7 Wyo. 417 | Wyo. | 1898
On the 5th day of October, 1897, the relator applied to the city council of the city of Cheyenne for a license permitting him to open and conduct a retail liquor establishment for the selling of spirituous, vinous, fermented, and intoxicating liquors in a building known as 606 and 608 West Eighteenth Street in said city. In his application it was stated that the relator had his United States license for 1897, and also his county license running from May, 1897, to May, 1898. At the same time he submitted a bond in the amount prescribed by the city ordinances. The council at a regular session of that body refused to grant the application. The records of the council showing in brief that the application was referred to the police committee, who reported adversely thereon; that the report was adopted by the council, and the license fee which accompanied the application was ordered returned to the applicant.
The relator thereupon obtained an alternative writ of mandamus from the district court. After the' disposition of some preliminary matters of pleading, an answer and reply were filed, and the whole case submitted upon an agreed statement of facts, embodying therein the matters above stated with other facts upon which it was agreed the cause might be determined. The district court upon its own motion, thereupon reserved certain questions arising
The chief point of contention is the right of respondent to refuse to grant the license. The questions are fifteen in number, and present some matters which we do not conceive it necessary to decide in this cause.
The answer alleged that the place at which the relator desired to open and conduct a saloon under the license applied for had been for a long time known as the ‘ ‘ Chicago Saloon;” and it had become a notorious resort for lewd, disreputable, and vicious people; was conducted in a disorderly manner, and so that constant surveillance on the part of the police force was required in that part of the city where the saloon was conducted, in order either to prevent the commission of crimes or violations of the city ordinances, or to arrest parties guilty of committing crimes or of such violations; and in consequence thereof, the locality in which said saloon was conducted acquired a reputation of such an evil character that it was deemed best by the council that no saloon should be maintained or kept in that particular locality. That, in pursuance of that determination, the ordinance of February 16, 1897, which will be adverted to in connection with other ordinances of the city, was adopted. These particular facts, although not denied by the reply are not brought into the agreed statement of facts. Instead thereof the entire proceedings of the council relating to the matter are made a part of the statement together with the ordinances. From them it appears that on November 24, 1896, at a meeting of the council ‘ ‘ the mayor called the attention of the council to the- recent developments in connection with a certain saloon in the western portion of the city, known as ‘ Chicago Saloon.’ The mayor was of the opinion that such resort was one of a menacing nature to the city, and might sooner or later create trouble of a serious and expensive nature to the city. He further stated that in his opinion no license should be granted to such places, and if it was in his power, he would refuse to issue same,
On February 2, 1897, one Mollbefg, who had theretofore conducted the saloon referred to, applied for a continuation of his license. The matter was held over until February 16, 1897, when at his request he was allowed to 'withdraw his application. An ordinance was, on that date, adopted regulating the subject, for the particular locality in question, in connection with other ordinances already existing. At that meeting also a license was ordered issued to one applicant for 620 West Eighteenth Street, and on March 2, 1897, a license was ordered issued to another for 333 Bent Street, and licenses were refused to two others, respectively, one of them desiring a license for the place specified in relator’s application, and the other for a place directly opposite and in close proximity thereto. The two licenses granted were for places located within the limits mentioned in the aforesaid resolution, and in the ordinance of February 16. The places for which the said licenses were refused were also within said limits.
The ordinances of the city, governing the subject of liquor licenses with the exception of the one of February, 1897, were originally adopted prior to the taking effect of the present city charter, and when the municipal affairs were controlled by a board of trustees one of whom was chosen as president. Such ordinances were continued in force by the new charter of 1877, until repealed or amended. (Sec. 174, Cheyenne City Charter, page 115, Rev. Stat.)
Under the present charter, the corporate powers are exercised by a mayor and council consisting of nine members, and the new corporation became the legal successor of
The municipal ordinances conceded to affect the matter of liquor licenses are as follows: ‘ ‘ The president or board of trustees are hereby authorized to grant licenses for the sale of spirituous, vinous, fermented, and- intoxicating liquors, to any person who shall apply therefor, upon such person executing to the city of Cheyenne a bond, with at least two sureties to be approved by the president, in the penal sum of three hundred dollars, conditioned that the party so licensed shall faithfully observe and keep all ordinances heretofore passed or to be passed during the period of such license. On compliance with the foregoing requirements, a license shall be issued to the applicant, which shall authorize the person or persons therein named to sell, barter, give away, and deliver wines and liquors, whéther vinous, ardent, or fermented, in quantities less than one gallon in the place designated in the application: Provided that no license shall be granted or issued for a less sum than one hundred dollars a year, or twenty-five dollars for each quarter of a year, and all licenses shall be issued quarterly, payable in advance.” (Art. 6, Sec. 1, Chap. 31, City Ordinances.)
Section 4 of the same article prohibits the sale of any liquors in the city without a license, except by druggists for medicinal, mechanical, or sacramental purposes, and penalties are imposed for violation thereof. The above are found in a general ordinance concerning licenses adopted in 1870, which covers in separate chapters a number of occupations. The first chapter thereof regulates the issuance of licenses generally; and, in substance, it is provided thereby that all licenses which may be issued under any ordinance of the city shall be subject to the ordinances and regulations in force at the time of the issuing thereof; that all licenses shall be issued and signed by the clerk, under the city seal, pursuant to the order of the president or board of trustees, upon the payment to the marshal of the sum assessed therefor, together
On February 16, 1897, the following ordinance was duly passed and approved: “That hereafter no license for the sale of spirituous, vinous, fermented, or intoxicating liquors of any kind shall be issued by any officer of the city of Cheyenne, without special permission of the council for the sale of such liquors, within that portion of the city of Cheyenne, bounded on the south by Seventeenth Street, and on the east by Thornes Street.”
The place named by relator in his application is located in the portion of the city covered by that ordinance.
Persons engaged in selling liquors are also required by general law to obtain a county license therefor. (Title, 26 Rev. Stat.) If the business is licensed to be carried
On behalf of the relator it is contended that, in the absence of a statute which either expressly, or by implication, gives to the licensing authorities a discretion in the matter of issuing licenses, an applicant who complies with all the prescribed conditions is entitled to his license; that no discretion is vested in the city council; and that the powers with which the council is clothed must be exercised by ordinance. It is then argued that the relator has complied with the law and ordinances in his application, and is entitled as a matter of law to the license applied for. 0 Counsel says that the corporate authorities have • adopted ordinances, and now refuse to comply with them. His contention in this respect seems to be based upon that provision of the ordinance of 1870, hereinbefore quoted, which says: “On compliance with the foregoing requirements a license shall be issued to the applicant,” and upon a construction of the ordinance of February, 1897, as neither adding to or modifying the former ordinances. The position is taken that it was at all times the duty of the council to order the issuance of each license, but that the ordinances on the subject must comprise a general rule applicable alike to the cases of all applicants.
If the original ordinance should be held to have had the effect contended for, and as having máde the issuing of a license imperative upon the council when an applicant had complied with its conditions, then we are not able to assent to the construction which counsel for relator
Whether the ordinance is one which may lawfully be adopted and executed depends upon the power conferred upon the city by the charter, and a consideration of the legality of such a discretion if it proceeds from legislative authority.
The charter invests the city in its corporate capacity with authority and power to enact ordinances to £‘levy and collect taxes on * * * dram shops, saloons, liquor sellers, * * * and regulate the same by ordinance.” (Sec. 161, Rev. Stat.) Several other occupations and kinds of business are specifically mentioned in the subdivision of the section quoted from. It is conceded, and indeed insisted on behalf of relator that the power to tax, as given by that particular section, includes authority to license. The authority ‘ ‘ to regulate the same by ordinance ” counsel dismisses from consideration, apparently on the ground that it must be held to refer only to the occupation or business last named; viz., “shows, theaters, and all kinds of exhibitions for pay.” This court did not take that view of it in the case of City of Cheyenne v. O’Connell, 46 Pac., 1088; 6 Wyo., 491, and we do not now conceive such view to be the correct one. The clear intent and meaning of the provision is that as to all the occupations and kinds of business mentioned in the subdivision, the city may enact ordinances not only to tax but to regulate. We agree that the power to license is included in the power to tax and regulate. Other provisions of the charter authorize the property employed in the several occupations to be taxed upon an assessed value for general revenue purposes, and the evident intent and force of this
The Legislature has not attempted to regulate, in any manner, the matter of municipal licenses. The general law concerning county licenses does not affect the power which has been- conferred upon various cities and towns to require a license for the sale of liquors within their respective limits. If a municipal license is provided for by any municipality in lawful pursuance of its charter powers, it is in addition to the county license. Where both are provided for, one must possess both to lawfully sell liquors within the corporate boundaries.
It is now well and conclusively settled that the Legislature may not only regulate and restrain the sale of intoxicants, but may entirely prohibit the same. It possesses the fullest and amplest powers in that respect. (Mugler v. Kansas, 123 U. S., 623; Ex parte Levy, 43 Ark., 43; Black on Intox. Liq., Secs. 34, 37, 39.) Authorities might be multiplied, but the principle is now too well established to require further reference to them.
It is likewise settled law that such power may be delegated to municipal corporations, in the absence of constitutional restrictions, to be operative within their respective limits; and this is true, notwithstanding that the subject has already been provided for by the general laws of the State. (Black on Intox. Liq., Sec. 217; 1 Dillon Mun. Corp., 4th ed., Sec. 308.)
The Legislature may confer a lawful discretion upon boards and officers appointed to grant liquor licenses. This proposition is not denied, but it is urged that unless such discretion is conferred, none exists. We need not dispute such contention. The question, however, may often arise whether the discretion in any case exists. It has been held to have been conferred in very many cases under varying forms of legislation, but a discussion of the cases at this time will hardly be useful. They may be found collated in Black on Intox. Liq., in notes to Secs.
There can be no doubt but that where a municipality has legislative authority for such purpose, it may restrict the localities within which intoxicating liquors may be sold, and that the character of persons to whom licenses for the sale thereof shall be issued, may be prescribed. The city of Cheyenne, in its corporate capacity, has been given complete authority to enact ordinances to regulate the sale of liquors within its limits. The charter also authorizes the enactment of ordinances to prevent and remove nuisances (Sec. 161, R. S., subdivision 7); to prescribe limits within which “dangerous, obnoxious, or offensive business may be carried on” (Subdivision 18); to restrain, prohibit, and suppress. tippling shops, * * * and other disorderly houses, * * * and all kinds of public indecencies (subdivision 4), in addition to the power contained in what is generally known as the general welfare clause.
Although it is not necessary to resort to any other statutory authority than that contained in subdivision 3, the above provisions are referred to as exhibiting the very ample powers bestowed upon the municipality for the purpose of maintaining its internal peace and good •order.
The entire argument on behalf of the relator is based upon the assumed absence of-a discretion of any character in the municipal authorities. The assumption is erroneous.
The Legislature conferred upon the city the power to enact ordinances regulating the subject, to the same extent, possibly short of entire prohibition, as the Legislature itself could have done by a direct and comprehensive statute. In pursuance of that power, the city has enacted ordinances which vest in the council a certain discretion as to a stated locality.
The question, nevertheless, arises whether or not the
It is a fundamental principle that there is no inherent right in a citizen, or any one, to sell intoxicating liquors by retail, and that there is not a vested right in any per- ' son to have a liquor license. (Crowley v. Christensen, 137 U. S., 86; Ex parte Levy, 43 Ark., 42.) “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 rest 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 to-issue licenses for that purpose. It is a matter of legislative will only.” Crowley v. Christensen, supra.
The precise question, arising in the case at bar has engaged the attention of the courts in a number of adjudicated cases, and they unite in upholding a law or municipal ordinance such as we have in this case, and a reasonable exercise of the authority and discretion granted or retained thereby, as applied to the sale of intoxicating liquors, unless the regulation comes in conflict with some general law, or the discretion is exercised arbitrarily and without any consideration or reason in an individual case.
The city and county of San Francisco possessed the power, under the constitution, to make “ all such local, police, sanitary, and other regulations as are not in conflict with general laws.” An ordinance of that munici-’ pality provided that no liquor license should be issued unless the applicant should have obtained the consent of a majority of the board of police commissioners to carry on the business, or in case of the refusal of such consent, then upon the written recommendation of not less than twelve citizens of San Francisco owning real estate in the block or square, in which the business is desired to be carried on. lío material distinction between that and the
An ordinance of the city of Grand Rapids, Michigan, required every applicant for a liquor license, in addition to other conditions, to obtain the consent of the common council. The charter authority was ‘ ‘ to enact such ordinances, by-laws, and regulations as they deemed desirable, * * * to restrain license and regulate saloons, and
The mayor of Chicago refused a liquor license for a place in the midst of a dwelling-house district, and the appellate court sustained him, holding “that a court should not by mandamus compel the public officials to issue a license for the keeping of a saloon in a residence neighborhood, where a saloon will be a nuisance.” Swift v. The People, 63 Ill. App., 453. That decision was rendered notwithstanding the case of Zanone v. Mound City, which will be referred to.
The council of Salt Lake City, Utah, had power “to license, regulate, and tax ” the sale of intoxicating liquors. A municipal ordinance required a petition by an applicant
There are cases which announce the general doctrine that where privileges are granted by law they should be open to the enjoyment of all upon the same terms and conditions. So far as that principle, when given its broadest significance, is held to forbid a municipal corporation to make any discrimination between applicants for license to conduct or carry on a particular business, it has usually been applied in the case of such industries or avocations which are necessary to the well-being of the community and harmless in themselves, but by reason of the character of the employment require municipal regulation. A clear distinction, however, is generally recognized between such occupations, and the business of selling intoxicating liquors, the latter being one which, in the exercise of the police power of the State, may be entirely prohibited.
We do not therefore conceive it either necessary or desirable to attempt any review of the decisions relating to the former class of employments.
A case which has denied the power of a municipality to refuse a liquor license to one who has complied with the procedure and conditions prescribed by law, is ex parte Theisen, 30 Fla., 529. That case, however, is easily distinguishable from Crowley v. Christensen and the others in harmony with it. The Florida court referred to those cases, and as a feature which distinguished them from ex parte Theisen, mentioned the fact that the statutes of the State contained specific regulations relating to the sale of liquors, and the issuance of municipal licenses therefor, and the court said, ‘ ‘ Our decision in the case at bar rests upon the conclusion that the grant to municipal corporations to regulate and restrain, will not permit the enactment of an ordinance under which arbitrary discrimination may be made in respect to matters which are exclusively under statutory control and regula
The case of Zanone v. Mound City, 103 Ill., 552, is cited as authority against the validity of the refusal of the license to relator in the case at bar. In that case, however, the municipal authorities offered no sort of excuse, justification, or explanation of their action in refusing the license, but they rested upon what was contended to he their power of arbitrary discrimination. The ordinances did not provide for the previous consent of the board. All that the case decides is that’ the corporate authorities could not exercise an arbitrary discrimination, and could not refuse a license through mere caprice. It was not denied but that the city might limit the number of dram-shop keepers to be licensed, or refuse licenses to “persons of such habits and character as render them unfit persons to be licensedbut the court says that the authorities had not decided that the applicant was an unfit man. It was said as to limiting the number of licenses that it should be done by ordinance, and in such a way as to avoid favoritism and monopoly. Three of the justices dissented in that case. The case of Swift v. The People supra was decided subsequently to that of Zanone v. Mound City, and the appellate court, evidently, did not consider the latter case as denying the principle that for good reasons the authorities of the city could refuse a license for a place which would be detrimental to the best interests of the municipality and its citizens. As good, if not stronger, reasons may exist for discrimination as to the place where liquor shall be permitted to he retailed in an incorporated town, as for such a discrimination between individuals based upon personal fitness.
In the case at bar the council has not refused the license
We conclude, therefore^ that under the charter authority to enact ordinances to tax and regulate, the city possesses, the power to license saloons and liquor sellers; to regulate the same by ordinance by prescribing the locality or localities in which such business shall be permitted, and to provide by ordinance that the consent of the council shall be obtained before the issuance of a license for the sale of intoxicating liquors within certain limits, and that the ordinance of February, 1897, has that effect, and that the same is valid. We have not much, if any, doubt but that the discretion should be reasonably and soundly exercised; it should not be enforced merely as a matter of caprice, but the action of the council should appear to be based on reasons. It does so appear in the case at bar.
These considerations must necessarily dispose of the controversy, and must result in á denial of the writ prayed for. It should perhaps be mentioned that the county license which relator held, running from May, 1897, to May, 1898, did not permit him 'to sell within the city, but was issued for a place outside the municipal limits. He had applied for, was willing and ready to acquire, but had not received, a license from the county authorities to operate within the city.
The charter authorizes the city to enact ordinances ■regulating the matter of granting licenses for the selling at retail of intoxicating liquors, and in pursuance of that authority the ordinances may vest a discretionary power in the council, the same to be reasonably exercised, as to the place or places where such sale, within the city, shall be permitted or denied, and may prescribe the locality or district within which said sales may be, and without which may not be, licensed; and that the council, upon the facts and circumstances set forth in the agreed statement of facts, had authority to refuse to issue a license to the relator, notwithstanding that he should give a sufficient bond conditioned as required by the ordinance.