Salaney v. Ferris , 201 Okla. 236 ( 1948 )

ARNOLD, J.

Original application by J. C. Salaney for writ of certiorari to review the action of Clarence W. Hunter, county judge of Kiowa county, and the action of Weldon Ferris, district judge, on appeal from the county court, in denying the application of petitioner for license to sell nonintoxicating beverages in the town of Snyder in that county.

Petitioner, on June 24, 1947, made application to the county judge of Kiowa county for a retail dealer’s permit to sell nonintoxicating beverages as defined by law on the property described as lot 1, block 79, in the original townsite of Snyder, Okla.; that an order was entered setting said matter for hearing July 1, 1947, and that due notice of such hearing was given as required by law; that upon said hearing petitioner adduced evidence before the county judge establishing all of the qualifications required by law for the issuance to him of said license; that certain citizens of the town of Snyder also appeared at said hearing in protest against the issuance of said license; that at the conclusion of said hearing the county judge found that petitioner possessed all of the statutory qualifications which entitled him to such a license, but found that by reason of extraneous matters introduced in evidence by protestants that it was not in the public interest for such license to be issued, and entered his order refusing such license; that exception was taken to said order and judgment, and after notice of appeal an appeal was perfected to the district court of Kiowa county where the matter was again heard by the district judge on August 6, 1947; that at said hearing in the district court the judge found and determined, as did the county judge, that petitioner possessed all of the statutory qualifications entitling him to the issuance of such license, but upon substantially the same evidence as to extraneous matters as that presented to the county judge, the district judge entered his order and judgment affirming the order and judgment of the county judge in refusing such permit.

It being provided in the statute under which these proceedings were had that the district court should have final appellate jurisdiction, petitioner has filed his application in this court to assume original jurisdiction and to issue the writ of certiorari to review these orders and judgments and attaches to such application his formal petition for the relief sought.

The statute under which these proceedings were had and which is involved in this application is section 11, ch. 2, Title 37, S.L. 1947, which reads:

“It shall be unlawful for any person, or persons, to maintain or operate any place where nonintoxicating beverages, as herein defined, are sold for consumption on or off the premises without first securing a permit issued by the county judge in and for the county wherein such premises are located. The person applying for such permit must make a showing once a year, and must satisfy the county judge that he is a person of good moral character; that he has never been convicted of violating any of the laws prohibiting the traffic in any spirituous, vinous, fermented or malt liquors, or of any of the gambling laws of the State, or any other State of the United States, within three (3) years immediately preceding the date of his application, or any of the laws commonly called ‘Prohibition Laws’, or had any permit or license to sell nonintoxicating liquors revoked in any county of this State within twelve (12) months; and that at the time of his application for a license, he is not the holder of a retail liquor dealer’s permit or license from the United States Government to engage in the sale of intoxicating liquor. Nor shall any permit be issued to sell nonintoxicating beverages in any place, location or address, for which there is outstanding license or permit from the United States Government. A fee of Five Dollars ($5.00) per year shall be charged by the county judge for the issuance of such permit, which fee shall be deposited in the county court fund. Upon application being filed, the county judge shall give five (5) days notice by posting such notice, one (1) oí said notices to be posted in the county-court house and three (3) of said notices in the city or township wherein said beverages are to be sold, one (1) of which shall be plainly exhibited by posting on the front of the building in which said nonintoxicating beverages are to be sold; and a copy of said notice shall also be mailed to the county attorney, the sheriff, and the chief of police or marshal of any city or town in which said business is to be operated. Said notice shall contain the name of the applicant and the location of said place of business. Any citizen of said county may appear before the county judge in protest of the issuance of said permit; provided, that any person feeling himself aggrieved by the decision of the county judge upon any matter involved in this Act, shall have the right of appeal to the district court of such county, upon the same terms and provisions as now relate to appeals in probate matters. The district court shall be vested with final appellate jurisdiction. If an appeal is taken, as herein provided, the county judge may suspend such permit pending final determination of the appeal by the district court.”

A statute and a fact situation almost identical with those presented here was considered b3r this court in the pool hall license case of Nicodemus, Mayor of the City of Drumright, et al. v. State ex rel. Parker, 82 Okla. 152, 198 P. 847. The statute there considered was section 2, ch. 21, S.L. 1915, which reads:

“It shall be unlawful for any person or persons, or corporation to maintain or operate a public pool or billiard hall, or any public pool or billiard table, in any incorporated city or town, without first securing license issued by the county judge. The person applying for such license must make a showing once each year, and satisfy the county judge that he is a person of good moral character; that he has never be.en convicted of violating any of the laws prohibiting the traffic in any spirituous, vinous, fermented or malt liquors, or any of the laws commonly called ‘prohibition laws’, or convicted of violating any of the gambling laws of the state; or has paid the special liquor dealers’ tax to the United States, and must make further proof that no special liquor dealers’ tax stamps or receipt issued by the United States is held by any person occupying that part of such building in which the pool or billiard hall is to be operated. A fee of five dollars per year shall be charged by the county judge for the issuing of such license. Upon application being filed, the county judge shall give five days’ notice by posting notices, one of said notices to be posted at the county courthouse and three in the city or town where said pool hall shall be located. Said notice shall contain the name of the applicant and the location of said pool or billiard hall. Any citizen of said city or town may appear before the county judge and. protest the issuance of said license. Any person violating any provision of this section shall be punished by fine not less than twenty-five dollars nor more than one hundred dollars, for each offense.”

It will be noted that the statutory qualifications for a license under that act are almost identical with those under the act here involved, the only difference in the fact situation being that upon satisfactory proof that applicant possessed the statutory qualifications the county judge issued a license. Thereafter, in conformity with an ordinance of the city of Drumright, applicant filed with the city clerk his application for license and deposited with the city clerk the sum of $140 which was the fee required upon such application. The mayor of the city upon a hearing held on said application refused the same for reasons extraneous of the statutory qualifications, just as the county judge and the district judge did in the instant case.

County courts in this state, except in probate matters, are courts of limited jurisdiction and no act or judgment of such court in excess of and beyond the jurisdiction expressly conferred by law is valid. The district court on appeal has no greater jurisdiction nor any broader authority than had the county court from which the appeal was taken. In the case above cited the mayor acted in a quasi judicial capacity in refusing the license and this court held that where the applicant had brought himself strictly within the provisions of the statute so as to be entitled to a license, the action of the mayor in refusing the city license was in excess of his jurisdiction and that its issuance would be compelled by mandamus. Since both the county judge and the district judge judicially determined that petitioner possessed all of the statutory qualifications entitling him to a license, including good moral character, the limit of their jurisdiction under the specific provisions of the statute had been reached and the denial of a license for reasons extraneous to those prescribed by law were not judicial acts because of a lack of power and authority vested in them under the act to so determine.

It must have been obvious to the Legislature, as it is to us, that on the initial hearing upon the application for a license no competent proof could be adduced that petitioner’s business, when established, would not be conducted in a lawful manner and without creating a nuisance. Realizing the imperative duty which it had imposed upon the county judge to issue a license when the statutory qualifications were found and determined to be possessed by an applicant, in order to provide against a situation which might result by reason of the necessary absence of any proof as to how petitioner’s business would be conducted when established, the Legislature went a step further and provided that the county judge may at any time upon five days’ notice revoke a license for violation of any one of the five essential requirements to the holding of a license and for the additional reason that petitioner had allowed minors to purchase nonintoxicating liquor in his establishment and no duration of time during which the business is conducted was fixed, so that petitioner’s license might be revoked and his place of business closed at any time on five days’ notice upon proof of any one or more of the six grounds made the basis for such revocation.

By section 3 of chapter 21 of the 1915 Act, supra, provisions for revocation' of a pool hall license were made which are identical with those contained is the act now under consideration. It is thus seen that the Legislature in both acts had in view the compelling of an orderly conducted business after the issuance of the license, made necessary by the impossibility of making competent proof in advance of the manner in which the business would be conducted.

That the exercise of this power of revocation was intended by the Legislature to be used promptly upon the existence of any of these grounds for revocation is shown by the further requirement made by the Legislature that the county judge shall make monthly reports to the Tax Commission showing his licenses issued or revoked.

Aside from authorities defining the purpose and scope of the writ of cer-tiorari, both sides in their briefs cite and rely only on authorities from other jurisdictions which present analogous situations, but the conflict in those authorities demonstrates the necessity for basing our decision herein on the exact language of our statute and our established public policy. It may not be concluded that the authorities from other jurisdictions are based upon statutes identical in language with our own or that public policy is the same as ours.

Where the language of a statute is clear and unambiguous and is within constitutional limitations, it may not be amended by judicial interpretation to include extraneous matters not within the contemplation of the Legislature in the enactment. That the Legislature did not intend that on an initial hearing for a license, after full and satisfactory proof that the applicant possessed the statutory qualifications, the county judge might refuse a license upon proof of what some other license holder did in years past, is clear.

Upon a consideration of the language of our statute here involved and the holding of this court in the Nicodemus case, supra, we feel impelled to hold that the county judge and the district judge, on appeal, went outside of and beyond their jurisdiction in denying petitioner’s application upon matters not authorized by the Legislature to be considered by them upon the initial hearing on application for a license.

The scope and purpose of the writ of certiorari has been so well defined in numerous decisions of this court that we have no difficulty in reaching the conclusion that this case comes well within the scope and purpose of the writ; since it is admitted by protestants, as shown by the journal entry of the judgments of the county and district courts, that the denial of the license was based solely upon extraneous matters, such as the distance of Snyder from the county seat, the limited amount of police protection, and the failure of such establishments in Snyder in past years to be properly operated and maintained, which we hold was beyond the discretion, jurisdiction, and power of said courts under the provisions of the licensing act, it is unnecessary to order the record certified to this court. Walker v. Womack, County Judge, 181 Okla. 34, 72 P. 2d 510.

The judgment of the district court is vacated, set aside and held for naught and the judgment of the county court is reversed, with directions to issue the license.

DAVISON, V.C.J., and WELCH, GIBSON, and CORN, JJ.,. concur. HURST, C.J., and RILEY, J., dissent.