
    *Sights v. Yarnalls.
    April Term, 1855,
    Richmond.
    i. Licenses — Ordinaries — Right — When Perfected — Case at Bar. — By an ordinance of the city of wheeling, a license to keep a house of entertainment is to expire and be of no further effect on the 1st day of May next succeeding the date thereof. The council having in April granted such a license for the succeeding year, such grant did not vest in the party to whom it was granted, any absolute or vested right to such license ; but the right did not become perfect until the actual emanation of the license, or until the 1st day of May following.
    а. Same — Rescission of Order Granting — Case at Bar.— By the same ordinance the council has authority at any time to annul a license actually issued under its order. A fortiori it may rescind an order granting a license before the 1st of May, which has not issued.
    3. Same — Same—Mandamus.—A party to whom such license was granted in April cannot properly apply for a mandamus to compel the proper officer to issue it, before the 1st of May ; and therefore the pendency of such a mandamus cannot affect the right of the council to rescind the order granting the license, before that time.
    4. Same — Payment of Tax Condition Precedent to Emanation. — The council being authorized by the charter of the city to assess a tax on licenses to keep ordinaries, in addition to the state tax, it was competent for the council to make the payment of the tax a condition precedent to the emanation of the license.
    5. Same — Same—Case'at Bar. — The council having by an ordinance assessed a tax on a license to keep an ordinary, and having granted a license “under existing rates of taxation,” such grant must be taken to refer to not only the state tax, but the tax Imposed by the council; and to require the payment of the latter as the condition of the right to call for the license.
    б. Same — Same—Tax Illegal — Effect.—in such case, though the tax was unequal, oppressive and illegal, yet as its payment was a condition precedent to the emanation of the license, without the performance of the condition nothing passed under the grant: And the condition cannot be separated from the grant and disregarded, so as to render the grant absolute and unconditional: The whole must be taken together, and accepted or rejected.
    7. Same — Same—Same—nandamus.*—By the charter of the city the council has power to refuse a license to keep an ordinary ; and if the tax laid is unjust, excessive and '-"illegal, it is in effect the exercise of this power, and for all legal purposes should be so regarded. And the exercise of this power cannot be controlled by the Circuit court by mandamus or otherwise : But the charter authorizing a party to whom a license is refused, to apply to the County court of Ohio for it, his only remedy is to apply to that court.
    8. Same — Same—Right to License without Paying Tax. —The order granting the license having been made in April, if the tax then imposed was illegal, or if no tax had been assessed upon it at the time, it was competent for the council, at any time before the 1st of May, to modify its grant by requiring the payment of a legal tax in lieu of that which was illegal, or to supply the omission to lay a tax upon ordinaries ; And without the payment of this tax at least, the party to whom the license had been granted, had no right to demand it.
    9. Same — flandamus Nisi — Return of Officer.* — upon a mandamus nisi sued out by the party to whom the license was granted by the council, against the officer whose duty it is to issue the license, he may in his return set up the ordinance passed since the order granting the license, imposing a tax upon it.
    10. Same — Same—Issued without Previous Rule.*,— In a case of this kind a mandamus nisi may be issued in the first instance, without a previous rule upon the party to appear and show cause against it.
    On the 19th of April 1854, %. S. & J. J. Yarnall presented a petition to the judge of the Circuit court of Ohio county for a mandamus to George W. Sights, clerk of the city of Wheeling, to compel him to issue to them a license to keep an ordinary at the “Sprigg house” in said city. .A mandamus nisi was issued, returnable to the first of May following; at which time Sights made his return, setting out the various statutes of the state and ordinances of the city bearing upon the question; and the action of the city council in relation to-the license to the petitioners to keep the said ordinary. The case, as it appears from the petition and the return to the mandamus, is as follows:
    The act to incorporate the city of Wheeling, passed the 11th of March 1836, vests in the council the usual powers to make ordinances for the regulation of their proceedings, and for the transaction of their business, and also for the appointment of such officers as they may deem necessary for the execution of the powers ^vested in the city or council. And by another act passed March 4th, 1854, it was enacted that the council “shall have exclusive authority within said city to grant or refuse license to the keepers of ordinaries, inns and taverns, houses of public or private entertainment, boardinghouses, public eating-houses, coffee-houses, places at which spirituous liquors shall be sold, and places of public amusement.”
    “They shall further have authority to regulate the manner in which such houses or places shall be kept and to levy and collect taxes thereon, in addition to any tax which is or shall be payable on the same to the state. But if the council shall upon application refuse to grant any such license to keep an ordinary, a license to keep the same may be obtained from the County court of Ohio county, upon application thereto, as in other cases of ordinaries in said county.” It is the last clause of the act which was added in March 1854.
    By an ordinance of the council passed May 2d, 1840, it is ordained, “If the council shall order license to be granted upon any application, the applicant shall pay to the treasurer of the city the tax, if any, imposed on such license by the ordinances of the city, and to the officers authorized by law to receive the same, the tax, if any, due thereon to the state; and shall take proper receipts therefor, and shall deliver the same to the clerk of the city. And further, if bond be necessary, shall deliver to the clerk the proper bond executed by himself and the security or securities named in his application or required by the council, and shall pay to the clerk the proper fee, whereupon the clerk shall issue license according to the order of council.”
    By another section of this ordinance it is required that before any license to keep an ordinary shall be issued by the clerk of the city, the applicant shall enter into a bond of a prescribed form, with the security *named in his application or prescribed by the council. And by another section of said ordinance, all licenses for ordinaries and houses of private entertainment shall expire and be of no effect on the first Monday of May next succeeding the date thereof; but it shall be lawful for the council, at any time, to annul any license so issued, and shall return a ratable proportion of the tax.
    By an ordinance passed on the 14th of March 1854, supplementary to one passed on the 14th of February preceding, assessing taxes for the city of Wheeling for the year 1854, it was ordained:
    1st. That there shall be paid to the treasurer of the city, on every license to keep an ordinary within said city, the following tax, viz:
    For a license for an ordinary to be kept at the house called the “Sprigg house,” the tax shall be four thousand five hundred dollars per annum.
    For a license for an ordinary to be kept at the house called the “McClure house,” the tax shall be three thousand dollars per annum.
    For a license for an ordinary to be kept at any other house within said city, the tax shall be two thousand dollars per annum. There were other provisions which need not be stated.
    The council having been advised that there was doubt whether the foregoing ordinance of the 14th of March was constitutional and valid, on the 28th of April passed an ordinance to amend it. By this ordinance a tax according to the rental was laid upon ordinaries: and for the highest class it was provided, that if the annual rental value exceeded one thousand dollars, there should be a tax of three hundred and eighty dollars on the first one thousand dollars, and twenty-five per cent, on the excess; provided the tax on every such license should not exceed one thousand and five dollars.
    ^On the 11th of April 1854, %. S. & J. J. Yarnall applied in writing to the council for a license to keep an ordinary for one year from the first Monday of the next May at the place in the city of Wheeling called the “ Sprigg house: ” And they named their securities in their petition. And on the same day the council made an order granting them the license as asked for, under existing rates of taxation: And it was certified that the petitioners were persons of good moral character, and not addicted to drunkenness or gaming.
    By one of the ordinances of the city it was provided that the journal of the proceedings of the council shall be read and approved by the council, shall be signed by the presiding officer and countersigned by the clerk, and shall then only have their proper force and effect. And the proceedings of the meeting at which the license was granted to the Yarnalls was not so approved and signed until the 24th of April; at which time it was among other things ordered, that the order made at the last meeting of the council granting license to %. S. & J. J. Yarnall for an ordinary to be kept at the “Sprigg house,” be and the same is repealed. Previous to this meeting of the council the Yarnalls had applied to the judge for the mandamus, and a mandamus nisi had been directed.
    It appears that the petitioners had previously kept an ordinary at the “Sprigg house;” that they had executed the bond required by the ordinance in the prescribed form, with the securities mentioned in their petition; that they had paid the tax due to the state, and delivered both the receipt and the bond to the clerk of the city. It also appears that previous to the ordinance of March 14th, 1854, the tax upon ordinaries was ratable according to the rental, and that the highest tax upon any ordinary had been two hundred and fifty-eight dollars; that on the “Sprigg house” for the year 1853 was about one hundred and seventy *dollars, when as the petitioners insisted the rental value of the house was as great as it was in 1854. They insisted that the ordinance of March 14th, 1854, was unconstitutional and void, and that there was no tax assessed by the council on ordinaries.
    Sights, the clerk of the city, objected to the issue of a mandamus, on the grounds:
    1st. That the grant of the license having been made expressly subject to the payment of the tax assessed by the ordinance of March 14th, 1854, the petitioners were only-entitled to the license upon the terms upon which it was given. And if the condition was invalid, the grant- itself was also invalid.
    2d. That the order granting the license was of no effect until the proceedings were approved and signed. And at the meeting at which that was done, - the order was rescinded.
    3d. That the license asked for was for the year commencing the first Monday in May 1854, and could not be issued before that time. There were other objections taken, which need not be stated.
    Upon the hearing a peremptory mandamus was directed to issue to Sights, the clerk of the city of Wheeling, commanding him as such clerk forthwith to make, issue and deliver to Z. S. & J. J. Yarnall a license to keep an ordinary at the place called the “Sprigg house,” for the license year extending from the first Monday in May 1854 to the first Monday in May 1855. From this order Sights applied to this court for a supersedeas, which was allowed.
    Fry, for the appellant.
    Russell, for the appellees.
    
      
      On the subí ect of mandamus, see cases cited in foot-note to Morris, Ex parte, 11 Gratt. 292.
    
    
      
      Mandamus. — See principal case cited in Fisher v. Mayor of Charleston, 17 W. Va. 63], 638; Fisher v. City of Charleston, 17 W. Va. 610.
    
   UFF, J.,

delivered the opinion of the court:

The court is of opinion, that as by the ordinances of the city of Wheeling, the annual license granted by *the council for ordinaries and houses of entertainment was to expire and be of no further effect on the first Monday of Maj' succeeding the date thereof, it was manifestly contemplated and intended that such license should issue and bear date on or after the first day of May in any year, and not before: and that the act of the council in entertaining the application of the defendants in error and passing the order of the 11th of April 1854, for granting them a license for an ordinary under the existing rates of taxation, must be regarded as voluntary and for convenience only, and not compulsory or binding beyond recall upon the said council; and that the said order did not confer upon the defendants in error any perfect, absolute or vested right to such license, but a right which was incomplete and inchoate only; and which would not become perfect and consummate until the actual emanation of the license, or until the time at which it might lawfully be issued and take effect, to wit, the 1st day of May 1854.

And the court is further of opinion, that as by the same sectipn of said ordinance, power was expressly reserved to the council at any time to annul a license which had actually issued under its order, a fortiori it would possess the power to rescind an order for granting such license made prior to the 1st of May in any year, at any time before the actual emanation of the license, or before the 1st day of May next after the date of such order.

.The court is therefore of opinion, that it was competent for the council prior to the 1st of May 1854 to repeal and rescind its order of the 11th of April 1854 granting a license for the year following to the defendants in error: that its right so to repeal and rescind the same was to be taken and considered as an incident to and constituting a part of said grant, and that its order to that effect, passed on the 24th of April 1854, was a valid and effectual repeal of the said order of the *llth of April 1854, and put an end to all right on the part of the defendants in error thereafter to demand that the said license should be issued to them.

And the court is further of opinion, that the right of the council to rescind the ordér of the 11th of April 1854 granting the license, was not affected or impaired by the pendency of the application to the judge of the Circuit court of Ohio county for a mandamus to compel the issuing of the license; because the right to the same under the order of the council of the 11th of April 1854 being imperfect and inchoate only, the application for the mandamus could not regularly be entertained until the time at which the license might be issued and take effect, and could not therefore, until such time, have the effect to destroy or abridge the control which the council would otherwise have over the subject, or the right to modify, amend or rescind the order as to it might seem just and proper.

And the court is further of opinion, that the council being authorized by the charter of the city of Wheeling to impose a tax upon ordinaries, &c., in addition to any state tax that might be levied upon the same, was fully authorized to make the payment of such tax a condition precedent to the right to demand the emanation of the license: and that by the ordinance of the 2d of Majr 1840 the said council have required that payment of the tax imposed by them should be made before the applicant would be entitled to demand that the license should be issued.

And the court is further of opinion, that the council having by its ordinance-of the 14th of March 1854 levied the sum of four thousand five hundred dollars as the tax to be paid for a license for an ordinary to be kept at the house of the defendants in error, and having by its order of the 11th of April 1854 granted such license to the defendants “under existing rates of taxation,” such grant must be taken to have reference *not only to the state tax imposed by law upon licenses to ordinaries, but also to such tax so levied by the council as aforesaid; and to have required payment of the latter also as the condition of the right to call for the emanation of the license.

And the court is further of opinion, that whether the tax imposed by the supplementary ordinance of the 14th of March 1854 was just, fair and reasonable, or was unequal, excessive and illegal, is a question not material to be determined in this cause; because whether the one or the other, payment of the same was required to be made by way of condition precedent to the emanation of the license; and without the performance of such condition, nothing- passed under the grant of the said license; nor could such condition be separated from the grant and disregarded, so as to render the grant absolute and unconditional: but the whole must be taken together and must be accepted or rejected in whole as it stands.

And the court is further of opinion, that if the said tax so levied by the said ordinance of the 14th of March Í8S4, was unjust, excessive and illegal, the grant of the license, on payment of such unjust, excessive and illegal tax, was in effect the exercise of the power reserved to the council by the thirty-fifth section of the charter of the 11th March 1836, to refuse the license, and for all legal purposes should be so regarded and treated; but that the exercise of the discretion conferred by said section in refusing to grant the license could not be the subject of review in the Circuit court upon mandamus or otherwise; and that to obtain such license the remedy remaining to the applicants was that given by the act of March the 4th, 1854, by a resort to the County court of Ohio county, as prescribed by said act.

And the court is further of opinion, that as the council had at least until the 1st of May 1854, full ^control over the order of the 11th of April 1854, and the right wholly to revoke and rescind the sanie, so if the tax 'imposed by the ordinance of the 14th of March 1854 were unjust, excessive and illegal, or if in point of fact no tax had been imposed on ordinaries by any ordinance of the said council, it was competent to the council to modify its grant of the 11th of April 1854, at any time before the period above indicated, by requiring payment of a valid and legal tax upon the same in lieu of that imposed by the act of the 14th of March 1854, or to supply the omission to lay a tax upon ordinaries ; and that consequently the ordinance of the 28th of April 1854 amending the previous ordinances assessing taxes for the city of Wheeling, and imposing taxes on ordinaries, was valid and operative upon all licenses to be issued on or after the 1st day of May, and applied equally to that which had been granted to the defendants by the order made before its enactment; and that without payment of the tax imposed by this ordinance at least, the said defendants, if otherwise entitled, could not demand that the license should be issued and delivered to them.

And the court is further of opinion, that the said ordinance of the 28th of April 1854 and the ground of defense which it suggests is sufficiently presented by the return made by the plaintiff in error upon the writ of mandamus nisi, and that the same properly might and should have been looked to and considered by the Circuit court in passing upon the question of a peremptory mandamus.

And the court is further of opinion, that from the materials afforded by the record in this case, it cannot undertake to say that the tax imposed by the said ordinance of the 28th of April 1854 was unjust, unequal and exorbitant, nor that the exercise of the discretion vested in the said council as to the amount of the tax to be levied on ordinaries, was undue, improper or oppressive.

*And the court is further of opinion, that there was no irregularity in awarding the mandamus nisi in the first instance without any previous rule upon the party to appear and show cause against the same.

Wherefore, and without deciding any other question raised in the cause than those upon which the opinion of the court is above declared, the court is of opinion, that the return made upon the said writ of mandamus nisi is sufficient; that the judgment of the said Circuit court is erroneous, and should be reversed, with costs to the plaintiff in error; that the motion for the peremptory mandamus should be overruled, and the mandamus nisi discharged; and that the plaintiff in error should recover his costs in the Circuit court expended.  