J. D. MARTIN v. TOWN OF HOLLY SPRINGS, a Municipal Corporation.
(Filed 4 May, 1949.)
Appeal and Error § 31e—
Where, pending defendant’s appeal from the denial of mandamus to compel a municipality to issue him an “off premises” license for beer and wine at his grocery store situate within 600 feet of a church, the General Assembly has passed an act proscribing the issuance of license for the sale of beer or wine within one and one-half miles of said church, the question sought to be presented has become academic, and the appeal will be dismissed.
*389Appeal by plaintiff, J. D. Martin, from Harris, J., at tbe November Term, 1948, of Wake.
On 22 September, 1948, tbe plaintiff filed a duly verified application, wbicb fulfilled all of tbe requirements of G.S. 18-75, with tbe governing body of tbe defendant, tbe Town of Holly Springs, a municipality in Wake County, for an “off-premises” license authorizing bim to sell beer and wine at retail at bis grocery store in Holly Springs under tbe provisions of tbe Beverage Control Act of 1939, and tendered to sucb governing body tbe sum of $15.00 in payment of tbe prescribed municipal license tax. G.S. 18-74. Sucb grocery store is located witbin six hundred feet of tbe Holly Springs Baptist Church in Holly Springs Township, Wake County. Tbe plaintiff made it truly to appear to tbe governing body of tbe defendant by bis application and other proof that be is not less than twenty-one years of age; that he has been a bona fide citizen and resident of North Carolina and tbe United States ever since bis birth; that be has never been convicted of a felony or other crime involving moral turpitude; that be bad not been adjudged guilty of violating tbe prohibition laws, either State or Federal, within tbe two years prior to tbe filing of bis application; and that be bad not completed a sentence for violation of tbe prohibition laws witbin two years prior to tbe filing of bis application. On 24 September, 1948, tbe governing body of tbe defendant considered tbe plaintiff’s application and adjudged it to be “regular and in order,” but refused to grant bim tbe license requested “due to circumstances beyond our control.” Tbe plaintiff thereupon brought this action against tbe defendant, tendering tbe amount of tbe prescribed municipal license tax and praying a mandamus to compel tbe issuance of an “off-premises” license authorizing plaintiff to sell beer and wine at retail at his grocery store in Holly Springs.
Upon tbe complaint, wbicb averred tbe matters set out above, tbe court issued an order requiring tbe defendant to show cause why a writ of mandamus should not issue in accordance with plaintiff’s prayer. Tbe defendant did not deny tbe allegations of tbe complaint by answer or otherwise, but made a return to tbe order to show cause asserting that tbe plaintiff is “not a man of good character” and ought not to be granted tbe license sought on account of tbe things appearing in tbe ensuing paragraph. ' ' • .' • <
Prior to 1 May, 1929, tbe plaintiff was convicted of minor assaults twice, of petty traffic violations five times, and of unlawfully possessing intoxicating liquors twice, and was compelled to pay fines totaling $70.00 and to serve six months “on tbe roads” as punishment therefor. On one occasion be was bound over to tbe Superior Court of Wake County on tbe charge of larceny and receiving, but tbe action was never brought to trial *390and terminated in a nolle prosequi witb leave in April, 1929. Since that time, the plaintiff has been law-abiding.
When the case at bar was heard, the court found facts conforming to the allegations of the complaint and adjudged that the plaintiff had not been convicted of any felony or other crime involving moral turpiture, but concluded that he “is a person of bad character and . . . not entitled to said license” because of his court record antedating 1 May, 1929. Assigning this conclusion as the basis for its action, the court declined to issue a mandamus and dismissed the action, and the plaintiff appealed, assigning errors.
Stanley L. Seligson and J. L. Emanuel for plaintiff, appellant.
N. F. Ransdell and Robert A. Cotton for defendant, appellee.
EeviN, J.
Since this case was argued in this Court, the General Assembly of 1949 has duly enacted Senate Bill No. 142 making it unlawful for any person to sell beer' or wine “within one and a half miles of the Holly Springs Baptist Church in Holly Springs Township in Wake County,” and prohibiting the governing body of the Town of Holly Springs and “any other agency within the State of North Carolina” from issuing any license to any person for the sale of beer or wine within such territory. The plaintiff applied for the “off-premises” license for a particular place, to wit, his grocery store in the Town of Holly Springs, as required by statute. G.S. 18-75. Since this place is situated “within one and a half miles of the Holly Springs Baptist Church in Holly Springs Township in Wake County,” the question of whether the governing body of the Town of Holly Springs wrongfully refused to issue to plaintiff the license for which he applied has been rendered academic by the action of the General Assembly of 1949, and any decision thereof by this Court would be a useless performance. Wilson v. Comrs. of Guilford, 193 N.C. 386, 137 S.E. 151. In consequence, the appeal is
Dismissed.