In a case certified up to this court under the provisions of G.
The city council is vested by its charter (Sp. Laws 1891, c. 4, subc. 4) with the power to regulate by ordinance persons dealing in intoxicating liquors within the city. An ordinance passed in pursuance of this authority prohibited a sale within the city un- . less the vendor should have first obtained a license to sell from the city council as “hereinafter provided.” By section 3 a proposed vendor is to first make application in writing to the council, specifying the place, house, or room in which he proposes to conduct his business. Notice by publication is then given of the time when the petition will be heard, and, if allowed, “a license signed by the mayor of said city and countersigned by the clerk of said city, shall be issued to said applicant, authorizing him or them to sell or deal in spirituous, vinous, fermented, mixed or intoxicating liquors at that one certain place, house or room in said city designated in said application, in the manner therein prescribed for the period of one year, which said license shall not be assignable or transferable, and shall be posted up in the room where such business is done, and shall distinctly state the amount paid therefor.” During the continuance of the license the licensee must carry on his business in the house, place, or room specified-in his application. It is also provided that the license shall not be granted or issued until the license fee has been paid, and the bond approved by the council.
Clearly, the council had power to vote or grant the license, but the mayor and the clerk were to issue it; the former to sign, and the latter, to countersign. Although the application has been received, the fee paid, the bond approved, and the license voted by the council, no person has obtained a license to sell until there has been issued to him a written or printed instrument in due form, and duly executed by the mayor and clerk. It is this instrument,
This view accords with State v. Bach, 36 Minn. 234, 30 N. W. 764, in which we find the statement that it was not enough for the petitioner to execute a bond and to offer to pay the license fee, but that he had no right to sell until he received his license. Also with what was said in State v. Board of Commrs. of Carver Co., 60 Minn. 510, 62 N. W. 1135, that the license is authority to sell “only from the date it is actually issued.” Surely, the court then had no doubt about the necessity of an actual visible license.
The views of a leading text writer are thus expressed: “It is generally held that the performance by an applicant for a license of the conditions which the statute imposes as prerequisite to the grant of the privilege is not equivalent to an actual issuing of a license to him. His right is not complete until the license itself is in his hands.” And again: “The fact that the authorities charged with the duty of issuing liquor licenses wrongfully or arbitrarily refused to grant a license to the applicant is not equivalent to a proper license, and affords him no justification or defense for engaging in the traffic without a license. He has his remedy by mandamus, and this remedy he must successfully pursue before he can legally begin selling.” Black, Intox. Liq. §§ 119, 121.
But as Mr. Black remarks, there is one decision—Prather v. People, 85 Ill. 36—which appears inconsistent with the general current of cases, in which it was held that a person who had strictly complied with the local laws, had paid his money, and been voted a license by the authorities, would be protected in selling,
Cause remanded, with instructions to proceed in accordance with the views herein expressed.