Opinion
Department Two
Mandamus to R. H. Sinton, collector of licenses for the City and County of San Francisco.
COUNSEL
The Acts of March 23rd, 1878, and March 30th, 1878, are unconstitutional.
Robert Ash, for the Plaintiff.
Alfred Clark, and Hammond & Wright, for the Defendant.
If the act is constitutional, the applicant cannot procure a license thereunder without complying with its provisions; if unconstitutional, the license collector derives no authority to issue a license under it.
OPINION
The Court:
The plaintiff, upon his verified petition, obtained an alternative writ of mandamus returnable before this Court. The defendant demurred to the petition, on the ground that it does not state facts sufficient to constitute a cause of action. It is alleged in the petition that the defendant is the collector of licenses in the City and County of San Francisco, and as such is authorized to issue all State and county licenses required by law in said city and county. That the plaintiff, being desirous of entering into the business of retailing liquors, etc., applied to the defendant for a license, and was refused, on the ground that the defendant was not authorized to issue such a license without the written consent of a majority of the board of police commissioners of said city and county. That such is the requirement of the act of the legislature from which the defendant derives his sole power to grant licenses is not controverted. But the contention on the part of the plaintiff is, that the act is unconstitutional. If this be so, the demurrer must be sustained, on the ground that the defendant had no authority to issue the license demanded by the plaintiff. We cannot separate that part of the act which confers upon the defendant the power to grant licenses from that part which prescribes upon what condition alone a license may be issued by him. The mode and manner in this case very clearly constitute the measure of power; and if the defendant cannot issue a license in the manner prescribed, he cannot issue it at all. On the other hand, if the act be constitutional, the plaintiff must comply with it before he can rightfully demand a license. It follows, that the demurrer must be sustained.
Demurrer sustained, with leave to the plaintiff to amend his petition within ten days, if he should be so advised.
The Court:
The defendant has filed a demurrer to the plaintiff's amended petition. The original petition was demurred to, and the demurrer sustained. We think that the amended petition is obnoxious to the same objections as the original, to which we sustained a demurrer on the ground that it did not state facts sufficient to entitle the plaintiff to the writ prayed. The demurrer to the amended petition is, therefore, sustained, and it is ordered that the proceeding be and the same is hereby dismissed.