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City Nat. Bank v. O'Leary (1922) the name signed. In opposition to S. D. —, 190 N. W. 1016, was an ac- this the payee testified that it was not tion on two promissory notes payable his signature, but admitted that he to the order of the maker, which were could not tell by the signature itself admittedly signed by him and de- whether he signed it or not, and could livered to a third person upon the un- only tell by looking at the contents derstanding that they were not to be of the paper; that he could not always binding upon the maker until certain tell his own signature; and that this conditions had been performed. The signature looked like his writing; and maker testified that the notes had his son testified that the signature never been indorsed by him, while looked like his father's, and he could such third person testified positively not tell whether it was or not, but that the maker indorsed his name on was sure it was not signed on the the back of the notes before they were day plaintiff claimed it was signed. delivered, and handwriting experts From this conclusion one member of testified that they believed that the the court dissented, being of the opinname on the back of the note was ion that the story of the alleged inwritten by the same

person who

dorsee was highly improbable and insigned them on the face. The court credible, and that the witness who tasdeclined to interfere with a finding of tified that he saw the payee s.g.i had the jury that the indorsements were in fact witnessed a different transacforged, saying: “The notes were in tion. evidence and the jury had an oppor- In Joffre v. Mynatt (1922) Tex. tunity to compare the defendart's sig

Civ. App. 240 S. W. 319, the court natures on the face of the notes that held that a verdict finding a signawere conceded to be genuine with the ture on a note to be genuine was supname of the defendant on the back of ported by evidence given by bank ofthe notes which were claimed to be ficers who had seen the appellant sign forgeries. The fact that one or more her name on other occasions, the teshandwriting experts testified that timony of witnesses giving opinion they believed that defendant's name, evidence against the genuineness of where it appears on the back of the the signature having been shaken on notes, was written by the same person cross-examination. that signed them on the face, was not In Ninoff v. Hazel Green State Bank conclusive or binding on the jury.” (1921) 174 Wis. 560, 183 N. W. 613,

In Security State Bank v. Bank of the appellate court deciined to interCenterville (1923) - S. D. —, 193 N. fere with the finding of a jury that a W. 670, it was held that the trial bank had failed to exercise ordinary court had not abused its discretion in care in cashing an order, accompanied setting aside a verdict in favor of the by the depositor's pass book, directing defendant and granting a new trial, the payment of the amount of the in an action upon a certificate of de- duposit to another bank, although posit in which the issue was whether three bankers of experience testified the indorsement of the payee named that they would, in the exercise of ortherein was genuine. The testimony dinary business prudence and caution, in favor of its genuineness was given

have cashed the order when accomby the cashiers of all three banks in panied by the pass book. The appelthe town near which such payee had late court made its own comparison of lived, who were well acquainted with the signature on the order and that his signature, by three cashiers of upon the bank's signature card, and banks testifying as experts, by a expressed the opinion that there was handwriting expert, and by a witness a material difference between the two who testified that he personally saw signatures.

E. S. O.

(- W. Va, —, 116 8. E. 378.)

STATE OF WEST VIRGINIA EX REL. SAM HADDAD

V.
CITY OF CHARLESTON et al.

West Virginia Supreme Court of Appeals

October 17, 1922.

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(- W. Va., 114 S. E. 378.)

License refusal for fear of violation.

1. A city council whose ordinances provide for refusal of licenses to persons shown to have previously violated conditions of licenses of the kind they apply for, and make no provision for refusal thereof to persons suspected of intent to violate them in the future, cannot refuse a license applied for, upon the bare fear or surmise that the applicant, if the license is granted, will violate one or more of its conditions.

[See note on this question beginning on page 325.] - imposition of special conditions. plied with all the requirements previ

2. A city council, in passing upon ously prescribed. applications for licenses to conduct [See 17 R. C. L. 540.] restaurants and transact other kinds reservation of power to withhold. of business not inherently harmful,

3. A city council cannot, by ordicannot prescribe conditions

re

nance, resolution, or otherwise, requirements, in the case of a particular serve to itself power and authority arapplication, in addition to those set bitrarily to refuse such licenses, or to forth in its ordinances, and, upon im

exercise discretion based upon facts

and circumstances not prescribed in position of such new or additional

any of its ordinances, such as those conditions, requirements, or regula- pertaining to the place in which ihe tions, refuse the license in the partic- applicant proposes to establish or conular case; the applicant having com

duct the business for which he desires

the license. Headnotes by POFFENBARGER, P.

[See note in 12 A.L.R. 1435.]

or

APPLICATION by relator for a writ of mandamus to compel respondents to issue a license to him to conduct a restaurant. Writ awarded.

The facts are stated in the opinion of the court.
Mr. Morgan Owen for relator.

licenses are not materially different Mr. Donald O. Blagg for respond- from those of the city of Huntington, ents.

respecting the same subject, which Poffenbarger, P., delivered the were interpreted and construed in opinion of the court:

Houvouras v. Huntington, 90 W. Va. The respondents the mayor and

245, 110 S. E. 692. No person is members of the council of the city permitted to conduct such a business of Charleston having refused the without a license. No license grantrelator a license to conduct a res- ed shall be taken to legalize any act taurant in a certain room within the which might otherwise be in violacity limits, upon his application tion of law, or to exempt from any made therefor, in due form and after penalty prescribed for such violacompliance with the usual prelim- tion. By § 93 of the ordinances liinary requirements, he has applied censees are prohibited from doing or here, in the usual way, for a writ permitting numerous things speciof mandamus to compel the issuance fied therein. Section 94 reserves the of such license.

power to the council to cancel or The ordinances of the city per- revoke licenses for violation of any taining to the subject of restaurant of the provisions of the preceding

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section. Section 95 forbids issuance places of that kind are restaurants of licenses to persons who have vio- within the meaning of the ordilated any of the provisions of $ 93, nances. The ordinances prescribed or permitted the doing of any act no requisites for restaurants; in oththerein forbidden. It also reserves er words, there are no regulations power to the council to refuse li- prescribing what shall be kept or censes to persons of immoral char- maintained in a restaurant, or how it acter, and licenses to be exercised in shall be conducted. The council improper places. In other words, cannot prescribe re

License-imthe council reserves to itself "ab- quirements for a position of spesolute discretion" to refuse licenses particular license

cial conditions. in such cases. Section 100 purports after the application has been made to vest very full and complete dis- in accordance with the existing orcretion in the council. It reads as dinances. In cases of this kind the follows: "Nothing contained in this conditions must be prescribed in adordinance shall deprive or be con- vance, so that all applicants may strued to deprive, the council of the know what they are and how to comcity of Charleston of the authority ply with them. to prohibit, by resolution, the is

Another ground is lack of good suance of a license in any particular faith in the conduct of the business case in which it shall appear to the contemplated by the license, and council to be proper to refuse to is

purpose of the applicant, under sue such license, or to refuse such

cover and color of the license, to license itself when application shall keep open a place of business on be made to the council therefor. Sunday for the sale of soft drinks, And the doing of any of the acts fruits, and the like. The relator enumerated in § 93 of this code of

shows by his application that he ordinances shail in all cases be

proposes to conduct a restaurant in deemed ground for refusing to issue

a room separate and distinct from or renew any license hereafter ap

that in which his fruit store is conplied for. If it be shown in any ducted, although in the same buildcase that the applicant is a person ing or an adjoining building. This of immoral character and unfit to ground is not well hold such license, or that such license taken. If, after the -refusal for fear is sought to be exercised in an im

grant of the license, proper place, council shall have the

the licensee shall conduct his busiright to refuse or prohibit the

ness in such a manner as to violate granting of such license."

the Sunday ordinances, he will be None of the things forbidden or guilty of an offense and become liaprescribed by § 93 are charged ble to punishment therefor. Moreagainst the applicant. He had a full over, on conviction of such an ofhearing before the council, and his fense, his license could no doubt be application was denied upon grounds revoked under clause "d" of $ 93, other than those mentioned in $$ 93 saying no person having a license and 94 as cause for revocation and shall permit "the violation of any refusal of licenses. One of the penal law of the state or city by the grounds upon which his application holder of such license or his agent was refused is that he does not pro- or employees therein." pose to establish, operate, and main port of the return is not that the tain such a restaurant as, in the applicant proposes to carry on an ilopinion of the council, ought to be legitimate business in the place in authorized. In the verified return which he intends to conduct his resit is charged that the relator intends taurant, but that there is danger or to keep what is known as a “hot dog probability of his doing so. That is stand” for the sale of sausages, all covered and provided for in the sandwiches, ice cream, and the like. ordinance. Applicants may have liIt is not denied by the return that censes if they are not shown to have

of violation.

The pur

hold.

- W. Va. —, 114 S. E. 378.) been guilty of some offense or to be in the opinion of the council to jusof immoral character, subject to tify the refusal

-reservation of power in the council to revoke their thereof, it suffices to power to withlicenses for violations of law and for direct attention to doing any of the things forbidden by what is held on that subject in $93. It is to be observed that $ 94 Houvouras v. Huntington, to which provides for revocation on such reference has been made. In all ingrounds, and $ 95, for the refusal

stances in which the ordinances do of licenses to those who are shown not prescribe the conditions upon to have been guilty of the forbid- which licenses of the kind involved den conduct, or to be of immoral

here are to be had, so that all may character, or unfit to hold such li

know what those conditions are and censes. Not a word in the ordi

may stand upon an equal footing as nances purports to reserve author

to the right to obtain such licenses, ity in the council to refuse a license on the bare fear that the applicant granted. The council cannot, by or

the applications therefore must be will violate its conditions.

Of the provisions in the ordi- dinance, resolution, or otherwise, renances purporting to reserve power

serve to itself power to grant or rein the council to refuse licenses for

fuse licenses for the conduct of an the conduct of restaurants in im- inherently harmless business, acproper places, and the provisions cording to whim or caprice, or in purporting to reserve arbitrary dis- any arbitrary manner. cretion and power to refuse licenses

For the reasons stated, a perempin any case, upon such circum- tory writ of mandamus will be stances as may be deemed sufficient awarded.

ANNOTATION.

Refusal of license because of suspicion of intended violation of its conditions.

on

But two decisions other than the reported case (STATE EX REL. HADDAD v. CHARLESTON, ante, 323) have been discovered in which the court has passed directly the question whether a license to conduct a business may be refused because of a belief or suspicion that a violation of the conditions of the license is intended. These decisions are in accord to the effect that a belief or a suspicion that there is an intent on the part of an applicant for a license to violate the conditions of the license will not warrant a refusal thereof.

In the case of People ex rel. Belden Club v. Hilliard (1898) 28 App. Div. 140, 50 N. Y. Supp. 909, it appeared that the relator, a club, by its president, applied for a liquor tax certificate. On the rejection of the relator's application for a certificate, it applied for a writ of andamus, and in answer thereto the special deputy excise commissioner set up by affidavit that the premises for

which a certificate was requested had been kept by another organization, the “Gramercy Club," and were in charge of one Corey, who used them as a resort for lewd and disorderly persons; that, the certificate of the Gramercy Club having been revoked by the supreme court, Corey planned to use the Belden Club in the same manner as the Gramercy Club had been used; and that he believed that the same disreputable business was intended to be carried on under the license requested by the Belden Club, against the granting of which the chief of police had protested. The grant of a peremptory mandamus was affirmed on appeal on the ground that the statute then in force gave the commissioner no discretion to refuse a certificate on an application in due form.

In the reported case (STATE EX REL. HADDAD V. CHARLESTON, ante, 323), wherein a similar result is reached, it appeared that the relator had been re

a

fused a license to conduct a restau- of the building where the same are rant within the city of Charleston sold, and in room fronting the on the ground, inter alia, that under street or highway upon which such cover of the license requested, it was building is situated, and said room the applicant's intent to open his place shall be so arranged, either with of business on Sunday for the sale of window or glass door, as that the soft drinks, fruit, etc. This ground whole of said room may be in view was not, in the opinion of the court, from the street or highway, and no well taken; and it is pointed out that, blinds, screens, or obstructions to the in case of any violation of the Sunday view shall be arranged, erected, or ordinances, the licensee would be placed so as to prevent the entire view guilty of an offense, and that, on con- of said room from the street or highviction therefor, he might have his way upon which the same is situated license revoked under the section of during such days and hours when the the license ordinances which pro- sales of such liquors are prohibited vides that no licensee shall permit by law.” The court said: “It must “the violation of any penal law of be conceded that at least a part of the state or city by the holder of such the things forbidden by the section, license or his agent or employees for instance, that 'no blinds, screens, therein.” And, says the court, while or obstructions to the view of said a license might be refused to one room shall be arranged, erected, or guilty of conduct forbidden by the placed so as to prevent the entire view license ordinances, or to one of im- from the street,' etc., relate to acts moral character, the mere fact that it to be done or suffered after the isis feared that the conditions thereof sue of the license. And even though will be violated will not sustain a the license issue, and such obstrucrefusal of such license.

tions to the view are erected, and no In Gates v. Haw (1897) 150 Ind. sale takes place in such room under 370, 50 N. E. 299, the appellants, such license, there is no violation of remonstrants against the granting of the section, it has been held. Hipes a liquor license, protested that the v. State (1897) 18 Ind. App. 426, 48 situation and condition of the room in N. E. 12. If, therefore, the things which it was intended to sell liquor forbidden in the section relate to acts were such that it would render the and things that may transpire after sale unlawful under the provisions of the grant of the license, it would be a statute reading as follows: “Any unreasonable to suppose that a trial room where intoxicating liquors are of such questions was intended to sold by virtue of a license issued un- precede the granting of the license. der the law of the state of Indiana, It is true, some of the things forfor the sale of spirituous, vinous, malt, bidden in the section may not relate or other intoxicating liquors in less to future acts and occurrences, quantities than a quart at a time, but the provisions of the section make with permission to drink the same no distinction between existing matupon the premises, shall be situated ters and those which occur in the upon the ground floor or basement future.”

R. S.

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