Opinion
(Decided 3 May, 1898.)
Action for Mandamus — Intoxicating Liquors — Liquor License — County Commissioners — Discretion.
Under section 34, chapter 168, Laws 1897, providing that county commissioners "may grant" an order to the sheriff to issue a license to sell liquors to all properly qualified applicants who have complied with the requirements therein mentioned, it is within the discretion of the commissioners to grant such order, and their refusal to do so cannot be reviewed on appeal.
MANDAMUS in DUPLIN, heard before Adams, J., at chambers at Clinton, N.C. in February, 1898.
Stevens Beasley and Jones Boykin for plaintiff (418) (appellant).
Allen Dortch for defendants.
This is an action of mandamus to compel the defendants to grant an order to the sheriff to issue a license to the plaintiff to retail liquors in the town of Magnolia, in the county of Duplin. There is a controversy in the record whether the plaintiff had the recommendation of the commissioners of the town as required by the recent law. In order to put this decision on the main question, we will (419) assume that he did.
In Muller v. Comrs., 89 N.C. 171, Ashe, J., collected minutely all the legislation on the subject from 1825 till 1883, showing the fluctuations of the legislative mind during that period. That case arose when the law (Code, sec. 3701) said that county commissioners "shall grant" the order to all properly qualified applicants who had complied with the requirements therein mentioned. The court there held, upon its own view of the law and upon the authority of Attorney-General v. Justices, 27 N.C. 315, that the commissioners do not possess the arbitrary power of suppressing retailing in toto, nor are they bound to grant license, although the applicant proves a good moral character. They have a limited legal discretion, and may consider all questions and matters which pertain to the welfare of the community. This Court sustained the refusal of the board to grant the application.
Laws 1897, ch. 168, sec. 34, amends the preceding act by substituting the words "may grant" for "shall grant" when the applicant has complied with the required provisions of the act.
In the agreed case sent to this Court we can see no arbitrary exercise of power, and as no reasons are assigned for the refusal to grant the order we have to assume that the defendants did so in the exercise of their discretion, which is not reviewable by the Court. This they may do under Laws 1897, ch. 168, sec. 34.
Affirmed.
Cited: Barnes v. Comrs., 135 N.C. 45.
(420)