Opinion
15467.
MAY 10, 1946.
Mandamus. Before Judge Fort. Taylor Superior Court. February 2, 1946.
R. S. C. W. Foy, for plaintiff.
C. C. Pittman and Jared J. Bull, for defendants.
Mandamus lies against an officer to require the performance of a clear legal right. A petition for the writ of mandamus against county commissioners, as the governing body of a county, to require them to accept and pass on an application for a permit to engage in the sale of domestic wines, foreign wines, and malt beverages, or any of them, but which fails to allege that the petitioner or any other person has presented, or desires to present, such an application, fails to state a cause of action and is properly dismissed on general demurrer for that reason.
No. 15467. MAY 10, 1946.
Harmon brought mandamus against James, Brown, and Cooper as the three members comprising the Board of Roads and Revenues of Taylor County, Georgia. His petition alleged: that he was a citizen, taxpayer, and patron of the public schools of that county, and as such was interested in the enforcement of law in his county: that wine, domestic and foreign, also beer, could be legally sold in the county, but none was being sold within the corporate limits of any municipality of the county; that it was the duty of the county commissioners, as the governing body of the county, to receive applications for licenses to sell, at retail, wine, domestic and foreign, also beer, and within their discretion to either grant or refuse the same; and that the commissioners at their regular January 1, 1946 meeting, passed a resolution that no applications thereafter for licenses to sell such beverages would be received and/or granted. He prayed for process and that the commissioners be required to accept and pass on all applications from those who might propose to carry on the business of selling at retail the beverages mentioned in his petition or any of them.
After a mandamus nisi issued, but before final hearing, seven other persons alleging themselves also to be citizens and taxpayers of Taylor County presented their petition for intervention and alleged: that they were interested in the subject-matter of the suit and in the enforcement of law, and prayed that they be allowed to intervene and be made parties to the cause. Over the objection that these petitioners were not proper parties to a mandamus proceeding, the court granted an order allowing the intervention and made the intervenors parties. The intervenors then demurred generally to the petition on the ground that it stated no cause of action and on three grounds of special demurrer. The commissioners also demurred generally to the petition by adopting the ground of general demurrer made by the intervenors. All of the demurrers appeared on the same sheet of paper. The commissioners also filed a joint answer, to which the plaintiff demurred.
After a hearing on the demurrers, the court overruled the demurrer to the answer, sustained the demurrers to the petition, and dismissed the suit. The petitioner excepted to the order allowing the intervention, to the order overruling his demurrer to the answer, and to the order sustaining the demurrers to his petition.
1. Nowhere in the petition is it alleged that the petitioner or any other person has filed, or desires to file, any application for a permit to engage in the retail sale of any of the beverages mentioned in the petition. So far as the record here discloses, such application may never be filed. "Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless; nor will it be granted on mere suspicion or fear, before a refusal to act or a wrongful act done." Code, § 64-106. In Smith v. Hodgson, 129 Ga. 494, 497 ( 59 S.E. 272), this court said: "The writ if granted should be effectual as a remedy, and if the status would not be changed, a wise judicial discretion would justify its refusal. The court will refuse this extraordinary remedy when it will prove unavailing, and when no result will be accomplished, or the status changed by its issuance." Unless some one desires to make an application to the commissioners for a permit to engage in the sale of the beverages mentioned — and the petition here does not allege that any one does — and to have them hear and consider such application, the granting of the writ here would be useless and no result accomplished. We think that, when such an application has been presented and its acceptance refused, or when a permit to engage in the sale of such beverages has been denied, except for proper cause or in abuse of the discretion vested in the commissioners, such a time will be soon enough to apply for the writ of mandamus. Until then, "sufficient unto the day is the evil thereof" should be applicable. Before mandamus will issue, the law must not only authorize the act to be done, but must require its performance ( Hart v. Head, 186 Ga. 824, 199 S.E. 125); and to entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced. Adkins v. Bennett, 138 Ga. 118 ( 74 S.E. 838); Cassidy v. Wiley, 141 Ga. 333 ( 80 S.E. 1046, 51 L.R.A. (N.S.) 128); City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (5), 505 ( 113 S.E. 545); Hodges v. Kennedy, 184 Ga. 400 ( 191 S.E. 377); Phillips v. Head, 188 Ga. 511 ( 4 S.E.2d 240). We can not bring ourselves to believe that the petitioner has such a clear legal right here involved as will require the granting of the rather harsh writ of mandamus to secure its performance.
This case differs on its facts from Thomas v. Ragsdale, 188 Ga. 238 ( 3 S.E.2d 567), and for that reason is clearly distinguishable. In that case Thomas had filed with the governing body of the county an application for license to engage in the sale of whisky under the provisions of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. L. Ex. Sess. 1937-38, p. 103), as approved on February 3, 1938, and after the county, at an election called for that purpose, had voted in favor of the sale of whisky; but notwithstanding the election, the commissioners refused to provide rules and regulations governing the sale of whisky outside of the corporate limits of any municipality located in the county and refused to accept and hear his application filed for license. The court held in that case that — since the act approved February 3, 1938, which authorized the sale of whisky in those counties of the State where, at an election held for that purpose, the vote had been in favor of legalizing the sale of whisky, made it the duty of the governing body of the county to prescribe rules and regulations governing the conduct of such places of business, and to receive and hear applications for licenses to engage in the sale of such liquors — the county commissioners could not arbitrarily decline to receive and grant such applications. We think that the facts in that case present a situation entirely different from the one here involved. From what has been said, we must hold that the present petition did not state a cause of action for the relief sought, and it was not erroneous to sustain the general demurrer of the commissioners.
2. Since we hold that the petition did not state a cause of action for the writ of mandamus, it becomes unnecessary to pass on the other assignments of error.
Judgment affirmed. All the Justices concur.