ON MOTION EOR REHEARING.
Brooke, J.Our attention is called to the fact that in our former opinion, ante, 697 (134 N. W. 3), we reached our *701conclusion upon an erroneous understanding as to the facts. We gathered from the record, as it now appears erroneously, that relator’s application was for a license which had been unissued to any person for an entire license year. It now appears that the license for which application was made by relator was in force from May 1,1910, to May 1, 1911, but that the holder did not apply for a renewal thereof prior to its expiration. Relator made application therefor; and it is his contention that, being a “duly qualified person,” he was entitled to the writ of mandamus under the intimation contained in our former opinion.
Had the facts been as we understood them, it is obvious that it was unnecessary to determine more than' that, under the case there presented, relator was not entitled to the relief sought. Under the situation actually presented, we must decide whether a new applicant is entitled to take the place of the holder of a license, when the old holder declines, for any reason, to ask for a renewal thereof, where the ratio of saloons to population is greater than 1 to 500.
After mature deliberation, we have concluded that he has no such right. We do not mean by this to say that such new applicant may not be granted a license in the plaee of an old licensee, under the power of selection vested in the licensing body; but we are of opinion that the total number of licenses to be granted must be held to have been diminished by one on account of the failure of an old holder to apply for a renewal; that as to that license it must be held to have been voluntarily surrendered, within the meaning of the act. We are led to this conclusion by a consideration of the evident purpose of the legislature, as evidenced by the whole act, which was to gradually work a reduction of the number of saloons until they reached the ratio fixed by the statute, and to effect this end without undue hardship to those already engaged in the business. It is, we think, clear that, but for this latter consideration, the legislature would have at onóe fixed the number of licenses to be granted at the statutory ratio.
*702These conclusions do not necessarily mean that the legislature sought to, or did in fact, create a property right in the holder of a license to a renewal thereof. It means only that, so long as the holder of a license is able to meet the requirements of the licensing body, and move it to exercise its discretionary power of selection in his behalf, he shall be permitted to remain in the business, even though by so doing the number of saloons continues to be higher than the ratio fixed by the statute. When he fails to apply for a renewal, then the number to be granted is reduced by one, if the number in force is greater than the statutory ratio. Any other construction would clearly prevent any sensible reduction in the number of saloons, to effect -which was, as we have seen, the-cardinal object of the legislation.
Our former conclusion denying the writ is affirmed.
Steere, McAlvay, Stone, Ostrander, and Bird,. JJ., concurred with Brooke, J.