State ex rel. Puyallup v. Superior Court

Dunbar, J.

On the 26th day of November, 1907, the city of Puyallup, acting through its mayor and city council, issued to William Meservey and Gporge West, copartners, a retail liquor license, for the term of one year. On the 10th day of June, 1908, the said city council by the affirmative vote of five of its councilmen, duly passed and adopted a resolution revoking all outstanding liquor licenses theretofore issued, and authorized the mayor and city clerk to refund to the holder of any license the value of the unexpired term thereof, and made said revocation to take effect on the 1st day of July, 1908. On the 30th day of June, 1908, said licensees appeared before the superior court of the state of Washington for Pierce county, and secured an order and writ of review from said court, requiring the city of Puyallup, petitioner here, to make complete returns to said court of the action of the petitioners, or any of them, in attempting or purporting to revoke the license aforesaid. The petitioners appeared before said court on the 3d day of July, 1908, and moved to quash said order and writ of review, and all subsequent proceedings had by said court, upon the ground that said court had no jurisdiction of the subject-matter upon which said application for writ of review was based. This motion was overruled, upon the ground that the city council was without authority to revoke an outstanding liquor license before the expiration thereof, except for cause. Hence, this petition for a writ of prohibition to prevent the superior court of Pierce county from proceeding in the cause.

Preliminary to the argument on the merits, there was some contention that the writ of prohibition should not issue. Since the decision in the case of State ex rel. Townsend Gas & Electric Light Co. v. Superior Court, 20 Wash. 502, 55 Pac. 933, we have uniformly held that litigants were not entitled to extraordinary legal remedies, whether the court ivas acting with or without jurisdiction, if there Avas a legal remedy by appeal. But the converse has been as uniformly held, viz., that such writs should issue if an appeal be not adequate. In this case it plainly appears that an appeal Avould not be an adequate remedy, for the reason that the license in question Avould expire before the case could be heard on appeal. It was suggested that in such cases the petitioners should have applied for a writ of review, but the result would be exactly the same whether we determined the case on an application for a writ of review or prohibition. There is no occasion to have the record certified, for it is admitted that the only question sought to be brought before this court is the question of the construction of a statute, and the contention is over the form rather than the substance.

The principal case cited and relied upon on the merits of this case, viz., State ex rel. Aberdeen v. Superior Court, 44 Wash. 526, 87 Pac. 818, in which this identical question was involved, was determined by this court on a petition for a writ of prohibition. This case, we also think, determines the merits of this controversy. It is urged by the respondent, and was decided by the trial court, that the case was not in point, for the reason that the question in that case was the right of the court to review the action of the council in determining that facts existed showing a violation of the law by the saloon keeper, justifying a revocation of his license; but that in this case it is not the right of the city to inquire whether cause for revocation exists that is in issue; that the question is, did the city have power under the statute to revoke licenses without cause ? It is conceded that the legislature might have conferred this arbitrary power upon the city council, but it is urged that it did not do so. Pierce’s Code, §5714 (Bal. Code, § 2934 ), provides:

“The mayor and council, or other governing body of each incorporated city, incorporated town or incorporated village in the State of Washington, shall have the sole and exclusive authority and power to regulate, restrain, license or prohibit the sale or disposal of spirituous, fermented, malt or other intoxicating liquors within the corporate limits of their respective cities, towns or villages; provided, that the annual license fee for the sale of such spirituous, fermented, malt or other intoxicating liquors shall, in no instance, be less than three hundred ($300) dollars, or more than one thousand ($1,000) dollars, which said license fee shall be paid annually, in advanee to the treasurer of the city, town or village, who shall pav ten (10) per cent thereof into the general fund of the state treasury, and hand the remaining ninety per cent into the general fund of the city, town or village treasury.”

Section 5715 (Bal. Code, §2935), provides:

“In granting the license authorized by this act, the proper authorities shall exact from each applicant a bond in the sum of one thousand (1,000) dollars, conditioned that the applicant shall keep an orderly house and will not sell liquors to minors. He shall in case of violating'the terms of the license forfeit the same, and be subject to the other penalties provided by law for illegal selling of spirituous, fermented, malt or other intoxicating liquors; the authorities granting the license shall have full authority and power to declare it forfeited for the violation of any of the terms upon which it is granted.”

It is insisted that, construing these two provisions together, it was the legislative intention to give the city council jurisdiction only for cause, and that the latter portion of § 5715 would be meaningless and unnecessary if the council had authority to revoke under the provisions of § 5714. This may be true, but unfortunately legislative expression is not always exact; it is frequently redundant and more or less tautological ; and while a strict construction might suggest this inconsistency, on the other hand the construction contended for by respondent would render indefinite and uncertain the plain provisions of § 5714, which confers the sole and exclusive powers to regulate, restrain, license or prohibit. It is not authority to regulate under certain circumstances, or to restrain under certain circumstances, but the authority is absolute and unlimited, and it is evident that the legislature intended to refer the whole subject to the city council. This was the view expressed by this court in State ex rel. Aberdeen v. Superior Court, supra, where it was said that “§ 2934 (P.C. § 5714) provides that the mayor and council of each incorporated city shall have the sole and exclusive right to regulate, restrain, license or prohibit the sale of intoxicating liquors within the corporate limits of their respective cities, towns, or villages. This means that the city authorities are given a discretion in matters of this kind, which discretion is final and conclusive, and therefore cannot be reviewed by courts.”

The other questions discussed by the respondent in this case were answered in the opinion in the case above cited. Believing that it was not the intention of-the legislature to split the jurisdiction, or divide the authority on matters of this character, but, on the. contrary, to refer the whole subject-matter to one tribunal, we are of the opinion that the superior court is without jurisdiction to act in the premises; and the writ is therefore granted as prayed for.

Hadley, C. J., Crow, Mount, and Root, JJ., concur.