Mr. Justice Stone
delivered the opinion of the court.
On certiorari, the trial court reviewed the refusal of the Manager of Safety and Excise, as licensing authority of the City and County of Denver, to issue a license to defendant in error for the sale of fermented malt beverages at his grocery store. Such refusal was there held arbitrary and without good cause and the licensing authority brings error.
Separate statutory provisions, found in chapter 89, article 1, ’35 C.S.A., govern the manufacture and sale of such beverages, commonly referred to as 3.2% beer. The statute provides that a licensee shall be a citizen of the United States and resident of the State of Colorado, section 4(a), and of good character and reputation, section 4(b); that “In considering the issuance of licenses, the licensing authority, either state or local, shall consider the reasonable requirements of the neighborhood and the desires of the inhabitants as evidenced by petitions, remonstrances, or otherwise,” section 4(c), and that “No licenses shall be refused arbitrarily or without good cause,” section 6.
At the hearings held by the licensing authority, applicant submitted petitions signed by 170 “owners and residents of property within a radius of six blocks” of his grocery store, requesting that the application be granted. No remonstrance or petition to the contrary was presented. It was stipulated that there were nine [117]*117beer outlets within said radius of six blocks, of which five had drug liquor licenses, two had package liquor licenses, one had a hotel and restaurant liquor license, and one a fermented malt beverage (3.2% beer) license, such as sought by applicant here. Three witnesses beside applicant himself testified in his behalf. The first, George A.. Baker, secretary of state, testified that he had become acquainted with the store while he was collecting accounts prior to attaining his present office, and knew the neighborhood well. He was very indefinite as to the requirement of that neighborhood for another beer outlet, but testified, “I would say that it would probably be all right in that location. That is my opinion.” And again, “I imagine the neighborhood could take it * * The next witness, Eugene M. Marshall, who was a truck driver of the neighborhood, testified that he bought groceries at applicant’s store and it was necessary for him to go to a different place to get his beer; that he usually bought two or three quarts at a time and sometimes drank it all Saturday night so that he had none on Sundays and applicant’s store was open Sunday mornings. He also testified that he felt the need of a place nearer his home, “because it would be a lot more convenient for my mother or my wife to get it because they don’t drive and they would have to walk such a distance to get it. It is awful heavy”; that applicant’s store is only a block and a half from his home; that a store at, 29th and Humboldt, which has 3.2% beer, is only two blocks away, but he had been going farther for his beer because he “didn’t realize” that the latter place had it. The third witness, Abner H. Bell, by occupation a railroad fire lighter, testified that he obtained his beer at a drugstore having a liquor license, mostly two or three quart bottles at a time; that he bought groceries at applicant’s store on Sunday mornings and it was inconvenient not to be able to buy his beer at the same place.
The evidence also disclosed without contradiction that [118]*118the distance between applicant’s store and the Manual Training High School was only 176 feet; that students from the school were frequent visitors at the store to buy such things as paper and ice cream. Applicant testified as to their ages that, “They run between fifteen, sixteen, and some over eighteen. There is a lot of children over there over eighteen; they come back from the Army and they come back to school”; that he and his wife ran the store; that he planned to put the beer in the center of the main floor of the store and keep beer, pop and milk in the same cooler, where most of the time customers helped themselves, and that when he was making deliveries his wife was in sole charge of the store.
The Manager of Safety and Excise denied the application on the ground that the applicant had not established a need in the neighborhood for the license and, “In addition to the above, the record discloses that the proposed premises were one hundred and seventy-six feet from Manual Training High School and experience has disclosed that where an age group is present which is both above and below eighteen years that the temptation to minors to attempt to purchase beer is created to such an extent that a reasonable man would not, in my opinion, establish such a temptation. Your application is, therefore, denied.”
There is no evidence, and no contention, in behalf of the licensing authority that the character of the applicant or the desires of the inhabitants do not support the application. The two questions involved are, (1) whether or not applicant had presented such convincing and undisputed evidence of the “reasonable requirements of the neighborhood” for another outlet for the sale of 3.2% beer that a denial on the ground of failure in such proof was arbitrary and without good cause and, (2) whether the discretion of the licensing authority must here be restricted to, and limited by, evidence as to the reasonable requirements of the neighborhood. [119]*119There is discussion by counsel in the briefs as to whether or not under our present laws “fermented malt beverage” (3.2% beer) is an intoxicating liquor. We think that question unimportant here since, in any event, the Legislature had the right to prescribe by statute the regulation of, and limitations upon, its sale here involved.
As to the first question, there is no showing as to practical difference in content, price or choice between beer sold under license for sale of “fermented malt beverages” and that sold under license for the sale of “malt, vinous, and spirituous liquors,” and in view of the evidence above summarized, showing nine outlets for the sale of beer within a radius of six- blocks of applicant’s store, and of the equivocal testimony of the Secretary of State, and the limited basis of opinion of the other witnesses, it cannot be said that the showing made by applicant of need for another beer outlet in that neighborhood was so plain and certain that reasonable men could not disagree thereon and that the action of the licensing authority in denying the application was therefore arbitrary and without good cause.
It is insisted in behalf of applicant that the subsequent issuance of a license for the sale of malt, vinous and spirituous liquors to another applicant on premises only three blocks away was an admission that there was a reasonable need and requirement for another licensed place in the neighborhood, and that the denial of a license to this applicant, and the granting of one to a later applicant was plainly arbitrary. It seems sufficient answer to note that the premises for which the license was granted were much further from the high school; also that under that license, liquor could not be sold to any person under the age of twenty-one nor legally drunk on the premises.
As to the second question, we cannot agree with the argument of counsel for applicant that, since the character of the applicant and the desires of the com[120]*120munity sufficiently appear, the Manager of Safety and Excise has no discretion except as to the reasonable requirements of the neighborhood.
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Mr. Justice Stone
delivered the opinion of the court.
On certiorari, the trial court reviewed the refusal of the Manager of Safety and Excise, as licensing authority of the City and County of Denver, to issue a license to defendant in error for the sale of fermented malt beverages at his grocery store. Such refusal was there held arbitrary and without good cause and the licensing authority brings error.
Separate statutory provisions, found in chapter 89, article 1, ’35 C.S.A., govern the manufacture and sale of such beverages, commonly referred to as 3.2% beer. The statute provides that a licensee shall be a citizen of the United States and resident of the State of Colorado, section 4(a), and of good character and reputation, section 4(b); that “In considering the issuance of licenses, the licensing authority, either state or local, shall consider the reasonable requirements of the neighborhood and the desires of the inhabitants as evidenced by petitions, remonstrances, or otherwise,” section 4(c), and that “No licenses shall be refused arbitrarily or without good cause,” section 6.
At the hearings held by the licensing authority, applicant submitted petitions signed by 170 “owners and residents of property within a radius of six blocks” of his grocery store, requesting that the application be granted. No remonstrance or petition to the contrary was presented. It was stipulated that there were nine [117]*117beer outlets within said radius of six blocks, of which five had drug liquor licenses, two had package liquor licenses, one had a hotel and restaurant liquor license, and one a fermented malt beverage (3.2% beer) license, such as sought by applicant here. Three witnesses beside applicant himself testified in his behalf. The first, George A.. Baker, secretary of state, testified that he had become acquainted with the store while he was collecting accounts prior to attaining his present office, and knew the neighborhood well. He was very indefinite as to the requirement of that neighborhood for another beer outlet, but testified, “I would say that it would probably be all right in that location. That is my opinion.” And again, “I imagine the neighborhood could take it * * The next witness, Eugene M. Marshall, who was a truck driver of the neighborhood, testified that he bought groceries at applicant’s store and it was necessary for him to go to a different place to get his beer; that he usually bought two or three quarts at a time and sometimes drank it all Saturday night so that he had none on Sundays and applicant’s store was open Sunday mornings. He also testified that he felt the need of a place nearer his home, “because it would be a lot more convenient for my mother or my wife to get it because they don’t drive and they would have to walk such a distance to get it. It is awful heavy”; that applicant’s store is only a block and a half from his home; that a store at, 29th and Humboldt, which has 3.2% beer, is only two blocks away, but he had been going farther for his beer because he “didn’t realize” that the latter place had it. The third witness, Abner H. Bell, by occupation a railroad fire lighter, testified that he obtained his beer at a drugstore having a liquor license, mostly two or three quart bottles at a time; that he bought groceries at applicant’s store on Sunday mornings and it was inconvenient not to be able to buy his beer at the same place.
The evidence also disclosed without contradiction that [118]*118the distance between applicant’s store and the Manual Training High School was only 176 feet; that students from the school were frequent visitors at the store to buy such things as paper and ice cream. Applicant testified as to their ages that, “They run between fifteen, sixteen, and some over eighteen. There is a lot of children over there over eighteen; they come back from the Army and they come back to school”; that he and his wife ran the store; that he planned to put the beer in the center of the main floor of the store and keep beer, pop and milk in the same cooler, where most of the time customers helped themselves, and that when he was making deliveries his wife was in sole charge of the store.
The Manager of Safety and Excise denied the application on the ground that the applicant had not established a need in the neighborhood for the license and, “In addition to the above, the record discloses that the proposed premises were one hundred and seventy-six feet from Manual Training High School and experience has disclosed that where an age group is present which is both above and below eighteen years that the temptation to minors to attempt to purchase beer is created to such an extent that a reasonable man would not, in my opinion, establish such a temptation. Your application is, therefore, denied.”
There is no evidence, and no contention, in behalf of the licensing authority that the character of the applicant or the desires of the inhabitants do not support the application. The two questions involved are, (1) whether or not applicant had presented such convincing and undisputed evidence of the “reasonable requirements of the neighborhood” for another outlet for the sale of 3.2% beer that a denial on the ground of failure in such proof was arbitrary and without good cause and, (2) whether the discretion of the licensing authority must here be restricted to, and limited by, evidence as to the reasonable requirements of the neighborhood. [119]*119There is discussion by counsel in the briefs as to whether or not under our present laws “fermented malt beverage” (3.2% beer) is an intoxicating liquor. We think that question unimportant here since, in any event, the Legislature had the right to prescribe by statute the regulation of, and limitations upon, its sale here involved.
As to the first question, there is no showing as to practical difference in content, price or choice between beer sold under license for sale of “fermented malt beverages” and that sold under license for the sale of “malt, vinous, and spirituous liquors,” and in view of the evidence above summarized, showing nine outlets for the sale of beer within a radius of six- blocks of applicant’s store, and of the equivocal testimony of the Secretary of State, and the limited basis of opinion of the other witnesses, it cannot be said that the showing made by applicant of need for another beer outlet in that neighborhood was so plain and certain that reasonable men could not disagree thereon and that the action of the licensing authority in denying the application was therefore arbitrary and without good cause.
It is insisted in behalf of applicant that the subsequent issuance of a license for the sale of malt, vinous and spirituous liquors to another applicant on premises only three blocks away was an admission that there was a reasonable need and requirement for another licensed place in the neighborhood, and that the denial of a license to this applicant, and the granting of one to a later applicant was plainly arbitrary. It seems sufficient answer to note that the premises for which the license was granted were much further from the high school; also that under that license, liquor could not be sold to any person under the age of twenty-one nor legally drunk on the premises.
As to the second question, we cannot agree with the argument of counsel for applicant that, since the character of the applicant and the desires of the com[120]*120munity sufficiently appear, the Manager of Safety and Excise has no discretion except as to the reasonable requirements of the neighborhood. While the statute specifically provides that the licensing authority shall consider these requirements in issuing the license, its consideration is not restricted to them. It does not provide that no license shall be refused where these requirements are satisfied; rather, it says they shall not be refused “arbitrarily or without good cause,” and upon certiorari the court is.not required to determine whether the applicant has sufficiently established these three requirements, but whether “said refusal was arbitrary and without good cause.” As we said in Downes v. McClellan, 72 Colo. 204, 210 Pac. 397, “This statute is not one for revenue only. It is one related to the exercise of the police power and to regulate the businesses enumerated. The power to license in such cases includes the power to refuse a license, even where statutory or preliminary requirements are complied with. [Citing authorities.] The power to refuse a license necessarily means having a discretion to grant or refuse, and mandamus will not lie to compel the granting of a license where it is not alleged and shown that the exercise of such discretion was arbitrary.” We think it was the legislative intent in passing this statute, as we held was its intent in adopting the very similar provisions regarding the issuance of licenses for the sale of malt, vinous and spirituous liquors, to vest a wide discretion in licensing authorities. Van DeVegt v. Commissioners, 98 Colo. 161, 55 P. (2d) 703; Board of County Commissioners v. Buckley, 121 Colo. 108, 213 P. (2d) 608.
It is urged by applicant that the proximity of his store to a high school may not be considered, for the reason that the Legislature, while prescribing a distance of 500 feet within which other alcoholic liquor may not be sold, makes no such provision as to fermented malt beverages. We cannot agree. The only difference is that in the case of other liquors the pro[121]*121hibition is mandatory, and in the case of 3.2% beer it is merely discretionary. The evidence as above noted disclosed that students both above and below eighteen years of age attend the school, which is located only 176 feet from applicant’s store and which they frequent for the purchase of paper and ice cream. Under the statute, 3.2% beer may legally be sold to those students who are eighteen years of age and may legally be consumed on the premises, and under the testimony of applicant himself he proposed to keep his beer in the same cooler with the milk and pop where customers served themselves. There would thus be the most wide open invitation for the purchase of beer by the eighteen-year-old students, and the temptation also for them to procure it for the use of younger students who might visit the store with them. Surely it cannot seriously be urged that under such circumstances the Commissioner of Safety and Excise acted arbitrarily and without good cause in denial of a license for the location here sought, and that, in our words of the Van DeVegt case, “Reasonable men from a fair and honest consideration of the evidence must have arrived at a contrary conclusion and granted a license accordingly.”
The judgment of the trial court is reversed.
Mr. Justice Holland dissents.