Summary
reversing grant of mandamus where the city charter authorized the governing body to revoke liquor license permits with a discretionary procedure; "since it is discretionary whether said license be revoked and the defendants are not compelled by law to revoke said license but are authorized to do so ... they can not be compelled by mandamus to do so"
Summary of this case from Consol. Gov't of Columbus v. P&J Beverage Corp.Opinion
19914.
SUBMITTED NOVEMBER 13, 1957.
DECIDED JANUARY 10, 1958.
Mandamus. Before Judge Andrews. Fulton Superior Court. September 10, 1957.
J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Newell Edenfield, Robert S. Wiggins, Ferrin Y. Matthews, Martin McFarland, for plaintiffs in error.
Joe Salem, contra.
1. Where the duty of public officers to perform specific acts is clear and well defined and is imposed by law, and when no element of discretion is involved in performance thereof, the writ of mandamus will issue to compel their performance. Code § 64-101; Hart v. Head, 186 Ga. 823 ( 199 S.E. 125); Wrightsville Consolidated School District v. Selig Co., 195 Ga. 408 ( 24 S.E.2d 306); Harmon v. James, 200 Ga. 742 ( 38 S.E.2d 401); Rogers v. Carr, 203 Ga. 594 ( 47 S.E.2d 813); Murphy v. Withers, 204 Ga. 60 ( 48 S.E.2d 721). But mere authorization to act is insufficient unless the law requires performance of the duty. Tucker v. Wilson, 198 Ga. 474 ( 31 S.E.2d 657); Armistead v. MacNeill, 203 Ga. 204 ( 45 S.E.2d 652); Richardson v. Awtry Lowndes Co., 204 Ga. 77 ( 49 S.E.2d 24).
2. No duty of the governing body of the City of Atlanta to cancel the permit issued to sell alcoholic liquors is shown in this case, irrespective of whether or not the operation of the liquor business was in violation — as contended by the petitioner — of Code (Ann.) § 58-1029 (Ga. L. 1937-38, Ex. Sess., pp. 103, 111). While the petition alleges that the charter of the city authorizes the governing body to revoke liquor license permits issued in the corporate limits, an examination of the charter provision shows that under the police power "in their discretion" they are authorized to revoke same "whenever they deem it to the general welfare of the city to take such action." Ga. L. 1937-38, Ex. Sess., p. 929. Thus since it is discretionary whether said license be revoked and the defendants are not compelled by law to revoke said license but are authorized to do so when they deem it necessary to the general welfare of the city, they can not be compelled by mandamus to do so. Hart v. Head, 186 Ga. 823, supra; Thomas v. Ragsdale, 188 Ga. 238 ( 3 S.E.2d 567); Compare Ward v. Drennon, 201 Ga. 605 (2a) ( 40 S.E.2d 549); Murphy v. Withers, 204 Ga. 60, supra. The petition seeks to compel the cancellation of the license rather than to require the city officials to perform a discretionary duty, and it was subject to demurrer. Thus the court erred in overruling the general demurrer and in granting the mandamus absolute.
Judgment reversed. All the Justices concur.