'Wennerstrum, J.
Plaintiff sought a writ of mandamus in her favor and against the defendant and thereby endeavored to have the district court direct the defendant-board to issue to her a state beer permit. The defendant filed a motion to dismiss the [1150]*1150petition on tbe grounds that there was no mandatory duty imposed upon it by law to issue such a permit as referred to in plaintiff’s petition and for the further reason that the district court did not have jurisdiction in a mandamus proceeding to order the defendant to issue a permit to the petitioner. The trial court overruled this motion. The defendant has appealed to this court prior to the determination of the hearing of the case on its merits, consent to do so having been obtained from- it. Rule 332, R. C. P.
The appellee’s petition alleged that during the year 1950, she held a class “B” permit granted to her by the town of Bevington and also a permit granted by the State of Iowa, section 124.5, 1950 Code; that before the expiration of the time covered by the 1950 beer permit the appellee made application for its renewal for the subsequent year; that it was granted by the town of Bevington and issued to her for the subsequent year and it has never been revoked. It is further alleged in the petition that pursuant to chapter 124 of the 1950 Code and subsequent to the granting of the permit and license by the local board, notice of the granting and issuance of this permit was given this appellant-board (section 124.5, 1950 Code) and that it, acting through its members, has failed to issue a state beer permit in violation of the statute. By reason of this claimed illegal and unlawful failure of the State Beer Permit Board to issue the state beer permit to the appellee it is alleged that she has been forced to close her place of 'business and to suffer loss of profits and irreparable- injury. It is further alleged that this appellee has no other speedy, adequate remedy at law other than by virtue of this mandamus action.
Appellant by its motion to dismiss admits the truth of the allegations in appellee’s petition which are well pleaded. Crowley v. Johnson County, 234 Iowa 142, 12 N.W.2d 244.
The appellant-board in this court sets out as grounds for reversal several propositions of law which may be summarized as follows: there is no mandatory duty imposed upon the State Beer Permit Board to issue a beer license upon the granting of a local license by a city council; the law provides for uniform compliance and creates the State Beer Permit Board for that [1151]*1151purpose; the law requires approval by both issuing bodies; section 124.23, 1950 Code makes it a duty upon all issuing authorities to investigate said application; the appellee’s petition is based solely upon the question of a mandatory duty and there is no allegation in the petition claiming that the State Beer Permit Board acted arbitrarily or capriciously; the State Beer Permit Board has the power to review and the power of revocation and that under the law of this state as expressed through the opinions of this court the right of revocation is coextensive with the right of denial; the statutes included for public benefit are to be taken and construed most favorably to the public.
The questions presented by reason of this appeal involve the interpretation and application of certain provisions of the statute which, of necessity, must be set out in this opinion. This is particularly true by reason of the provision of a portion of section 124.5, 1950 Code, upon which the lower court apparently based its decision and which portion of the Code section the appellee now states is controlling. This portion of the statute will be incorporated hereinafter in its proper context and commented upon.
Section 124.1, 1950 Code makes it unlawful for any person to “* * * sell beer unless a permit is first obtained as provided for in this chapter.”
Section 124.4 is as follows: “Duties and powers. The state permit board may review the action of any city or town council, including special charter cities, and boards of supervisors, in any ease where a hearing has been had relative to the cancellation or revocation of a permit and it appears from the records of the hearing held by said city or town council or board of supervisors, that the permit has not been revoked or canceled, and it appears from an investigation made by the state permit board that there is reasonable ground to believe that such permit holder has been guilty of violation of the provisions of this chapter, and upon such hearing the permit board shall make a finding, after hearing the facts with reference to the grounds for the revocation of such permit, and by a majority vote shall determine whether or not such permit shall be revoked and make an order accordingly, and said finding shall be final.
[1152]*1152“If the state permit board finds from investigation that a review of the action of any city or town council, including special charter cities and boards of supervisors, should be had, or that such governing bodies have failed to take action, the state permit board shall thereupon fix a date for the hearing thereof and shall notify the permit holder of such hearing by registered mail of the date fixed for hearing and the date set for the hearing shall not be less than seven days from the mailing of the notice. Such notice shall be mailed to the permittee at the post-office address where his place of business is conducted under his permit. All such hearings shall be held at the seat of government, at Des Moines.
«* * *
“Like hearings may also be had in cases where a verified petition signed by at least ten taxpayers has first been presented to the city or town council, including special charter cities or the boards of supervisors* as the case may be, or where the state permit board from its investigation asks that a hearing be had on the revocation of a permit, and in the event the city or town council, including special charter cities and boards of supervisors, neglects or refuses to have such hearing, the matter may be presented to the state permit board upon such verified petition in writing, signed by at least ten taxpayers of the jurisdiction for which the permit was granted, or the state permit board may upon its own motion conduct such hearing, and the same procedure as in this section provided shall apply with reference to notice of hearing witnesses, testimony and contempt proceedings for failure to appear, and the board shall make a finding in such cases, which finding shall be binding on the permit holder and also on the city ok town councils, including special charter cities or boards vof supervisors, as the case may be.”
Section 124.5 is as follows: “Power to issue permits. Power is hereby granted to the state tax commission to issue the class ‘A’ permit, provided for in this chapter, and to revoke the same for causes herein stated. Power is hereby granted to cities and towns, including cities under special charter to issue the class ‘B’ permits and class ‘O’ permits within their respective limits and to revoke same for the causes herein stated, or in the event [1153]*1153tbe place of business of the permit holder is conducted in a disorderly manner. Power is hereby granted to boards of supervisors to issue, at their, discretion, class ‘B’ and ‘O' permits in their respective counties in villages platted prior to January.
Free access — add to your briefcase to read the full text and ask questions with AI
'Wennerstrum, J.
Plaintiff sought a writ of mandamus in her favor and against the defendant and thereby endeavored to have the district court direct the defendant-board to issue to her a state beer permit. The defendant filed a motion to dismiss the [1150]*1150petition on tbe grounds that there was no mandatory duty imposed upon it by law to issue such a permit as referred to in plaintiff’s petition and for the further reason that the district court did not have jurisdiction in a mandamus proceeding to order the defendant to issue a permit to the petitioner. The trial court overruled this motion. The defendant has appealed to this court prior to the determination of the hearing of the case on its merits, consent to do so having been obtained from- it. Rule 332, R. C. P.
The appellee’s petition alleged that during the year 1950, she held a class “B” permit granted to her by the town of Bevington and also a permit granted by the State of Iowa, section 124.5, 1950 Code; that before the expiration of the time covered by the 1950 beer permit the appellee made application for its renewal for the subsequent year; that it was granted by the town of Bevington and issued to her for the subsequent year and it has never been revoked. It is further alleged in the petition that pursuant to chapter 124 of the 1950 Code and subsequent to the granting of the permit and license by the local board, notice of the granting and issuance of this permit was given this appellant-board (section 124.5, 1950 Code) and that it, acting through its members, has failed to issue a state beer permit in violation of the statute. By reason of this claimed illegal and unlawful failure of the State Beer Permit Board to issue the state beer permit to the appellee it is alleged that she has been forced to close her place of 'business and to suffer loss of profits and irreparable- injury. It is further alleged that this appellee has no other speedy, adequate remedy at law other than by virtue of this mandamus action.
Appellant by its motion to dismiss admits the truth of the allegations in appellee’s petition which are well pleaded. Crowley v. Johnson County, 234 Iowa 142, 12 N.W.2d 244.
The appellant-board in this court sets out as grounds for reversal several propositions of law which may be summarized as follows: there is no mandatory duty imposed upon the State Beer Permit Board to issue a beer license upon the granting of a local license by a city council; the law provides for uniform compliance and creates the State Beer Permit Board for that [1151]*1151purpose; the law requires approval by both issuing bodies; section 124.23, 1950 Code makes it a duty upon all issuing authorities to investigate said application; the appellee’s petition is based solely upon the question of a mandatory duty and there is no allegation in the petition claiming that the State Beer Permit Board acted arbitrarily or capriciously; the State Beer Permit Board has the power to review and the power of revocation and that under the law of this state as expressed through the opinions of this court the right of revocation is coextensive with the right of denial; the statutes included for public benefit are to be taken and construed most favorably to the public.
The questions presented by reason of this appeal involve the interpretation and application of certain provisions of the statute which, of necessity, must be set out in this opinion. This is particularly true by reason of the provision of a portion of section 124.5, 1950 Code, upon which the lower court apparently based its decision and which portion of the Code section the appellee now states is controlling. This portion of the statute will be incorporated hereinafter in its proper context and commented upon.
Section 124.1, 1950 Code makes it unlawful for any person to “* * * sell beer unless a permit is first obtained as provided for in this chapter.”
Section 124.4 is as follows: “Duties and powers. The state permit board may review the action of any city or town council, including special charter cities, and boards of supervisors, in any ease where a hearing has been had relative to the cancellation or revocation of a permit and it appears from the records of the hearing held by said city or town council or board of supervisors, that the permit has not been revoked or canceled, and it appears from an investigation made by the state permit board that there is reasonable ground to believe that such permit holder has been guilty of violation of the provisions of this chapter, and upon such hearing the permit board shall make a finding, after hearing the facts with reference to the grounds for the revocation of such permit, and by a majority vote shall determine whether or not such permit shall be revoked and make an order accordingly, and said finding shall be final.
[1152]*1152“If the state permit board finds from investigation that a review of the action of any city or town council, including special charter cities and boards of supervisors, should be had, or that such governing bodies have failed to take action, the state permit board shall thereupon fix a date for the hearing thereof and shall notify the permit holder of such hearing by registered mail of the date fixed for hearing and the date set for the hearing shall not be less than seven days from the mailing of the notice. Such notice shall be mailed to the permittee at the post-office address where his place of business is conducted under his permit. All such hearings shall be held at the seat of government, at Des Moines.
«* * *
“Like hearings may also be had in cases where a verified petition signed by at least ten taxpayers has first been presented to the city or town council, including special charter cities or the boards of supervisors* as the case may be, or where the state permit board from its investigation asks that a hearing be had on the revocation of a permit, and in the event the city or town council, including special charter cities and boards of supervisors, neglects or refuses to have such hearing, the matter may be presented to the state permit board upon such verified petition in writing, signed by at least ten taxpayers of the jurisdiction for which the permit was granted, or the state permit board may upon its own motion conduct such hearing, and the same procedure as in this section provided shall apply with reference to notice of hearing witnesses, testimony and contempt proceedings for failure to appear, and the board shall make a finding in such cases, which finding shall be binding on the permit holder and also on the city ok town councils, including special charter cities or boards vof supervisors, as the case may be.”
Section 124.5 is as follows: “Power to issue permits. Power is hereby granted to the state tax commission to issue the class ‘A’ permit, provided for in this chapter, and to revoke the same for causes herein stated. Power is hereby granted to cities and towns, including cities under special charter to issue the class ‘B’ permits and class ‘O’ permits within their respective limits and to revoke same for the causes herein stated, or in the event [1153]*1153tbe place of business of the permit holder is conducted in a disorderly manner. Power is hereby granted to boards of supervisors to issue, at their, discretion, class ‘B’ and ‘O' permits in their respective counties in villages platted prior to January. 1, 1934, and to clubs as defined in section 124.16 and to revoke same for causes herein provided, or in the event the place of business of the permit holder is conducted in a disorderly manner.
“Each applicant applying for a class ‘B’ or ‘O’ permit, shall, in addition to procuring a permit from a city or town council, or board of supervisors, as provided in this chapter, also make application through such city or town council or board of supervisors for a state permit from the state permit board. Such applicant shall deposit with said application a fee of three dollars which shall be forwarded to the state permit board, together with the certification to the state board of the issuance of such class ‘B’ or ‘C’ permit. Such fees collected shall be placed in a special fund by the state tax commission to be used by the state permit board for the purpose of enforcing the provisions of this chapter.
“Upon the issuance of a permit by a city or town council, or board of supervisors, such council or board shall forthwith certify to the state permit board the action so taken. The state permit board shall promptly issue a state permit to all applicants to whom a permit has been issued by a city or town council or by a board of supervisors, which shall expire at the same time as the permit issued by said council or board, and shall forthwith certify to such council or board as to the issuance of each permit.
“Upon the revoking of a permit by any city or town council or board of supervisors, such council or board shall certify to the state permit board the action so taken, and thereupon the state permit board shall immediately cancel its permit to such permit holder, and such action of the state permit board and other granting authority shall be final.”
In section 124.9 there is set forth the necessary inquiries which must be answered in making application for a class “B” permit.
Section 124.10 which relates to class “C” applications sets out facts that must be shown and are substantially similar to those required for class “B” applications.
[1154]*1154Section 124.23 is as follows: “Investigation of applicant. The authorities empowered by this chapter to issue permits shall make a thorough investigation to determine the fitness of the applicant and the truth of the statements made in and accompanying the application, and the decision of such authority on the application shall be rendered within thirty days after the application is received.”
I. Are there conflicting authorities set forth in section 124.5 and section 124.23? It will be observed that the initial application must be made, to the city or town council or board of supervisors who shall pass upon the question whether a permit shall be issued by the local unit. When and if a local permit is given, the local unit “# * # shall forthwith certify to the state permit board the action so taken * * and “The state permit board shall promptly issue a state permit to all applicants to whom a permit has been issued by a city or town council or by a board of supervisors * * *.” The duty to make an investigation as provided for in section 124.23 is given to the authorities authorized to issue permits. Does this mean that the state permit board shall make an investigation in addition to the one made by the local unit? We do not think it does. This seems particularly true when the statute very definitely sets forth that upon the issuance of a local permit, the certification of that fact to the state permit board, and the payment of the state fee, a state permit shall be issued.
II. It should be kept in mind that under section 124.5 the power is given “* * # to the state tax commission to issue the class ‘A’ permit [to manufacture and sell at wholesale] * * * and to revoke the same for causes herein stated. * * The authority is not given the state permit board to issue class “A” permits or even to give a supplemental permit. If the legislature had intended to have the state permit board pass upon the fitness of applicants for local permits it would seem logical that they would, with greater justification, have authorized a review of the granting of a class “A” permit by the state permit board. This they did not do. And inasmuch as the statute definitely states that upon the certification of the issuance of the local permit the state permit shall be issued, it is difficult to read into [1155]*1155the statute an intent on the part of the legislature to have the issuance of the state permit subject to a further review by the state permit board.
III. There is specific provision for a review by the state permit board in the case where there has been a hearing by a city or town council or board of supervisors relative to the cancellation or revocation of a permit and the permit has not been revoked or canceled. Section 124.4, 1950 Code. It will thus be observed that provision has been made for a review by the state permit board under certain circumstances. If the legislature had desired a review by the state board in regard to the issuance of a permit it could have been equally specific in so stating. A court, by interpretation, should not write into a law provisions which are not covered by the particular legislation. We have so held in the case of Case v. Olson, 234 Iowa 869, 872, 14 N.W.2d 717, 719, where we stated: “The courts confine themselves to the construction of the law as it is, not to amend or change under the guise of construction.” See also Greene County Rural Electric Cooperative v. Nelson, 234 Iowa 362, 367, 368, 12 N.W.2d 886, 889.
IV. In setting up the state permit board the legislature set out what its powers are. Section 124.3, 1950 Code. This board shall have power to # # issue state permits and shall have the power to revoke the same upon hearing * * *” as provided in chapter 124 and “* • * * to review actions of the city or town councils, and boards of supervisors, in refusing to revoke permits * * In granting powers to the state permit board no authority is given to it to review the action of the local unit which has issued a local permit by refusing to grant a state permit which under the statute should have been issued as a matter of right.
V. For the reasons previously stated we have concluded that the trial court properly overruled the motion to dismiss appellee’s petition. We consequently affirm. — -Affirmed.
Bliss, Smith, Mantz, Oliver, Mulroney, and Hays, JJ., concur.
Oliver, J., specially concurring; Bliss, Smith, Mantz, Mulroney, Hays, and Wennbrstrum, JJ., join.
[1156]*1156Smith, J., specially concurring; MaNtz, Oliver, Mulroney, Bliss, Hays, and Wennerstrum:, JJ., join.
Thompson, C.J., and Garfield, J., dissent.