CHARLESTON.

#### State *ex rel.*John Lockett *et al. v.*Board of Commissioners of The City of Huntington

(No. 6002)

Submitted May 17, 1927.

Decided May 24, 1927.

*Mandamus*— Mandamus *Does Not Lie to Compel Issua/nce of Pool and Billiard License in Connection With Restaurant, to Applicants Who Harbored Undesirable People (Acts 1921, c. 109,*§ *SSa).*

Mandamus will not lie to compel municipal authorities to grant a license to conduct a pool and billiard business in connection with a restaurant, where it is shown that the applicants have theretofore in the operation of their restaurant and rooming house, located at another place in the city, permitted bootleggers, lewd women, and police court characters to frequent these places of business in which numerous arrests have been made for infractions of law. The refusal is based on sound discretion for the protection of the public welfare; has not been arbitrarily or capriciously exercised, and will not be controlled by mandamus.

(Licenses, 37 C. J. § 97; Mandamus, 38 C.’J. § 356.)

(Note: Parenthetical references "by Editors, C. J. — Cyc. Not part of syllabi.)

Original proceeding by tbe State, on the relation of John Lockett and another, for mandamus to be directed to the Board of Commissioners of City of Huntington.

*Writ refused.*

*J. J. Quinlan,*for relators.

*George S. Wallace*and *Philip P. Gibson,*for respondents.

Lively, Judge:

By this mandamus proceeding, the petitioners, John and C. A.-Lockett, seek to compel the Board of Commissioners of the City of Huntington, to issue them a- license to conduct' a pool room and billiard hall at No. 830 Seventh Avenue, Huntington. This business will be operated in conjunction with petitioners’ restaurant in the same building, they having *724recently purchased this property and spent $1,200.00 in re-modelling it for these and other purposes. ' The petitioners formerly conducted a rooming house and restaurant at 808-*808Y2*Third Avenue in the same city.

It is averred in the petition for the alternative writ, that on January 1, 1927, the petitioners obtained a license to conduct their restaurant at 808 Third Avenue, (which they had been running for a number of years), that having purchased the property at 830 Seventh Avenue, they had their restaurant license reissued so as to apply to that location; that in May, 1927, they applied to the Board of Commissioners to grant them a license to operate a pool room and billiard hall at the new address, but that it was refused, upon the ground that a petition opposing the granting of the license had been filed at a previous meeting of the Board, “and for other causes duly considered by the commissioners;” that their effort to have the matter reconsidered was unavailing, the Board refusing to do so, “for good cause shown”; that petitioners have always conducted themselves as law abiding citizens, and have never been charged with any violation of law. It is further' averred that the Board has no power to fix the qualifications of applicants for pool room licenses; and that if the Board has the power to refuse such licenses, it must not do so arbitrarily, as was done in the instant case, but their refusal must be based upon reasonable grounds.

In their return to the alternative writ, the Board of Commissioners deny that the petitioners have always been good and law abiding citizens, ■ and aver that the restaurant and rooming house operated by petitioners at No. 808 Third Avenue, were not well conducted, but were the resort and rendezvous for loose women and dissolute characters, and that these facts were brought to the attention of the Board at the time they passed upon petitioners’ application for a pool room license at No. 830 Seventh Avenue. Respondents further aver that under the provisions of the Code, and the municipal charter of Huntington, the following ordinance was passed:

> “Section 4: Every person desiring a license for the purpose of keeping for public use or resort, *725a bowling alley, pool table, billiard table, bagatelle table, or any table of like kind, shall apply in writing to the Board of Commissioners of the City, and sneh writing shall state the house and fully describe the place for which such license is desired, and the Board of Commissioners, may, in its discretion, grant or refuse such application. ’ ’

And that in refusing petitioners’ application the Board had acted under the authority conferred by this ordinance.

Respondents further say that their action in refusing to grant petitioners a pool room license, was based upon a petition filed with them by citizens owning property in the vicinity of No. 830 Seventh Avenue, who claimed that to allow petitioners to establish their pool room in this locality would greatly damage their properties because of the. disreputable persons who would frequent the place, and, upon the belief of the Board that they were acting for the welfare of the city in refusing to grant a pool room license to persons who had previously conducted their restaurant and rooming house in such a manner as to make them a rendezvous for the dregs of human society, with the likelihood that the same condition of affairs would soon exist at their new place of business.

According to affidavits of three members of the police force of the City of Huntington, two of them being lieutenants, filed in support of the return of the Board, the restaurant and rooming house operated by the petitioners at 808-808% Third Avenue, were the headquarters for lewd women, dissolute men and people of general bad character; and that ‘ ‘ they not only occupied and frequented the building in which the restaurant and rooming house were conducted, but they crowded and overflowed into the sidewalk in front of the place and about the door”; that the police from time to time were sent to the premises to preserve and restore order therein; that the neighborhood at and surrounding 830 Seventh Avenue is a respectable neighborhood, and that if the petitioners are granted permission to operate a pool room and billiard hall at said premises, the same sort of persons who frequented the petitioners’ former place of business would follow to the new location and would adversely affect that neighborhood *726as a residential section, and destroy property values; that a number of arrests bave been made in petitioners’ rooming bouse and restaurant at 808-8081/2 Third Avenue, and prostitutes and men engaged in tbe handling of liquor bave been taken into custody.

James Murphy, one of tbe Board of Commissioners, filed his ‘affidavit in support of tbe respondents’ return, in which be states that when tbe application of the petitioners was filed with tbe Board, they were advised that tbe Board would take time to investigate whether tbe license should be granted; and that thereafter, tbe affiant made investigations to aid him in determining whether the application should be granted; that later a petition in writing protesting against the issuance of the license, signed by property owners in the vicinity of No. 830 Seventh Avenue, was received and held for investigation ; that subsequent to this time a hearing was held upon said application, at which hearing both the applicants' and protestants were heard, and the Board of Commissioners refused the application on the ground of a protest and “for other causes duly considered by the commissioners”. The affiant corroborates the affidavits of the police officers as to the character of the place formerly run by petitioners at 808 Third Avenue, and says that with the evidence before it he believes the Board of Commissioners was justified in refusing petitioner’s application for a pool room license, in order that the welfare of the City of Huntington might be promoted.

The petitioners filed a number of affidavits in support of their petition. Several of these affidavits were to the effect that the character of the neighborhood in Seventh Avenue near where the petitioners desire to operate their pool room is such that it would not be injuriously affected by the conducting of their place of business in that locality. Petitioners made affidavit to the fact that they had never been interested in any business in the City of Huntington except their restaurant business. Affidavits were also filed to show that the police records and justice of peace and court records failed to disclose that either of the petitioners had ever been charged with any' violation of law.

*727There can be no donbt that, the Board of Commissioners had the power under the ordinance heretofore quoted to exercise a reasonable discretion in granting or refusing to grant the petitioners’ application for a pool room license. Sec. 6, Chap. 11, Acts 1921 (Municipal Charters); and Sections 35 and 35a, Chap. 109, Acts 1921. And this being true, the question which controls here is whether the Board of Commissioners, having discretion to grant or refuse pool room licenses, can refuse such license to an applicant to operate pool tables in connection with a restaurant, it being shown that the restaurant has heretofore (when located at 808 Third Avenue) catered to and has been frequented by women of ill repute, bootleggers and undesirable persons of like character ? Has the Board abused its discretion and acted arbitrarily in refusing to grant the license?

We have held that the operation of pool and billiard tables is a legitimate business and one not *malum per se,*and that the discretion conferred to grant or refuse licenses for such a business must not be exercised arbitrarily; that its exercise must have some reasonable foundation of fact, and not be governed by vague and fanciful reasons. *Hardman*v. *Town of Glenville,*102 W. Va. 94. But, “When the licensing cers, after examination and consideration honestly and impartially made, can point to some reasonable basis for refusal, their judgment and discretion will not be disturbed by the courts.” *State ex rel. Hoffman*v. *Clendenin,*92 W. Va. 618, 29 A. L. R. 37. And, “The exercise of such discretion does not necessarily involve the conformance of the applicant to certain definite standards which can be made known in advance, but requires the exercise of personal judgment and the discretion of the licensing officers, and which honestly made can not be made subject to review by the courts, by writ of mandamus or otherwise. All that is required in such case is that the discretionary decision shall be the outcome- of examination and consideration.” *State ex rel. Hamrick*v. *Pocahontas County Court,*92 W. Va. 222. In the. instant case the Board of Commissioners says that it has refused petitioner^’ application only after an examination has been *728made and due consideration given to tbe matter. And there is some basis of fact to support the finding of the Board, that because of the character of the business formerly conducted by petitioners at 808 Third Avenue it would be for the welfare of the City of Huntington, and especially those citizens and property owners living in the vicinity of 830 Seventh Avenue, not to permit petitioners to operate a pool room and billiard hall there, with its probable attendant evils. We cannot say that the Board has arbitrarily or capriciously exercised its discretion. Generally, mandamus will not issue to control discretion expressly given. *County Court*v. *Holt,*61 W. Va. 154; *Buxton*v. *O’Brien,*97 W. Va. 343; *Ellis*v. *Road Commission,*100 W. Va. 531.

The writ will be refused.

*Writ refused.*