
    State ex rel. Park v. Beasley, Mayor, et al.
    
    
      (Nashville,
    
    December Term, 1914.)
    Opinion filed June 9, 1945.
    
      Robt. H. Polk, of Franklin, and Walker & Hooker and Ttkeb B. Habéis, III, all of Nashville, for relator.
    T. P. Henderson and Frank Gray, Jr., both of Franklin, for defendant Beasley et al., appellants here.
   Mr. Justice Gailor,

delivered the opinion of the .Court.

Relator filed her bill for mandamus to compel the- respondents, as Mayor and Aldermen of the Town of Franklin, to issue the certificate provided in section 8 of -Chapter 49 of the Public Acts of 1939, which Act regulates the retail sale of intoxicating' liquors. Upon the filing of the hill the chancellor issued an alternative writ of mandamus by which defendants were required either (1) “to sign and issue to petitioner a certificate of good moral character as is required by the express provisions of Chapter 19 of the Public Acts of 19391, and in the words of said section 8,” or (2) in the alternative to appear at the courthouse in Franklin and show cause why they have not complied. Defendants attempted to show cause by reciting the passage (pendente lite) of an ordinance by which applicants for a liquor license ■were required to make a deposit of $100' with their applications, and they recited that complying with said ordinance, relator had made the deposit and filed a second application. They alleged the effect of this to be the abandonment of the first application, which was on file when suit was instituted, and upon which the prayers of the bill were predicated. Defendants averred that they were then seriously investigating and considering relator’s second application but had not reached a decision. They further avérred that relator was estopped’ by reason of her compliance with the ordinance, after the filing of the bill, from raising the questions set out therein, since she had abandoned the original application by filing a second one.

On motion this return by the defendants was stricken. Thereupon the defendants filed a sworn answer by which they admitted that it was their duty “in proper cases” •to issue the certificate provided for in section 8 of Chapter 49 of the Public Acts of 19'39(, -and admitted that they ha!d refused to issue the certificate to the relator, but denied that such refusal was arbitrary, and averred that it was a matter of their official’discretion and denied that ■the refusal was ah abuse of such discretion. They then recited a number of reasons- — personal habits of petitioner and Rer past violations of regulations and law— upon which their exercise of discretion was based.

No denial of the charges so made was attempted by relator, whose counsel, immediately after the answer was read in court, moved to strike the answer as insufficient, and further moved for the immediate issuance of the peremptory writ of mandamus. A motion for peremptory writ of mandamus after filing of answer is an admission of all well pleaded facts and is equivalent to a demurrer to the return for not stating facts constituting a defense. State v. Killough, 156 Tenn. 131, 136, 299 S. W. 805; State v. Alexander, 115 Tenn. 156, 167, 90 S. W. 20; Harris v. State, 96 Tenn. 496, 513, 34 S. W. 1017. These motions were granted by the chancellor and from his action the defendants have appealed.

The only method of review provided by Chapter 49 of the Public Acts of 1929' is by mandamus. Provision for review is exclusively a legislative function. The legislature might have omitted entirely a provision for review and made a finding by the city authorities final and conclusive. Had such been, the language of the statute, review of arbitrary action or inaction, would then have been by certiorari under general law.

However, mandamus is provided by the act and whether it is the exclusive remedy available to relator, is not before us. She chose to pursue the method of review provided by the statute, and her rights in this litigation are limited to the relief which the limited scope of a writ of mandamus affords.

Relator sought an order from the chancellor to compel the Mayor and Aldermen of Franklin to discharge an official function which necessitated an exercise of official- discretion. Some confusion has resulted from the use of the words “certificate of good moral character” in pleadings and briefs, as if tbe good moral character of tbe applicant was tbe extent of tbe certificate. Clearly tbe certificate is not so limited. Tbe gist of it is, that tbe applicant is of good moral character and personally known to tbe mayor and aldermen, or if not personally known, that tbe officials have made investigation and from that investigation believe tbe applicant of good moral character, that in tbe opinion of tbe officials tbe applicant will refrain from violations of tbe liquor law, and that in tbe opinion of tbe officials, tbe applicant is entitled to tbe license applied for. Clearly, tbe legislative aim was for a certificate of tbe approval of tbe local authority as a condition precedent to tbe issue of tbe license by tbe state commissioner. That such certificate is based on investigation, knowledge and decision, and so is an exercise of official discretion, is too clear for argument. With regard to a similar function performed by statutory boards to license tbe sale of beer, this Court has repeatedly so held. State ex rel. Saperstein v. Bass, 177 Tenn. 609, 617, 152 S. W. (2d) 236; Wright v. State, 171 Tenn. 628, 639, 106 S. W. (2d) 866.

Here’the relator asked tbe chancellor to use tbe writ of mandamus to compel tbe mayor and aldermen to give tbe relator a favorable decision on her application to open a liquor business. This was in terms tbe prayer of tbe bill and tbe language of tbe alternative writ as it was issued thereunder, “You are therefore commended to sign and issue to petitioner a certificate of good moral character as is required by the express provisions of Chapter 49, Public Acts of 1939, and in the ivords of said section 8, Chapter 49, Acts of 1939, or appear, etc.” (Record, page 5.) (Italics ours.)

“Nothing is better settled with respect to tbe law governing mandamus than that tbe writ is never granted to control or coerce the exercise of discretionary power on the part of a board or officer. Peerless Const. Co. v. Bass, 158 Tenn. 518, 14 S. W. (2d) 732; Insurance Co. v. Craig, 106 Tenn. 621, 62 S. W. 155; Morley v. Power, 73 Tenn. 691, 5 Lea, 691.” State ex rel. Sims v. Reagan, 175 Tenn. 607, 612, 136 S. W. (2d) 521, 523.

From the sworn answer of defendants, it is evident that the defendants' had exercised their discretion in refusing relator’s, application. The relator never saw fit to deny the charge of personal inebriety or of violations of regulations and law upon which the refusal of a favorable certificate was based. But in any event, whether the grounds upon which the refusal was predicated were true or false, so long as the refusal was not an arbitrary act by the mayor and aldermen, the statute affords the relator no relief by mandamus.

We think if relator desires it, that she is entitled to a certificate by the defendants, unfavorable to her application. However, the peremptory writ as it was •entered and served on defendants, was clearly beyond .the power of the chancellor to grant.

• We. think the chancellor was in error in granting the motion: to strike. His action in that regard is reversed. The writ is’ dismissed and the case remanded for further proceedings not inconsistent with this opinion. The relator will pay the costs.  