asst. Atty. Gen., Denver, for plaintiff in error.
Harold L. Meadoff, Denver, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was transferred from the Supreme Court pursuant to statute. Error is asserted to a judgment of the trial court which ordered plaintiff in error, John Heckers as State Licensing Authority (Heckers), to issue a state liquor license to defendant in error, Avanti Corporation (Avanti).
The Town of Vail granted a liquor license to Avanti. On certiorari to the district court this action was affirmed in the case of Casino Vail v. Avanti. That decision was not appealed. Thereafter Avanti applied to Heckers for a state license. After investigation, but without a hearing, Heckers refused to grant the state license on the ground that avanti had failed to establish that existing outlets were inadequate to serve the requirements of the neighborhood. Avanti sought review of this action, by certiorari, in the district court on the ground, among others, that the refusal to issue a license was arbitrary and an abuse of discretion. The trial court so held and ordered the license to be issued. The license was then granted.
At oral argument before this court Heckers conceded that the judgment directing the issuance of the license was correct. The judgment is therefore affirmed. Additional issues were raised in the briefs relative to the power of the state licensing authority to determine the requirements of the neighborhood and to refuse a license on the basis of that determination after the local licensing authority had authorized the issuance of a license, and after that authorization had been affirmed by a court.
Since there is no longer a real controversy existing between the parties those issues have become moot. See Reserve Life Insurance Co. v. Frankfather, 123 Colo. 77, 225 P.2d 1035, and Arnold v. Carey, 60 Colo. 499, 158 P. 303. Although the parties admit the issues are moot in the present case, they ask us to rule on them on the ground that they are of great public importance. These issues do not so qualify, and we decline to consider them in this case. See Parker v. People ex rel. Woods, 135 Colo. 206, 309 P.2d 605.
Since an issue as to costs remains to be determined, it would be improper to dismiss the writ of error as is frequently the case when issues become moot. See Grant Investments Co. v. Fuller & Co., 171 Colo. 91, 464 P.2d 861.
The record designated by Heckers did not include a reporter's transcript. Avanti filed a supplemental designation which included the reporter's transcript in the case of Casino Vail v. Avanti, in which Heckers was not a party, and the reporter's transcript in the present action. The cost of both transcripts was assessed to Heckers over his objection that the transcripts were duplicitous and unessential to a complete understanding of the controversy. Both transcripts are devoid of any testimony and consist solely of arguments of counsel. C.A.R. 39(a) provides, as pertinent hereto, '. . . (I)f a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; . . ..'
The transcript in the instant case is not unessential. However, the transcript in the Casino Vail case was wholly unessential. Under R.C.P.Colo. 112(b) the cost therefor should have been taxed to Avanti.
Following the procedure in Grant Investments Co., supra, the judgment is affirmed and the order taxing the cost of the reporter's transcript in the case of Casino Vail v. Avanti to Heckers is reversed and the cause remanded with directions that such costs be taxed to Avanti.
COYTE and PIERCE, JJ., concur.