Ex parte Lester

77 Va. 663, 1883 Va. LEXIS 103

• Court: Supreme Court of Virginia
• Decided: September 20, 1883
• Status: Published

Opinions

Lacy, J.,

delivered the opinion of the court.

The question for this court to decide in these cases is, Did the petitioners, when their application for license was refused by the county court, have a right to the remedy sought by them by writ of error to the circuit court ?

The act of the legislature under Avhich they sought their licenses is as follows: “ Any person who desires a license to sell by retail, or to keep a bar-room, shall first apply therefor to the commissioner of the revenue for the city or county, who shall assess them with the proper license-tax to be paid, and they shall then pay the amount of the said tax to the treasurer or other collecting officer, and take his receipt for the same, on the certificate furnished by the assessor, and shall present the said certificate so receipted to the court of the county or corporation in which it is proposed to conduct the business; and if the court be fully satisfied, upon hearing the testimony for and against the application, should any be offered, that the applicant is a fit person, and that the place of business is suitable and convenient, it may, upon the execution hy the applicant of a bond, with good security, payable to the commonwealth of Virginia, in a penalty not less than one hundred nor more than five hundred dollars, conditioned for the faithful performance of all the requirements of this act, grant such license; and thereupon the commissioner of the revenue shall issue the same in such form as may he . prescribed by the auditor of public accounts. If the county or corporation court shall refuse to grant the application, the tax shall he refunded, and the party aggrieved may, during the term at which such refusal is entered, appeal to the circuit court of said county or corporation, in term time or vacation. And the judge thereof shall take cognizance of said appeal, and may grant the license upon the terms required hy this act.” Acts of Assembly 1881-82, page 238.

The only difference between this act and the act of assembly of 1879-80 is the substitution of the word “may” for the word “ shall,” when prescribing the duty of the county court in the premises. Acts of Assembly 1879-80,page 148, section 2.

It is contended in the argument here in these cases that the terms of the above act, providing for an appeal during the term of the county court, grants to the applicant an appeal of right to the circuit court, to he heard de novo ; and that a writ of error will not lie to the circuit court. Yeager’s Case, 11 Gratt. 655, is cited to sustain the proposition that before the act of assembly granting an appeal of right, as seen above, to the judgments of the county court in such cases, the judgment of the county court was final, and not subject to review in any appellate tribunal. The act of 1849, construed hy the opinion of this court in that case, contained provisions which are not found in the present law, to-wit: “ If the court he of opinion that the applicant is sober and of good character, and will probably keep a house orderly, useful, and such as the law requires, it may grant such license. If such application he refused, the refusal shall he entered of record, and a license shall not he granted to the applicant before the next May term, unless by a court composed of the justices to whom the first application was made, or a majority of the acting justices of the county or corporation.” And an examination of the laws before that time bearing on the subject will show that the policy of the legislature had always been to impose upon all such traffic great restriction, and that the traffic was allowed only so far as the necessity of the times demanded, and to prevent the retailing of. liquor in the houses of the people without license. The act of 1705, 3 Hen. St. 396, provided that the justices by their discretion should judge whether it is convenient to suffer such a house to be set up. The act of 1748, 6 Hen. St. 71-72, provided: “And if such petition shall appear reasonable, such court is hereby authorized, and may, if they think fit, grant the petitioner a license for one year and no longer, and may upon petition be renewed from year to year, if the court shall think fit.” The language used in the act of 1792 was the same as this, and the act of 1819 provides that the justices shall consider the convenience of keeping the said house, the character of the petitioner, and if such petition shall appear reasonable and the court shall be satisfied, &c., and shall be of opinion that he will keep an orderly house, &c. 2 Eev. Code, chapter 240, section 1.

The same language is employed in the act of 1840. And the provisions of the act of 1849 indicated, as we have seen, no change of the policy, hut contains similar provisions, and in construing the laws, this court said: “With this view of the nature of the authority given to the county court, we cannot see how, when they have heard the application, and in the exercise of their discretion have pronounced a judgment of refusal against it, the superior court can undertake to revise the judgment by means of a mandamus, without running counter to the law on the subject, as settled by numerous decisions of the courts, as well in England as in this country.” And this court, in that case, declared that by the act of 1849 the legislature intended to clothe the county courts with a discretion in the matter of granting licenses for houses of entertainment, in the exercise of which the justices are not liable to be overlooked and controlled by mandamus. And as the petitioner presented also ■a petition for a writ of error, the court, held that there was, under the law then existing, and for reasons already given, no mode by which the action of the justices could be appealed from.

This decision was rendered in the year 1854, and the legislative intent remaining the same, the law remained unchanged down to the act of 1869-10, under which the case of French v. Noel was decided by this court. 22 Gratt., 454. And in that case the action of the county court was held to be final and conclusive. That the said county court had a discretion which could not be reviewed. That case, however, was a case of prohibition to prohibit the circuit court from reviewing and reversing the order of the county court granting a license to the applicant, upon the motion of a stranger. Still, while the opinion is very meager, we are left to conclude that the ground of the decision was the same as that upon which the decision in the Yeager case rested—that the discretion of the county court once exercised could not be reviewed at the instance of any person, but was final and conclusive, whether granting or refusing the license.

Before the act of 1869-10, under which the case of French v. Noel was decided, the county court was constituted of justices of the peace since 1850, elected by the qualified voters from each magisterial district in the county. But since that time, under the constitution now in force in this state, and which was ratified in the said year 1869, the county court has been held by a single judge, not elected by the people, but by the legislature; and in the acts of the legislature subsequently passed, we find the law changed from its ancient form in this respect, and the language with which we have now grown familiar in this opinion—which vested an unlimited discretion in the county court, which left that court to do what it might think fit, or be of opinion to do— has disappeared. We find the law amended so as to provide that, “upon said court being satisfied, after hearing testimony for, and if any should be offered, against the application, the said license shall he granted.” See Acts 1871-72, Code 1873, chapter 34, section 24. Ho longer leaving an unlimited discretion in the county court upon the subject, hut making it mandatory, providing that the court shall hear and decide upon testimony adduced before it, and if, upon this testimony, the court is satisfied—that is, if it is proved—that the applicant is a person of good character, and the place suitable, then the county court shall grant the license. Suppose under this law the county court had refused the license when the applicant brought himself within its requirements, when the legislature made it thus mandatory upon the county court to grant the license, and that court had rendered an erroneous decision, did not the party aggrieved have redress in the appellate court, as the law then stood? Why would not an appeal lie in such case, under the law last cited, to the circuit court, upon a writ of error and supersedeas, under the general law? The court was required to do a judicial act, to decide upon evidence, and why would not an appeal lie to the circuit court to correct an erroneous decision? Certainly, not for the reasons assigned in Yeager’s case, that the county court had an unlimited discretion to do as it might deem fit; that could not he contended under this law. But the legislature has shown no disposition to retrace its steps, and by the act of 1876-77 we find that it not only so required the county court to act upon the testimony, hut it provides also: “ If the county court shall refuse to grant the application, the party aggrieved may, during the term at which such refusal is entered, appeal to the judge of the circuit court of said county, in term time or vacation, and the judge thereof shall take cognizance of such appeal, and may grant the license upon the terms required by this act.” And by the act of April 1st, 1879, it was provided in similar terms, and the circuit court was authorized to order the county court to grant the license. The act of 1879-80 was identical with this, except that the circuit court was. authorized to grant the license without any order to the county court. The act of 1881-2, supra, is the same, except that the word “shall” is stricken out and the word “ may ” inserted in its stead. And it is earnestly contended here that the change of this word has remitted the whole subject to the unlimited discretion of the county court, which is to he found in the old laws of this commonwealth. An inspection of the law quickly refutes this assumption. The county court is not only required to hear and decide upon the evidence in the case, hut if the county court should refuse to grant the license, then the party aggrieved is allowed an immediate appeal to the circuit court, in term time or vacation. An unlimited discretion could not long survive before such a provision. It is not known to the court what the object of the legislature was in striking out the word “shall” and inserting the word “may.” An inspection of the act shows that it was provided that the “ county court shall,” and the “ circuit court may,” grant such license. It may have been changed for uniformity; it may have been changed to rehut the presumption that the circuit court had any more an unlimited discretion than the county court. That the change of this word did not change the character of the duty required of the county court is obvious, for the right of immediate review is provided for, which would have been useless if there was an nlimited discretion which could not be reviewed at all.

The word “may” is sometimes construed as permissive and sometimes as mandatory. It is always construed as mandatory when a positive duty is imposed—when third persons have a claim that the act shall be done. When a statute confers an authority to do a judicial act in a particular case, it is imperative on those so authorized to exercise authority when the occasion arises. In such cases the word “may” is not used to give a discretion, but to confer a power upon the court, and the exercise of such power depends not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises. Sedgwick on Construction of Statutes, 375.

And so in the case in hand, what is meant by “ may grant,” either as applied to the county court or the circuit court, is that such court shall have the power to grant, the j urisdiction to grant, such license, and the authority thus conferred must he exercised if the case he properly made out by a party interested.

It is not an arbitrary discretion vested in the judge of the court, hut a judicial discretion, subject to he reviewed in an appellate court. This question has been several times before this court since the change in the policy of the legislature which we have considered above. ( In the case of Leighton v. Maury, reported in 76 Virginia Reports, page 865, the act of assembly was the subject of elaborate review. In that case the court says: “ When the legislature made it mandatory upon the county court to grant the license in a given case, and authorized an appeal in case of refusal, it made it equally mandatory upon the circuit court to grant the license; and if the latter court renders an erroneous decision it is difficult to understand why the party aggrieved may not have redress in this court.” Such redress, it is evident, could not be had here except under the general law, for there is no other law giving this court any concern with the subject. And if by the general law this case may he appealed from the circuit court, why under the general law may this case not he appealed from the county court to the circuit court ? It is the same case in each court, it concerns the same subject matter and the same party. If appeals lie from the county court to the circuit court to correct erroneous judgments, why not in this case if there is an erroneous judgment ?

But it is contended in the argument that when the statute gave the right of immediate appeal to the circuit court, either in term time or vacation, it took away by implication such right of appeal under the general law upon errors assigned, and that it also abolished the jurisdiction of this court to review the circuit court in the premises, a jurisdiction which had been repeatedly taken and held by this court in similar cases; and that no express words of revocation were necessary; that the granting the right of immediate appeal to the circuit court- deprived this court of this jurisdiction. Is this so ?

This court, in passing upon this question in the cases of ex parte Bibb and ex parte Porterfield, said, speaking of this right of immediate appeal, and also of the right to the appeal upon errors assigned: “The petitioner had two remedies by which to correct the supposed errors of the county court. He might, under our general law respecting appeals, writs of error and supersedeas, (Code 1873, chapter one hundred and seventy-eight, section two,) have, upon hill of exceptions taken at the trial in the county court, applied to the circuit court, or judge thereof in vacation, for a writ of error, or, under the act of 1879-80, (exactly the same law as the present upon this point,) he had an appeal of right from the judgment of the county court to the circuit court. The parties, therefore, had two remedies, writs of error and appeal of right. Though they differ in their nature, the object in each is the same. The party complaining had a right to resort to either for redress of alleged grievances.” This case has not been reported. And this court held the same upon the question of jurisdiction in the case of Chalmers and others v. Funk & Son, upon appeal from the circuit court of Roanoke county, at the Wytheville term, 1882, reported in 76th Virginia Reports, page 717.

In the case of Leighton v. Maury, supra, this court maintained the same ruling. That case was upon appeal by the applicant for license, and the court said: “ Statute declares that a person who is a party to any civil case, in which there is a final judgment, decree or order, may present his petition for an appeal, writ of error, or supersedeas. It will be understood, of course, that when a mere pecuniary matter is involved, the subject of controversy must he $500 or upwards. This, however, is not a case of that sort; no mere pecuniary matter is involved. It is a final j udgment or order in a civil case touching the exercise of a right or privilege conferred by an act of the legislature. It is covered by the express terms of the statute already cited relating to appeals, &c., and the right to appeal can only be taken away by express enactment or by implication equally plain. We are therefore of opinion that an appeal of right lies from the county court to the circuit court whenever the license is refused; and if the circuit court also erroneously refuses the license, the decision is the subject of review by this court upon appeal, or writ of error and supersedeas, as in other cases.”

Now, we will remark here, that the same reasoning which maintained the right of appeal or writ of error from the circuit court, under the general law, applies with equal force to the right of appeal or writ of error to that court from the county court. In the same case this court said: “Whether the person who enters himself a party defendant, and resists the application, is equally entitled to an appeal, is a question we are not called upon to decide here.” But, proceeding in the case, the court said: “Another question is, however, presented for our consideration. As has been already stated, William F. Maury entered himself as a defendant both in the county and circuit courts, and opposed the application for a license. * * * * It was a matter in which he was personally interested, and one in which every citizen is more or less concerned. Mr. Maury having been a party on the record in the circuit court, it was competent for him to appear and defend in this court, and he ought properly to have been served with process upon the appeal, writ of error and supersedeas. * * * In all these cases, a person making himself a party, however, renders himself liable for costs, and may recover costs as in other cases.”

So that the court in that case does substantially declare the right of a person who contests the granting of the license to appeal, for it would seem that if a person once of right becomes a party in interest, he is included in the general terms of the statute concerning appeals. But this question coming directly before this court in the case of Ailstock v. Page, ante page 386, this court overruled the said Leighton case on that point. In the said case of Ailstoek v. Page, the court said: “Several interesting questions are raised, only one of which, however, in the view we take of the case, is it necessary for us to decide. That question is this: “ Did the circuit court have jurisdiction to award a writ of error and supersedeas in this case?”

The application for a license had been granted in that case by the county court, and the contestant, upon the authority of the Leighton case, supra, had obtained a writ of error from the circuit court, and in this court the case was prohibition against the circuit court upon the petition of the applicant for the license; and this court held that the contestant had no right of appeal, or writ of error and supersedeas, and so- much of the Leighton case as was in conflict with that decision was declared to be overruled. That case did not concern, nor in any way apply to, the questions in this case. That was a case where the contestant appealed to the circuit court, and the applicant was not aggrieved by the order of the court, as his license had been granted. This is a case, as we have seen, where the applicant was denied his license, and applied to the circuit court for a writ of error and supersedeas, which was denied. And yet it is earnestly contended in argument here against the applicant, that the case of Ailstock v. Page determined the question here. Nothing concerning the applicant was within the submission, as we have seen in that case, and this court expressly declared its purpose to decide only one question, and that the question whether the contestant could appeal. We think the court in the Ailstock case rightly decided that the contestant had no right of appeal. There is no authority in the statutes for the contestant to make himself a party; it is not a case in which he has an interest such as entitles him to be made a party to the case, and thus to come within the terms of the statute. And this view is, we think, sustained by the case of the Supervisors of Culpeper v. Gorrell, 20 Grattan. In that case, when Joseph B. Gorrell and seven others came in to object to the public condemnation of land, this court said: “ It is not pretended that the said exceptants had any interest in the lands condemned, and from what has already been said it must be manifest that the said exceptants had no right to become parties to the said proceedings. We are of opinion that the circuit court had no jurisdiction to award a writ of error and supersedeas for two reasons: First. Because the said exceptants were not parties to the said judgment, nor to the proceedings in which it was rendered. * * * It is well settled that a person who is not a party to a proceeding in which the judgment of the court below complained of was rendered cannot obtain a supersedeas to such judgment. The word “ person” in the law giving the right to obtain an appeal, writ of error, or supersedeas has been construed to mean “party,” and the word “party” is, itself, also used in the law: £ Any person who is a party to any case’ is a part of the language of the law. Acts, 1869-70, p. 221; 1 Rob. Practice, n. p. 656, 657, and the cases cited, especially Sayre v. Grymes, 1 Hen. & Mun., 404 ; Wingfield v. Crenshaw, 3 Hen. & Mun. 245 ; and Holcomb v. Purcell, 1 Rob. Pr. supra. * * * A person must not only be a party to the proceeding in the court below, but he must also be aggrieved by the judgment rendered therein to entitle him to obtain a supersedeas to such judgment.”

In the Ailstock case, we might in like manner say as the court said in that case, the parties seeking to appeal were not parties; their mere offer to become so did not make them parties ; they were not entitled to be made parties. Any indirect interest they may have had in the subject as citizens, tax-payers, and land-holders of the county was not sufficient to make them parties ; there is no authority in the law to make them parties, and without such authority they cannot be made so. And this court correctly held in the said case of Ailstock v. Page that they had no right to ask for, and the circuit court no right or jurisdiction to award to them, a writ of error and supersedeas.

But that case does not apply to or affect this case. As we have seen, this case affects the rights of the applicant, who is a party directly in interest, and comes within the letter of the statute. So we are of opinion, for the reasons herein stated, that the right of appeal during the term to the circuit court in term time or vacation, does not take away or impair the right of appeal, writ of error, and supersedeas, which existed before; such a right could only he taken away by express enactment or implication equally plain; and both remedies exist, and either may he used by the applicant. And the circuit court erred in deciding that the right of appeal upon errors to the circuit court had been taken away by the said statute. And the said' ruling of the circuit court is reversed and annulled. And it appearing to the court from the record in these cases that the parties applying for the license brought themselves within the terms of the law, as appears by the evidence, they were entitled to have the license according to the terms of their application.' The judgment of the county court refusing them license is erroneous and must he reversed and annulled, and these cases remanded to the county court of Montgomery, with directions to grant the license in each case. This court does not express any opinion upon the policy of the law under consideration. The wisdom and propriety and policy of the law is a matter which comes wholly within the legislative province, and all that has been said upon that subject in the argument in these cases would he more properly addressed to the legislature.