CHARLESTON.

#### H. L. Flanagan *v.*Town of Petersburg

(No. 6496)

Submitted October 15, 1929.

Decided November 5, 1929.

*Forman & Mitchell,*for plaintiff in error.

*CaThoum & Calhoun,*for defendant in error.

Litz, Judge :•

Upon the petition of H. L. Flanagan, the circuit court •awarded a peremptory writ of mandamus commanding Dr. Glen Moomau, mayor, L. L. Cooperider, recorder, and W. D. Trent, Eston Harmon, Fred Harmon, Wade Pexrode and Wilson Deadrick, council, of the town of Petersburg, Grant uounty, to issue to the petitioner a pool room license.

The answer and return of the respondents to the petition and alternative writ of mandamus, denied that Flanagan was a fit person to operate a pool room, and averred an established policy of the town, in the interest of public morals, to refuse *112all applications for pool room licenses. As evidence of unfitness it is alleged and proved that Flanagan is delinquent in the payment of taxes to the town and has been convicted npon his own confession before a justice of assault and battery. Petitioner contends (1) that these facts are insufficient to show that he is, not a fit person to operate a pool room, and (2) that (according to the decision in *State ex rel. Hardman*v. *Town of Glenville,*102 W. Va. 94) a municipality may not, in the interest of public morals, maintain the policy of rejecting all applications for pool room licenses.

Chapter 102, Acts 1919 (amending chapter 32, Code 1916) conferred upon the clerk of the county court authority to issue pool room licenses without specifically providing for the issuance of municipal license where the business is to be conducted in a city, town or village. Construing the amendment, in *Bissett*v. *Town of Littleton,*87 W. Va. 137, the Court said: “Prior to the amendment * * * such licenses were issuable only when authorized by the county court; now * * * they are issued by the county clerk upon proper application filed with him, but revokable by the county court for good cause shown upon petition and notice to the licensee, and an opportunity to be heard * * *. And prior to the amendment, when the business was to be carried on in an incorporated city, town or village, such license was permitted only when authorized * * * by the council or license court thereof, as well as by the county court.” *State ex rel. Kelley*v. *City of Grafton,*87 W. Va. 191, held: “Since the enactment of chapter 102, Acts 1919, the concurrent discretionary power which the law theretofore had conferred upon a municipal corporation in the granting of licenses for acts or business to be done or carried on within its jurisdiction no longer remains, and, though the city council or other governing body may still require the state licensee to obtain a municipal permit or license, and pay a fee therefor, as a condition of the lawful right to do the act or carry on such business, yet it no longer possesses authority to refuse to grant such license upon the proper application therefor and tender of the requisite fee.” By chapter 143, Acts 1921, the council of a city, town or village is given “plenary power and authority therein * * * to *113license or prohibit the operation of pool or billiard rooms, and maintaining for hire of pool or billiard tables, and in event any such business is licensed, to make and enforce reasonable ordinances regulating the same. ’ ’ Sections 35 and 35a, chapter 109 of said Acts, read together, also confer upon the municipal governing body exclusive jurisdiction in the granting of pool room, licenses where the business is to be conducted in a city, town or village. In *State ex rel. Hamrick*v. *County Court et al.,*92 *W.*Va. 222, which construes sections 35 and 35a, chapter 105 of said Acts (without considering chapter 143 thereof) it is stated: “Section 34, chapter 32, Code 1918, gave the county or license court who authorized any licenses, authority, for good cause shown, to revoke the same upon the petition in writing of any inhabitant of the county or town; but provided that the licensee should first have reasonable notice thereof and the privilege of being heard in person or by counsel. As amended by chapter 102, Acts 1919, this statute limits the authority of revocation to the county court; but section 35 of said chapter 32, as amended by chapter 109, Acts 1921, gives cities and towns exclusive power to grant licenses, to be exercised therein, and further provides that they -shall have all the rights and powers thus granted to county courts, which would necessarily include the power to revoke as well as to grant licenses. Ye are not here dealing with the right of revocation, but with the power of the respondents to withhold licenses to operate pool tables. The return of the county court, in addition to what is answered by the mayor and council of said town, is that their refusal to grant a license to petitioner was based on the fact that under the provisions of chapter 109 of the Acts of 1921, they were without authority or jurisdiction in the premises, without the favorable action of the council of said town, inasmuch as the applicant desired to conduct his business within the corporate limits of said municipality. Section 35a of said chapter controlling the issuing of such license provides: ‘Every person desiring a license for the purpose of keeping, for public use or resort, a bowling alley, pool table, billiard table, bagatelle table or any table of like kind, shall apply in writing to the county court, and such writing shall state *114tbe bouse and fully describe tbe place for wbieb sucb license is desired, and tbe court may *at its discretion grant or refuse such application.’*Section 35b (35) provides that where' tbe place in wbieb sucb business is to be conducted is situated in an incorporated city or town, tbe council or other governing body thereof shall have exclusive power and right to grant sucb license and all tbe other powers therein granted to tbe county court. Tbe town of Cass is a municipality created under chapter 47 of tbe Code, and its powers generally are limited thereby; but tbe provisions of said chapter 109 of tbe Acts of 1921 clearly apply to all municipalities. For some reason tbe legislature chose to confer on tbe county courts and tbe councils of municipalities discretion to grant or refuse licenses for tbe purposes mentioned in said section. We decided recently that city councils proceeding under special charters and ordinances enacted pursuant thereto could not exercise their power arbitrarily by granting to some and withholding from others licenses to carry on a lawful business, and thát as a condition precedent they must by ordinance prescribe general rules applicable to all. *Houvouras*v. *City of Huntington,*90 W. Va. 245; *Stale ex rel. Haddad*v. *City of Charleston,*92 W. Va.[57], decided at tbe present term. Tbe reason for denying sucb arbitrary authority is that its exercise, whether by statute or by ordinance, would render either unconstitutional and void. *Yick Wo.*v. *Hopkins,*118 U. S. 356; *Hagerstown*v. *B. & O. R. R. Co.,*107 Md. 178. Tbe question now presented is: Do these authorities condemn tbe statute which purports to give respondents tbe discretion to grant or refuse licenses to keep for public use or resort a pool table? If we can, it is our duty to give sucb construction to tbe statute as will uphold it against attack upon constitutional grounds. While by its language arbitrary power might possibly be inferred, we think it must not be given sucb construction as would render it void on constitutional grounds.” Tbe discussion quoted was obiter. Tbe evidence, establishing tbe unfitness of tbe applicant, (as was held) justified tbe town council in refusing tbe license though it possessed only a reasonable discretion in tbe premises.

*115
      *Houvouras*v. *City of Huntington,*and *Haddad*v. *City of Charleston,*involving restaurant licenses are not in point. *Yick Wo*v. *Hopkins,*involving “the right of petitioners to carry on, in the accustomed manner, their harmless and useful occupation (of laundrymen) on which they depended for a livelihood”, is also without application. *Hagerstown*v. *B. & O. R. R. Co.,*in which the railroad company was prosecuted under a city ordinance for maintaining within the city limits stock pens for loading, unloading and caring for horses, cattle and other live stock delivered to it at regular stations in the course of its business, is likewise inapplicable. In *State ex rel. Hoffman*v. *Town of Clendennin,*92 W. Va. 619, the municipality was compelled by mandamus to issue pool room license to relator on the ground that no substantial reason had been shown for discriminating against him in favor of other applicants. The opinion of the case expresses the view that the keeping of pool tables for public resort and use is a legitimate business recognized as such by state policy, and that the exercise of an arbitrary power to prevent the carrying on of a lawful business would render the act conferring the power unconstitutional and void. Proceeding with the theory that the operation of a pool room is a legitimate business, *Hardman*v. *Town of Glenville,*cited, holds, in effect, that a municipality is without authority to refuse a license for such purpose except upon the ground that the applicant is not a fit or proper person to exercise the privilege. In denying the right of the municipality, in the interest of public morals, to refuse all applications for such licenses, Judge Miller, speaking for the Court, in that case, said: “Respondents first plead the provisions of section 28 of chapter 47 of the Code, conferring upon them, they say, plenary powers, among other things, ‘to license, or prohibit, the operation of pool and billiard rooms and maintaining for hire of pool and billiard tables,’ wherefore, they aver, they have discretionary power to grant or withhold such licenses, and that none such have been granted for the fiscal year beginning July 1, 1926, and that a similar license had been also denied to one J. 'W. Lorentz. They further say that in this .action they were governed, first, by their sound judgment and due and reasonable discretion, and with the firm belief that the conducting *116of pool rooms .in tbeir municipality would not advance tbe moral, social or educational interests of tbe residents of tbe municipality, but would be detrimental thereto; moreover, that tbe moral force of said town was earnest and active in its opposition to tbe granting of sucb licenses, evidenced by a petition filed with respondents before tbeir action was taken, praying tbat tbey should refuse licenses for tbe operation of pool rooms and billiard tables within tbe corporate limits of said town, which was signed by all tbe resident ministers and several members of tbe different churches and other prominent citizens, and by a large number of residents of said municipality, who bad personally requested respondents to refuse to grant sucb licenses, which petition tbey exhibited with tbeir return. And as a further and additional ground for their action, respondents answered tbat there is located within said municipality a State Normal School, having a large attendance of boys and girls from all tbe central counties of tbe state, some thirty in number, and tbat tbe president of said institution, who was also one of tbe members of said council, stated at tbe meeting at which said action wras taken, tbat many of the parents wdio send tbeir boys over eighteen years of age to said school, tbat being tbe age limit for boys to play at pool or loiter in sucb pool rooms, bad seriously complained about tbe operation of sucb pool rooms in said town, representing that tbeir boys spent too much time and money therein, and were frequently thrown in tbe company of and associated with all kinds and classes of boys and young men, and tbat tbe language used therein was not chaste, pure and refined, but on many occasions was vulgar and profane, and tbat unless tbeir boys could be free from sucb influences tbey would cease to patronize tbe school; wherefore respondents say tbat tbe operation of sucb pool rooms within said municipality is hurtful and detrimental to said Normal School. We think it must be regarded as settled law of this state that tbe statute thus invoked does not confer upon municipal authorities arbitrary and uncontrolled power to the extent claimed in this case; tbat tbe discretion conferred to grant or refuse licenses to operate pool and billiard tables must have some reasonable foundation in fact, justifying its exercise. *State ex rel.*
      *117
      *Hamrick*v. *County Court,*92 W. Va. 222; *State ex rel. Hoffman*v. *Town of Clenclenin,*Id. 618; *Blissett*v. *Town of Littleton,*87 W. Va. 127.” Tbe ease is annotated in 53 A. L. R. 149, and is also tbe subjéet of adverse criticism in Volume 33, No. 1 (December, 1926) West Virginia Law Quarterly, page 116, and Volume 34, No. 3 (April, 1928) West Virginia Law, Quarterly, page 312.

Tbe authorities, generally, bold that because of its non-useful character and harmful tendency the business of operating pool or billiard rooms may be prohibited by the Legislature in the exercise of its police power. 6 R. C. L. 207, 208, 220; 20 A. L. R. 1482; 29 A. L. R. 41; 53 A. L. R. 143; 63 L. R. A. 337; 41 L. R. A. (N. S.) 153. Holding that an ordinance of the city of South Pasadena, California, prohibiting the keeping or maintaining of any hall or room in which billiard or pool tables were kept for hire or public use, did not contravene the Fourteenth Amendment of the Federal Constitution, the United States Supreme Court in the case of *Murphy*v. *People of the State of California,*225 U. S. 623, stated: ‘ ‘ That the keeping of a billiard hall has a harmful tendency is a fact requiring no proof, and incapable of being controverted by the testimony of the plaintiff that his business was lawfully conducted, free from gaming or anything which could affect the morality of the community or of his patrons. The fact that there had been no disorder or open violation of the law does not prevent the municipal authorities from taking legislative notice of the idleness and other evils which result from the maintenance of a resort where it is the business of one to stimulate others to play beyond what is proper for legitimate recreation. * * * As said in *Booth*v. *Illinois,*184 U. S. 425, 429: ‘A calling may not in itself be immoral, and yet the tendency.of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the State thinks that certain. admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of *118the matter, they can say that the statute enacted professedly to protect the public morals has no< real or substantial relation to that object, but it is clear, unmistakable infringement of rights secured by the fundamental law. ’ Under this principle ordinances prohibiting the beeping of billiard halls have many times been sustained by the courts. *Tanner*v. *Albion, 5*Hill. 121; *City of Tarkio*v. *Cook,*120 Missouri, 1; *City of Clearwater*v. *Bowman,*72 Kansas, 92; *City of Corinth*v. *Crittenden,*94 Mississippi, 41; *Cole*v. *Village of Culbertson,*86 Nebraska, 160; *Ex parte Jones,*109 Pac. Rep. 570. Indeed, such regulations furnish early instances of the exercise of the police power by cities. For Lord Hale in 1672 (2 Keble, 846), upheld a municipal by-law against keeping bowling-alleys because of the known and demoralizing tendency of such places.”

It does not appear that the no license policy of Petersburg has been embodied in an ordinance. But whether or not its governing body is, by virtue of sections 35 and 35a, Chapter 109 and Chapter 138, Acts 1921, vested with absolute discretion to refuse pool room licenses with or without an ordinance declaring such policy, the evidence of unfitness of the applicant is sufficient to support its action in the exercise of a reasonable- discretion. The judgment of the circuit court is therefore reversed.

*Reversed.*