Curless v. Board of County Commissioners

Supreme Court of Kansas

Curless v. Board of County Commissioners

419 P.2d 876, 197 Kan. 580, 1966 Kan. LEXIS 421

CourtSupreme Court of Kansas

DecidedNovember 4, 1966

Docket44,609

StatusPublished

Cited by35 cases

This text of 419 P.2d 876 (Curless v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Curless v. Board of County Commissioners, 419 P.2d 876, 197 Kan. 580, 1966 Kan. LEXIS 421 (kan 1966).

Pincite

Opinion

The opinion of the court was delivered by

Fromme, J.:

This appeal is from an order dismissing a petition in mandamus filed in the district court of Johnson county, Kansas. The petition was filed against the Board of County Commissioners of that county to require that board to issue the renewal of a cereal malt beverage license. The petition was dismissed on motion without the introduction of evidence and timely appeal has been lodged in this court by plaintiff.

The Board of County Commissioners of Johnson county, Kansas, will be referred to as the county board. Cereal malt beverage will be referred to as beer.

The plaintiff, Barbara Curless, alleged in her petition that she is a duly qualified person to hold a beer license, that such a license *581 was issued to her in 1964 and renewed by the county board in 1965 authorizing her to sell beer for consumption on the premises known as “Kola Teepee” located in Spring Hill Township, Johnson county, Kansas. Plaintiff further alleged that she made application for renewal of said license in December 1965 as required and provided by K. S. A. 41-2702, that proper notice of this application was given to the Township Board of Spring Hill Township and no objection to the renewal of her beer license was made by the township board. Plaintiff further alleged that the county board refuses to issue the renewal license for 1966 even though she is a qualified person under the statute. The petition contains other allegations as to irreparable damages and incorporates by attachment a copy of a letter of opinion given by the county attorney to the county board. In this letter the county attorney had interpreted the statute as being mandatory and had suggested that the county board issue the renewal license.

Both parties state in oral argument and in their briefs that the sole point in this appeal is whether the county board is required to issue a renewal beer license under the provisions of K. S. A. 41-2702 when no objection is filed by the township board and the applicant is a qualified person under the statute. The petition does not allege that the county board acted unreasonably, arbitrarily or capriciously. Therefore if the statute is mandatory within the facts alleged in the petition the remedy of mandamus is available to compel the performance of a clearly defined duty not involving die exercise of discretion and the order dismissing the petition was erroneous.

The remedy of mandamus is available for the purpose of compelling the performance of a clearly defined official duty. Its purpose is to compel the performance of an act which the law specifically enjoins as a duty resulting from the office or trust. This remedy may not be invoked to control discretion, or to enforce a right which is in substantial dispute. (Lauber v. Firemans Relief Assn. of Salina, 195 Kan. 126, 402 P. 2d 817; Gray v. Jenkins, 183 Kan. 251, 326 P. 2d 319; State, ex rel. v. Shanahan, 173 Kan. 403, 246 P. 2d 305.)

A construction of the statute relating to the issuance of beer licenses and renewal licenses becomes necessary in order to determine the nature of the duty to issue the same imposed upon a board of county commissioners.

The lower court dismissed the petition upon the argument put *582 forth by the county board that K. S. A. 41-2701, et seq., conferred upon the functioning officers the final discretion and authority to determine the persons who are to receive a renewal beer license for sale and consumption on the premises.

The appellant argues that the county board has no discretion in the matter and must approve the application for a renewal beer license under this statute since applicant is a qualified person and since no objection to the renewal was filed by the township board.

Both parties interpret and partially rely upon the authority stated in the cases of Lindquist v. City of Lindsborg, 165 Kan. 212, 193 P. 2d 180; and Horyna v. Board of County Commissioners, 194 Kan. 445, 399 P. 2d 844.

The Lindquist case was handed down under the provisions of the Cereal Malt Beverage Act as it appeared in G. S. 1947 Supp. 21-2701, et seq. This court held under the statute as it then existed that the issuance of a renewal license by the city was discretionary and the issuing authority might grant or deny the renewal of a beer license in accordance with the exercise of its own honest judgment and discretion. In construing the provisions of the former act it was noted that the statute contained words which indicated the exercise of judgment and discretion on the part of the issuing authority such as “shall have the right to issue a license” as this appeared in section 2 of the act, and “if they approve the same” as this appeared in section 3 of the act. In Lindquist the applicant had held a license issued by the city from 1938 to 1947. She urged that the denial of a renewal license was a violation of her constitutional rights in the business in which she had invested so much time and money. She further argued that such a decision was not right for it would result in local option. In the next to the last sentence of the opinion this court said, “If that be true it is the concern of the legislature and not of the courts.” The Lindquist opinion was filed May 8, 1948. In the 1949 session the Kansas Legislature made it their concern and amended the Cereal Malt Beverage Act to read substantially as it now appears in K. S. A. 41-2701, et seq.

Prior to the 1949 amendment the act made no distinction between applications for renewal licenses and those for original licenses. The 1949 amendment added the provisions relating to renewal as they now appear in K. S. A. 41-2702.

For the purpose of comparing the Cereal Malt Beverage Act as it appeared prior to and after the Lindquist case we set out be *583 low the changes and additions made in this statute by the legislature after the Lindquist case was handed down. The additions to this act are indicated by words underlined and as found in K. S. A. 41-2702, et seq., and those words removed from G. S. 1947 Supp. 21-2702, et seq., are indicated by those words through which a line is drawn.

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