Lorenzino v. State ex rel. James

135 P. 1172, 18 N.M. 240

• Court: New Mexico Supreme Court
• Decided: October 14, 1913
• Docket: No. 1583
• Status: Published

Opinion

OPINION OF THE COURT.

ROBERTS, C. J. —

The principal question involved in this appeal is, whether mandamus is an available remedy, to compel the revocation by the board of ccunty commissioners of a liquor license where liquor is' being sold thereunder, “outside of the locality for which such license was granted.” The lower Court granted the writ, upon an agreed statement of facts. By the statement it was stipulated that the facts stated in the petition filed with the board .of commissioners, were to be taken as true by the Distiicfc Court. In the petition it was averred that the. building where liquor was being sold under the license sought to be cancelled, was not “within the limits of said village,” of Diamond Camp, where the licensee was authorized to sell intoxicating liquor. The holder of the license prosecutes this appeal, and for a reversal of the cause presents three propositions, which may be stated as follows:

(1) In determining whether the license should be can-celled, the board of county commissioners aGt judicially, and, therefore, mandamus will not lie. (2) Belator had an adequate remedy under section 4129, C. L. 1891, and covdd not, therefore, maintain this action, and (3) that the building where liquor was being sold under the license, was not within the limits of the village. In view of the stipulation, however, appellant is concluded as to the third proposition. , *

The first question is based upon the construction of sec. 4, chap. 115, S. L. 1905, which reads as follows:

“Any retail liquor license granted as provided for by law may be revoked by the board of county commissioners of the county wherein the same was or is issued, for the purpose of conducting a saloon outside of any incorporated village, town or 0%, when any saloon is conducted therein, and the license money paid shall be forfeited, for the following reasons, to-wit: Provided, That the authorities mentioned herein, upon a hearing given any person so licensed,, shall be satisfied that such person has violated any of the provisions specified in said license, or by selling or attempting to sell retail liquor aforesaid outside of the locality for which such license was granted, or if such person is conducting a disorderly or ill-governed saloon house or place, or a place of resort for idle or dissolute persons, or conducts any gambling therein without “having a license therefor, or by permitting women to frequent such saloon.”

1 Ajopellant argues, first, that the legislature, by the use of the word “majq” in conferring upon the board the-power to revoke the license, intended to invest the-board with the discretion to revoke the license, at its-pleasure, even though the license was being used in-violation of the terms of the act. Such construction, however, is erroneous, and it is plainly apparent that the word "may” was used in the sense of "shall.” While the word "may,” as used in the statute, is permissive in form, in reality it is mandatory and must be read in the sense of “shall,” in order to give effect to the.legislative intention. If the word is permissive, then boards of county Commissioners could permit intoxicating liquors to be sold at anyplace, within their jurisdiction, without regard to population. Such was never the legislative intent.

“The word “may” in a statute will be construed tornean ‘shall’ whenever the rights of the public or third persons depend upon the exercise of the power or the performance of the duty to which it refers. And such is its meaning in all cases where the public interests and rights are concerned or a public duty is imposed upon public-officers, and the public or third persons have a claim De-Jure that--the power shall be exercised.” People v. Commissioner of Highways, 130 Ill. 182, 22 N. E. 596; Supervisors of Rock Island Co. v. U. S., 71 U. S. 435.

3 It, therefore, follows that the board of commissioners-had no discretion in the matter of the cancellation of the license, if, in fact, it was being used outside of the locality for which such license was granted. It is true the board was required to determine whether the facts existed, which-required the cancellation of the license, but in so satisfjdng itself that the state of facts existed, which required the cancellation of the license, it acted only in-a ministerial capacity.

A duty to be performed is none the less ministerial because the person who is required to perform it may have to satisfy himself of the existence of the state of facts under which he is given his right or warrant to perform the required duty. Board of Commrs. v. State ex rel. Brown, 147 Ind. 476; Flournoy v. City of Jeffersonville, 17 Ind. 169; Wilkins v. State, 113 Ind: 514; State v. Johnson, 105 Ind. 463; Mayor, etc., v. Dean et al., 62 Ill. App. 41. The board, in informing itself, therefore, as to facts, upon which it was required to act, did not act judicially, but only in a ministerial capacity, and where the facts are admitted, as in this case, mandamus is the proper remedy ,to compel the cancellation of the license by the board, if the relator had no other adequate or specific remedy to secure ’the enforcement of the right and the performance of the dirty which he sought to coerce. Harleson v. South San Joaquin Irr. Dist., 128 Pac. 1010 (Calif.)

4 This brings us, therefore, to á consideration of the question as to whether relator could have resorted to some other legal remedy and thereby have secured the cancellation or revocation of the license. It will be noted that the statute above quoted does not provide for any appeal, or review, by any court of the action of the board of commissioners. Appellant contends, however, that relator had an adequate and effective legal remedy, under section 4129, C. L. 1897, which reads as follows:

“Any place where liquor is-sold, or in any way disposed of, in violation of this act, is hereby declared to be a public nuisance, and shall be abated as such, upon information or complaint filed before any court of competent jurisdiction.”

but it will be noted that the above section of the statutes does not provide for the cancellation of the license, but only for the abatement of the “place.” Under this section the court could prohibit the selling of liquor at the place, where it was sold in violation of the act, but would have no power to cancel the license under which it was sold. Iff the present case the relator might properly have proceeded under this section to abate the selling of liquor at the place .complained of, but the license held by respondent would have continued in full force and effect and might have been used properly in the place for which it had originally been issued. The statute in question did not, therefore, afford an adequate 'remedy, to accomplish the purpose sought in this proceeding.

Finding no error in the record, the judgment is affirmed, and it is so ordered.