7 Utah 143 | Utah | 1891
Lead Opinion
This is an application by the plaintiff for a peremptory writ of mandamus to compel the council of Salt Lake City to grant him a license to retail intoxicating liquors. In a verified petition, he shows a compliance in all respects with the express requirements of the statutes and the ordinances in making his application for the license. To the alternative writ the defendant makes its return, verified by George M. Scott, its mayor, and
The power of the city council with respect to the subject is found in volume 1, Oomp. Laws Utah, 1888.
The question now comes, has the council any further ■discretion with respect to granting such licenses? Under its power to regulate, has it any discretion as to the person to whom licenses shall be granted, as, to the place of business, or as to the number of licenses to be granted? 'The legislature could have prohibited the traffic, but it
In Packing, etc., Co. v. City of Chicago, 88 Ill. 221 the court said: “We are clearly of opinion that the-power to require a license is one of the means of regulating the exercise or pursuit of this business. There is, no doubt, a great variety of other means that might be adopted to accomplish the purpose, but these municipalities are not restricted as to the means they shall employ to regulate the business. In the various illustrations of the-meaning of the word ‘regulate/ we find, among others, ‘ to-direct/ ‘ to govern/ ‘ to rule/ ‘ to conduct.5 As the language is used in reference to the power of a city or village government, we must suppose it was intended to-rnean that such bodies might rule or govern this character of business.55 The general rule is that public corporations and officers are required to do what they are authorized to, when such performance would be beneficial to an individual or to the public. Upon the subject of
“It is often material to determine whether a duty imposed by law or charter upon municipal corporations •or public officers is imperative or discretionary. This is always a question of legislative intention, and therefore ■of construction. The general tests to ascertain this intention, propounded in the cases are of doubtful value.
* * * Each case, we repeat, must be largely ■decided on its own circumstances, and the legislative intent gathered from the whole act. No positive, inflexible, or stereotyped rule can be laid down." 1 Dill. Mun. ■Corp. (4th ed.) § 98.
It is apparent from the act under consideration that the intention of the legislature in conferring on the •council the power to regulate the sale of liquor was to -enable that body to protect society from the evils attending it. The benefit of the dealer was not the chief end, .therefore the duty of the council with respect to him must depend largely on the good of the neighborhood. It follows that it is the duty as well as the right of the •council to use all reasonable means to give such protection as the public welfare demands. We are of the opinion that the council, in the regulation of the business, has a wide discretion, but it is not arbitrary discretion. Under the power to regulate, the business may not be prohibited. The authority is delegated to the •councilmen as reasonable men, and with the expectation that they will employ reasonable means. To intrust the privilege of selling intoxicating liquors to persons whose antecedents, habits, and characters are such as to inspire •confidence in them, and warrant the belief that they would not violate the law by selling to minors, habitual drunkards, or intoxicated persons, and would be likely to •conduct their business in other respects with due regard .to goods morals and the. peace and happiness of society,
The exercise of a reasonable discretion as to the localities in which the business shall be carried on would appear to be within the power to regulate. A saloon-along-side of a school-house or a church would be very-undesirable, and to establish one along-side of a man’s home would be regarded as very objectionable. To authorize the retailing of liquors in the midst of the homes of the people would be palpably wrong. Neighborhoods infested with liquor saloons are not suitable communities for boys and girls to grow up in; and so a limitation of the number of places for retailing intoxicating liquors in a city would be a reasonable regulation. Because the council may be authorized to license liquor sellers it does not follow that they must license all who may apply. The powers delegated to the legislative departments of municipal governments are usually exercised by ordinance. The council grants the license by a vote. In that way the power is expressed. When the application is made, it would appear to be a suitable time to inquire and decide as to whether the applicant is a suitable man to be intrusted with the business; and so as to the determination of the place, and as to whether more licenses should be granted. General tests might be established by ordinance, by which to determine the fitness of persons to be intrusted with the business of selling liquor, and ordinances might be adopted designating localities in which the business may be conducted, and limiting the number. But we are not prepared to say that the business may not be regulated in such respects without ordinance. The charter confers the power to regulate the traffic upon the city, without expressly requiring it to be exercised by ordinance. But it is said that the councilmen may act from mere whims; caprice>
We have been referred to a decision of the supreme court of the United States involving the validity of an ordinance of the city of San Francisco, in which this language is found: “The sale of such liquors in this way has therefore been at all times, by the courts of every state, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom, * * * and the hours of the day, and the days of the week, on which the saloons may be opened. Their-sale in that form may be absolutely prohibited. It is a question of public expediency and public morality. * * * There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen- of the state, or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rests in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and tfr issue
The ease of State v. Holt Co. Court, 39 Mo. 521, was an application for a writ of mandate to compel the ■county court to issue a license. The statute provided that, if the court shall be of the opinion that the appli- . cant is a person of good character, the court may grant a license for six months. This fact was admitted. The application was made in conformity with the requirements in all respects of the statute governing licenses, and the county court refused to grant the license. The mandamus was refused; the court holding that, although a party applying for a dram-shop license may show himself to possess all the qualifications requisite for the issuing of a license under the statute, the county court may still, in the exercise of its discretion, refuse to grant such license. Muller v. Commissioners, 89 N. C. 172, was an application for mandamus.
The statute involved in the case provided that the applicant might obtain a license from the county commissioners to retail liquor upon proving a good moral character. The court held that such commissioners were not bound to license an applicant though he be qualified by proof of good moral character; that they had a limited legal discretion, and, in passing upon an application, they have a right to take into consideration the question whether the demands of the public require an increase of such accommodations, and whether the place proposed to establish a bar-room at would be a suitable one. To the same effect is Attorney General v. Justices of Guilford County, 5 Ired. 315; Petition of Raudenbusch, 120 Pa. St. 328, 14 Atl. Rep. 148; Schlaudecker v. Marshall, 72 Pa. St. 200; Toole’s Appeal, 90 Pa. St. 376. The statutes providing for licenses construed in these cases differ in some respects from the Utah statute; but the
In Potter v. Village of Homer, the court held that the village council in approving the bond had the same •discretion and no more than is possessed by other persons •called on to approve sureties. We do not regard the Michigan cases as analogous to the one in hand. The plaintiff also relies upon Zanone v. Mound City, 103 Ill. 552. The court held that the village council, under the power to regulate the liquor traffic, might refuse to license persons of such habits and character as rendered them unfit to be licensed, and to limit the number of dram-shop keepers, but held that the discretion should be exercised by ordinance in order to avoid favoritism and monopoly. From this opinion three of the Beven judges dissented.
After a careful consideration of the statutes, the ■ordinances, and the cases cited, we hold that the defend
Dissenting Opinion
(dissenting) .•
I am unable to fully concur with the majority of the court in this case. The relator appears to have complied with all the requirements of the statutes and ordinances, and it cannot be claimed that the place at which he proposes to carry on the business is within the prohibition of the statute or ordinances. The question arises, can the city council, under the power to regulate (conferred by the charter) impose additional restrictions? If so, how is that power to be exercised? Must it be by ordinance, so that the requirements prescribed, whatever they may be, will operate uniformly upon all alike under the same circumstances, thus precluding partiality and favoritism; or may the council, notwithstanding the compliance by the applicant with all the provisions of the statute and ordinances of the city upon the subject, arbitrarily grant or refuse each particular license as the same is applied for, and that, too, without giving any reason for its action? It seems to me that the regulation should properly be by an ordinance. If the statute conferred upon the council any such absolute power, then, as relator’s-
The sale of liquor has always been a lawful business, in this city. It has never been prohibited by statute, and the council never had the power to prohibit it. By the charter of 1860 it had power to license, regulate, and restrain it. See Comp. Laws 1876, pp. 699-708, § 24. And so it remained until January 20, 1882, when the charter was amended. By the amendment, power was given to the city council to license, tax, and regulate; the power, to restrain being omitted. This leaves no power to prohibit. See Laws 1882, p. 2. The defense rests entirely upon the supposed right of the council, in its discretion, to grant or withhold license as it may see
In the present case it seems there is one saloon in the -neighborhood already licensed, and the common council think this sufficient for the needs of the neighborhood. If this reasoning were sound, the common council might, in their “discretion,” grant to any favored individual an exclusive monopoly of the business in any neighborhood, •or even in the entire city. Could a more fruitful field of favoritism'be possibly devised? It is certainly not in .accordance with my. views as to equality before the law.