Opinion
Civ. No. 3976.
July 20, 1922.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge. Reversed.
The facts are stated in the opinion of the court.
H. J. Stafford, Edward A. Cunha and John T. Williams for Appellant.
George Lull and Chas. S. Peery for Respondents.
Plaintiff filed its petition for a writ of mandate to require the defendant Bryant, as tax collector, to issue a license, and the other defendants, as members of the board of police commissioners, to issue a permit to continue the conduct of a dancing pavilion in the premises known as the "Winter Garden" and located on the corner of Pierce and Sutter Streets, San Francisco. A general demurrer to the petition was sustained without leave to amend and judgment followed denying the application and dismissing the proceeding.
The petition alleged that the plaintiff was in possession of the premises under a lease running until August 1, 1926; that on the first day of June, 1918, acting under the ordinances enacted by the board of supervisors, the police commissioners granted to petitioner a permit to conduct a dancing pavilion in the premises, and that this permit had been renewed without protest on each succeeding quarter thereafter until January 1, 1921; that the commissioners refused to renew the permit for the quarter commencing on that day, giving as a reason therefor that the premises were located in a residence district; that in truth and fact the premises were not located in a residence district; that the street on which the premises were located was a business street; that the locality had not changed since the original permit had been granted except that, since said time, it had assumed more of a business character from day to day; that in fact there was only one residence in the block in which said premises were located, and the residents thereof consented to the maintenance of said business; that the declaration that the premises were located in a residence district "was a sham and a pretense, and not based upon the fact or the truth, all of which is and was well known to the members of the said board, and that the said board and the members thereof, well knew that the said district surrounding the plaintiff's place of business, and the street upon which it faces were, and are not a residence district, or a residence street, and in this behalf plaintiff avers that said declaration was made for the purpose of affording the said board and its members an excuse to arbitrarily, maliciously, oppressively, unreasonably and unlawfully destroy plaintiff's business and impair plaintiff's contract of lease, and to cause plaintiff great and irreparable injury." It was further alleged that the refusal to renew said permit was in deference to a protest filed with the commissioners based upon a popular hue and cry against the "Winter Garden" as a place where "Howard Street Gangsters" met their victims, and that though the police commissioners, after a hearing, affirmatively found that those grounds of protest were untrue, they, nevertheless, refused to issue the permit unless the protestants would formally withdraw their protest; that when this was refused, the police commissioners devised the pretense of denying said permit on the ground that said premises were in a residential district; that this action was arbitrary, capricious, and unreasonable; that it discriminated against plaintiff and in favor of other proprietors of similar pavilions located in districts which are of a far more residential character. Allegations followed relating to the character of the dancing conducted in the premises and the general conduct of the place. This, it was alleged, was without criticism. It was also alleged that plaintiff had expended large sums of money in fitting up its place of business for a dancing pavilion, and that it would suffer great injury if it was denied the right to continue it.
[1] From the allegations of the petition, it appears that, without any legal cause, but arbitrarily, oppressively, and capriciously, the board suddenly terminated plaintiff's right to conduct a lawful and profitable business upon premises which were leased for that purpose upon the faith of the permit theretofore granted.
It is not necessary to discuss the many constitutional questions argued by the parties. The right of the city to regulate a business of this nature may be conceded. The point of the case is that the petition alleges that the appellant was not subjected to regulation, but that it was arbitrarily and capriciously forced out of business while others in like situation and condition were permitted by the same authority to continue.
It is not necessary to cite authority to the point that a lawful business properly conducted and not injurious to persons, property, or public welfare cannot be confiscated by the arbitrary and capricious dictation of any official body. The complaint alleges that this was what was done in this case, and, of course, the demurrer admits the truth of these allegations.
Judgment reversed.
Sturtevant, J., and Langdon, P. J., concurred.