
    LOUGHRAN v. CITY OF HICKORY.
    (Filed December 3, 1901.)
    1. ELECTIONS — Towns and Cities — Acts 1901, Ch. 760, Sec 19 — Acts (Private), 1901, Oh. 255.
    
    Under Acts 1901,’Ch. 750, Sec. 19, and Acts (Private), 1901, Ch. 255, the election for municipal officers and local option in the city of Hickory was properly held on the first Tuesday after the first Monday in May, 1901.
    2. SERVICE OF PROCESS — Summons—Parties—Acts 1889, Ch. 238.
    
    The corporation of Hickory having been chartered under the name of “The City of Hickory,” a summons is properly directed against the city of Hickory and served upon the Mayor and the Secretary of the Board of Aldermen.
    3. MANDAMUS — Spirituous Liquors■ — Licenses.
    In an action for mandamus to compel the aldermen of a city to issue license to sell liquor, the court should direct the aider-men to pass upofi the application and not order a peremptory mandamus directing the aldermen to issue license.
    ActioN by Erank Loughran against the City of Hickory and the Mayor and the Aldermen, heard by Judge W. B. Council, at Chambers, at Newton, on the 8th day of July, 1901. Erom a judgment for the plaintiff, the defendants appealed.
    
      E. B. Cline, and 8. J. Ervin, for the plaintiff.
    
      Self & Whitaner, and T. M. Hufham, for the defendants.
   McottgomeRY, J.

Tbe Board of Aldermen, of Hickory, under Chapter 238, sec. 46, Private Laws of 1889, had exclusive control of the sale of spirituous liquors within the-limits of the city, including the power to refuse to' allow it to be sold. The General Assembly, at its session of 1901 (Private Acts, Chap. 255), struck out section 46, of Chapter 238, of the Private Acts of 1889, and enacted in lieu thereof a section which 'provided that the question of whether license to sell liquor within the city limits should be granted or not should be decided by a direct vote of the qualified voters of the city, and that the Board of Aldermen, at each annual election for Mayor and Aldermen, should provide a separate box in which the voters might cast their ballots, “License” or “No License,” as they might prefer; and if a majority should be in favor o-f license, then the Board of Aldermen should issue license to applicants who should comply with the requirements of the general law on that subject, but if a majority should be against license, then the Board should not issue any license during the following municipal year. At the same session of the General Assembly (Chapter 750, of the Public Laws), that body undertook to malee uniform, as far as it- could be done, the rules and regulations concerning elections in towns and cities and special elections in counties and townships, and declared that those rules and regulations should be complied with, except as otherwise provided in the charters of cities or towns (section 1). In section 19 of the last-mentioned chapter, however, all town and city elections, except those in Fayetteville, thereafter to< be held, were required to be held on Tuesday after the first Monday in May, 1901, and to be held bi-ennially, and any provision to the contrary in any charter .in any city or town were expressly repealed. So, by section 17 of Chapter 750, of the Laws of 1901, all town and city elections to be held after the ratification of the act were to be held on Tuesday after the first Monday in May, and they were to be bi-ennially field; and so tfie city of Hickory understood tfie act (Ofiapter 750), and in accordance tfierewitfi, at tfie bi-ennial election for Mayor and Board of Aldermen, field on Tuesday after tfie first Monday in May, 1901 (instead of tfie first Monday in May and annually, as provided in its cfiarter), a separate box was provided under tfie private act of 1901, to decide tfie question of wfietfier liquor license sfionld or sfiould not be granted. Tfie city polled its full vote, a usual occurrence on sucfi issues in cities big and little, according to statement of counsel, 239 votes for license and 219 against. Tfie plaintiff, after tfie election, made application to tfie Board of Aldermen for license to sell spirituous liquors át fiis fiotel in tfie city for twelve months, from 1st of July, 1901, furnishing at same time certificates by way of affidavits both that tfie applicant was a proper person to sell spirituous, vinuous and malt liquors, and that the building in which fie proposed to sell was a suitable place for tfie purpose. 'The Board rejected tfie application upon tfie ground that tfie election upon which tfie application was based was invalid as to license. Tfie plaintiff, therefore; commenced this action in mandamus, and prayed for judgment, first, that an order issue tó tfie defendant and Board of Alderman commanding them to hear tfie application of the plaintiff and to grant license to him to sell spirituous liquors within tfie city of Hickory; second, for all such other and further relief as fie may be entitled to herein; and, third, for cost of tfie action.

Upon the matter having been heard by fiis Honor, a judgment was rendered that tfie election was a valid one, and that tfie plaintiff was entitled to tfie license applied for, and that tfie defendants issue to him tfie license upon the payment of tfie license tax. Tfie judgment recited that tfie application was rejected by tfie Board alone on tfie ground of tfie invalidity of tfie election, and it seems tfie order was issued peremptorily because tbe defendant made no contention over tbe matter of tbe fitness of tbe applicant fir tbe suitableness of tbe place, and tbat no such contention was then made (at tbe time of the bearing).

As we have shown,i tbe election for Mayor and Aldermen was regularly held (Acts 1901, Chap. 750, sec. 19), and we think tbat Chapter 255 of tbe Private Laws of 1901 must be construed together with Chapter 750 of tbe laws of tbe same session, and, tbat being so, we are of tbe opinion tbat the proper construction of tbe two acts is tbat on whatever day tbe election for Mayor and Aldermen should be held, on tbat day should also be held tbe election on license or no license, and tbat tbe result should be tbe rule of action of tbe Board until tbe next bi-ennial election; tbat is, if a majority of tbe qualified voters should vote in favor of tbe sale of liquor, then license should issue to applicants in conformity to tbe general law, or if a majority should vote in favor of “no license,” then no license should issue until tbe next regular election for Mayor and Aldermen, and then only on a majority vote favoring tbe license system.

Tbe defendant’s motion to dismiss the action was properly refused. By tbe charter (amended), Chapter 238 of tbe Acts of 1889, tbe inhabitants of tbe city are incorporated under tbe name of “Tbe City of Hickory,” and not tbe Board of Aldermen, and therefore the summons was properly directed against “The City of Hickory.” It was properly served, a copy having been left with tbe Mayor and one with tbe Secretary of tbe Board of Aldermen. Tbe service on tbe members of tbe Board of Aldermen did no barm, and might have been of service in future orders of tbe Court. We are of tbe opinion, however, tbat tbe order for a peremptory mandamus was erroneous, and must be modified. We must assume tbat tbe action of tbe Board of Aldermen, in rejecting the petition on tbe ground alleged, was in good faith. We must assume that they thought the appareutly inconsistent statutes on the subject before them justified the course they pursued. We say we must assume this much. That being so, we can not say that they did not have the right to rest their refusal to grant license to the applicant on that ground • — the invalidity of the election — without considering the matters embraced in the application. The fitness of the applicant and the suitableness of the place, and other matters which might possibly arise, are matters still in the sound legal discretion of the Board of Aldermen, and they are such matters as cannot be heard originally anywhere except before them sitting as a body, and as the representatives of the city and its inhabitants. They have never passed, as a Board, upon the fitness of the applicant or the suitableness of the place at which he wishes to sell liquor, and that is a discretion which we can not take from them. If the peremptory order granted by his Honor should be sustained, then bad faith would be indirectly charged upon the defendants in their conduct in this matter, and that, as we have seen, can not be done consistently with the respect which the Courts should entertain towards the governing bodies of municipal corporations — Courts within themselves.

The order must be modified so as to require and command the defendants to, at once, take up for consideration the application of the plaintiff and pass upon the same; and if it is found that the applicant is a proper person to sell spirituous liquors, and the place at which he wishes to sell is a suitable place, then to at once issue to him the license upon the payment of the license tax. There was no error otherwise.

Modified and Affirmed.  