The relator, plaintiff in error, brought this action against the defendants in error, praying for a writ of mandamus, directed to defendants, commanding them to grant to him a permit or license to change the location of his saloon in the incorporated town of Kemmerer. A general demurrer to the petition was sustained by the District Court, the petition dismissed and judgment rendered against relator for costs. Seeking a reversal of that judgment, he brings the cause to this court alleging errors.
B'riefly stated, the substance of the material allegations of the petition are, that on October 23, 1916, the town council of said town, by virtue of an ordinance thereof, issued to relator a liquor license authorizing him to sell intoxicating liquors' in a certain one-story frame building situated on lot 18, in block 13, in said town. That since said date he had conducted a saloon at said place and had observed the laws of the state and ordinances of the town with respect to said business. That on November 6, 1916, he applied to the council of said town for a permit or license to change the location of his saloon to a building situated on lot 12, in block 13, the same being upon what is known as the “Triangle," upon the ground that his then location was inadequate for the conducting of his business; that he had been given to understand by defendants that the council preferred that he establish his business at the latter location; that in pursuance of such understanding he had rented the *215building on said lot 12, and would be greatly damaged if he was not permitted to change locations accordingly. That there was no law of the state or ordinance of the town prohibiting such change of location. That other saloons were conducted in the same block and vicinity of said lot 12, and that the council had theretofore permitted other saloonkeep-ers to change the location of their saloons in said town. That defendants wilfully, unreasonably, capriciously, arbitrarily, and without just cause or reason refused to permit him to so change the location of his saloon.
■ The first error assigned is the refusal of the court to permit relator, before argument on the demurrer, to amend his petition by inserting certain words therein. What those words were does not appear in the record, but it is stated in his brief that they were, “While the said council did later on the same day, grant the application of one Sturcil for a license to sell liquor on the Triangle.” We do not regard the ruling of the court as prejudicial to plaintiff, for, if the amendment had been permitted, it ought not to have changed the ruling upon the demurrer.
As to the sufficiency of the petition to state a cause of action, counsel state their claim in their brief as follows: “Our claim, in brief, is that the town council of the town of Kemmerer had no right to discriminate between relator and others engaged in a similar business; that under the law, it must treat all persons alike, and when relator brought himself within the purview of the statutes of the state and the ordinances of the town of Kemmerer relating to the licensing and sale of intoxicating liquors, there was nothing for the defendants to do but to grant him the relief prayed for.” For the purposes of this case, that statement may be conceded. But the facts stated in his petition do not bring him within the purview of the statute. The statute makes it unlawful for any person to sell intoxicating liquors without a license. (Sec. 2832, Comp. Stat. 1910.) And the next section (2833) provides: “Before any license shall be granted for the sale of liquors, the applicant therefor shall file his written application for such license in the of*216fice of the county clerk. Said application shall contain a full and accurate description of the building in which liquors are to be- sold, and a full and accurate description of the premises on which such building is located. * * * * All county licenses shall be granted by the boards of county commissioners,” etc. It’ is clear that no person can lawfully sell intoxicating liquors at any place within a county without a license from the board of county commissioners, and that such license when obtained must be for a definite and accurately described building and location, and does not authorize a sale in any other building or location. While it is not directly alleged, we assume that relator has such a license for his present place of business. It is equally clear that the provisions of sub-division eleven, Sec. 1578, empowering incorporated cities and towns “To license, regulate or prohibit gambling houses and the sale of intoxicating liquors,” are in addition to the county license, and that both are required: to authorize such sale. The town cannot make it lawful to sell intoxicating liquors at a place not authorized 'by the county. In this case the petition contains no averment that plaintiff has a county license to sell liquors elsewhere than in a certain one-story frame building situated on lot 18, in block 13, in said town; and the court will not require the council of the town, in the absence of a county license, to attempt to authorize the establishment of a saloon at a place not authorized by the county. The demurrer to the petition was properly sustained.
It is also argued that the petition was dismissed by the court without giving relator leave to amend after the demurrer was sustained. On that point it is sufficient to say, that the record fails to disclose any application or request to be permitted to do so, and counsel do not claim that any such request was made and refused. No prejudicial error being made to appear, the judgment is affirmed.
Potter, C. J., concurs.Affirmed.