The Hartford herald. [volume] (Hartford, Ky.) 1875-1926, 1876-10-18

it is no protection to defendants who
are charged with the offcnse of keeping
a tippling house.
The question presented for consid-
GRAFTON here is, whether the license to
keep a coffee house shown by defend
ants, comes up to the requirements of
the law.
If the license first issued by direct
ion of the city council to the defend
ants did not specify the privilege to
sell spirituOus liquors, it was technic-
ally insufficient; and whether the
mayor might lawfully insert the privi-
lege subsequently, or might substitute
another paper containing the privilege,
it is not necessary here to determine.
The vital question is: Did the coun-
ell in granting license to defendants to
keep q coffee house, deem It erpe-
dent, to confer the privilege of selling
spirituous liquors? And did they
specify the privilege in the grant?
The record of the council simply
says, that defendants are granted a
license to keep coffee house, on COM
plying with the law, and the said re-
cords show nowhere that the council
deemed It erpedient that the defendants
might sell spirituous liquors. Nor do
the records anywhere specify that de-
PENDANTS might sell spirituOus liquors.
The license or paper called license,
does not so specify the privilege nor
intimate anywhere, that the privilege
was granted to defendants. We find
it neither in the records, nor in the
paper called license issued to defend
ants. If it is not in the records through
which and by which alone the coun-
ell can be heard and can speak, it is
immaterial whether the privilege was
expressed in or omitted from the Ii
cense. The issuing of the sO-called Ii
cense is simply ministerial act, COM
pellable by mandamus, while the
granting of the license by the council
is an act requiring under the law, an
exercise of prudential discretion. The
right to keep coffee house with the
privilege of selling ardent spirits, is
based upon the act of the city council
and not upon paper which only GER
titles the fact.
1t is urged by the learned council
for defendants that the price prescrib-
ed in ordinance No. 40, as amended is
conclusive that the privilege was grant
ed by the council. There is nothing
in the records to show, nor in the oral
proof, that defendants paid that sum,
and even were this the case, we would
find ourselves in the domain of i'm
plication, which is expressly forbidden
both by statute and authority. There
being nothing in the records of the
council showing that the council DEEM
ed it expedient to confer the privilege
to sell spirituous liquors, this privilege
can only be implied or inferred.
l cannot construe the 24th section Of
the city charter as insisted on by the
council. The exclusive control
there conferred, connOt by any fair in
tendment, be made to mean more than
that the Mayor and council should
have exclusive control of the granting
of license-shOuld independent of the
State authorities determine to whom
licenses should be granted and all 9th.
er questions connected Herewith.
This charter was enacted day Of
10 while the Revised Statute;
were in force and while persons might
keep coffee houses under State authori
ty or rather be protected by the same,
and this provision of the charter wa:
doubtless intended to remit the regu
lation of licenses to the city authOri
ties and divert the seller Of this pro
lection, the State only requiring that
her revenue should be paid. l can
discover nothing in the charter in con
flict with the general laws upon these
subjects.
Nor can 1 admit.that the case in
Ben Monroe Is applicable, or inconsis
tent with the views here,expressed. The
court held in that case, that the State
abdicated entirely, in favor of the town
of Hopkinsville and entirely surren.
dered her right to require revenue OF
to license, and that as the defendants
had fully complied with all law appli'
cable to the locality, he had full au'
thority to sell spirltuous liquors. In
short, that his license was complete
and accorndig TO law, which cannot be
said of the license in this case.
-
There is nothing more truly insinua'