Shepherdstown register. [volume] (Shepherdstown, Va. [W. Va.]) 1849-1955, 1855-05-05
sIEPHERD5T0WN JETFERSON COUNTY, w. SATURDAY MOREI

said application be refused, the refusal
shall be entered Of record, and License
shall not be granted to the applicant before
the next May term, unless by court COM
posed Of the same justices to whom the
fist application was made, or majority
oftAe acting Justices Of the county or cor
poralion.
The fourth section of ch. So, p. 207,
.pro7ldes, that no person shall, without IL
cense, keep an ordinary, house of private
entertainment, or bowling saloon or alley.
And the eighth section provides, that the
receipt for the tax on such license as is
mentioned in the fourth section shall be
produced to the court applied to, before
such application is considered. If the
court reject the application, the tax shall
be refunded 20 the person who paid it.
One the one hand it was insisted at the
bar, that the terms may grant such IL
.cense," are either absolutely imperative,
making il the county courts duty to grant
the license whenever the applicant produ-
ces the proper receipt for the tax, and
brings himself within the requirements Of
the fourth section of ch. 96, or else indi-
cate purpose to enjoin a duty to be per-
formed With sound discretion, having a
regard TO tie public convenience, and
looking to the objects contemplated by the
law; and that the Justices action in re-
fusing license may be revised and con-
troIed in superior court by means of a
.mandomus.
On the other hand, it was insisted, that
the word MAY is here used in its popular
sense--that it is permissive, and is en-
ployed TO grant an authority, coupled with
discretion, which discretion, from its
very nature, does not admit Of being gui-
ded or superseded by the order of any su
perior or appellate tribunal.
In considering these opposing views,
we may be greatly aided by reference to
previous legislation Oh the subject. Judge
Daniel then quoted Acts Of l705, 1913,
and I7G2--all, he said, "expresslvc of a
purpose to confer on the justices authoTI-
tv to consider, and act in the matter, free
from all control other than the dictates of
their own Judgment" And quoting the
kindred provisions in the second Revised
Code Of 1919, ch. 240, s |, and in the
Acts Of 1910, ch. 2, s l3, he thought 1t
obvious that there was no such variance
in them from those before cited, as would
indicate any change in the policy Of the
legislature.
Is anything 10 be found in the third sec
ton of chap. 0G, of the Code Of l649,
whence to infer such change of policy {!
In a critical and detailed examination Of
that section, and comparison of its I'M
port with that of former laws, the Judge
said
And when we look into the history Of
our legislation on the subject, instead Of
finding there any thing from which to in.
fer that the unjust or improper withhold
ing of licenses from the citizens applying
for them was an evil to be apprehended
and guarded against, we shall find that the
legislatures conviction of the existence Of
present evil and fear of future mischief,
were the result of views and consldera-
tions of an entirely different nature.
Then, after citing several strong enact
ments, manifestIy dictated by the fear of
having too many tippling houses, Judge
ID. proceeds {:
Numerous other instances Of the like
kind might be cited, and in nearly every
law on the subject, if we do not find the
preamble setting forth the existence Of per-
nicious consequences growing out Of the
multiplicity of such houses, and declaring
the earnest desire Of the legislature TO
guard against the evil, we shall find res
friction after restriction on the authority
given 10 the justices, showing manilesly
that the legislature had iears-nOt that the
right Of applicants or the convenience Of
the public might suffer from failure OF
the courts 10 allow sufficient number Of
such houses, but that the peoples morals
might sustain injury from the granting of
too many licenses.
| can discover in the act Of ls49 no in
dication of change of legislative pur-
pose-nothing to show that the fitness,
propriety, and reasonableness of applica-
tions for such licenses are not still left TO
the consideration, discretion, and Judg-
ment of the justices, as fully as by former
laws.
With this view Of the nature of the au-
thorjty given TO the county courts, can
not see how, when they have heard an
application, and in the exercise OF their
discretion have pronounced 4 judgment OF
refusal agains! il, the superior court can
undertake TO revise the judgmentby means
of mdlldamuS, without running counter
10 the law, as settled by numerous decis-
ions of the courts, as well in England as