Holck v. McCaslin

361 P.2d 440, 146 Colo. 326, 1961 Colo. LEXIS 606

• Court: Supreme Court of Colorado
• Decided: April 24, 1961
• Docket: No. 19,546
• Status: Published

Opinion

Opinion by

Mr. Justice Moore.

We will refer to plaintiff in error as petitioner, and to defendants in error as the commissioners.

Petitioner applied to the commissioners, as the licensing authority in Boulder county, for the issuance to him of a package liquor store license for premises about one-half mile south of the city limits of the city of Longmont. The application was denied by the commissioners and such denial was affirmed by the county court of Boulder county in appropriate proceedings. Petitioner seeks review of the county court judgment by writ of error.

The minutes of the meeting of the commissioners following a hearing on petitioner’s application contain the following:

“Commissioner Smith moved Commissioner McCaslin seconded to deny the liquor store application for John B. Hoick, £St. Vrain Liquor Store,’ located one-half mile south of Longmont, due to the following reasons:

“(1) at present there are five package outlets within an area of two miles of the proposed location, and

“ (2) the evidence brought out at the hearing failed to show the need to establish a new license at this location to meet the requirements of the neighborhood, and

“ (3) that the new license apparently was not desired by inhabitants of the neighborhood in view of the protestants appearing at the hearing and submitting their names on petitions.

"Commissioner Austin did not attend the hearing, therefore he withheld his vote. Motion carried unanimously.”

There is ample evidence to support the finding of the commissioners. The record before us contains nothing to justify a conclusion that their action was arbitrary or capricious. In many respects the instant case is comparable to the facts presented in Quedens, et al. v. J. S. Dillon & Sons, 146 Colo. 161, 360 P. (2d) 984, decided April 3, 1961, and Hauf Brau, et al v. Board of County Commissioners, 145 Colo. 522, 359 P. (2d) 659, No. 18,985, decided February 27, 1961, in each of which the action of the licensing authority was upheld.

In the instant case the commissioners in the exercise of the discretion entrusted to them denied the application. There is nothing before us to indicate an arbitrary or capricious exercise of that discretion and the judgment accordingly is affirmed.

Mr. Justice Frantz and Mr. Justice McWilliams concur.