The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-02-22
Why he DISSENTED
Junde Miners Opinion in the
Cafe License Case.
ALL MEN HAVE EQUAL RIGHRS
1 Think the Council Had No Right to With
hold the License and 1t Should
Have Been Granted.

Have Been Granted.
am unable to fully concur with the ma
lorlty 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 prohibit
ton OF the statute or ordinances.
The question arises, can the city council,
under the power to regulate conferred by
the cnarter) impose additional restrictions I.
Ii so, how is that power to be exercised /!
Must 1t be by ordinance so that the re-
qulrements prescribed, whatever they may
De- Will operate uniformly upon all alike
under the same circumstances, thus pre-
Guiding Partially and favoritism, or may
the council, Notwithstanding the compliance
by the applicant with all the provisions of
tne statute ana ordinances of the city upon
the subject arbitrarily granite or refuse each
particular license as the same is applied
Tor, and that too without giving any reason
Iof us acton. 1t seems TO NE that the regu-
latlon should properly be by an ordinance.
Ill the statute conferred upon the council
any such absolute power, then, as relator's
counsel contend, are they admirably calcu-
lated 10 enable the members of the city
council to reward their friends and punish
their enemies, but they furnish no safe
guards for equality or honesty of official
action. Some member may vote against
the application because, in their honest
Judgments 1t would be detrimental to the
best interests of the city TO grant it:
another because he believes there are
already saloons too many; another because
the applicant is personal enemy of his
another because the applicant is not a mem
Der OF his religious or political faith
another because he doesn't think it right to
sell liquor or license a wrong: another be-
cause ne wants 10 prohibit the sale; thus a
bare majority may be secured against the
Issuance OF the license to one man and
grant 1t to another.
Its claimed that in this case seven coun-
cilmen voted for, and seven against the pc
tltlon, the mayor giving the casting vote
agalnstlt. Neither the council, as body,
nor any Individual member thereof voting
against the application, gave or could be
induced to give any reason Tor his vote OF
| action, and why this license is refused
this court is still in ignorance, except by
the return which gives no reason for indi-
vidual or corporate action
| The sale OF liquor has always been a law
full business in this city. 1t 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 compiled
laws 1876, pages 699-7 FOB, Sec "a.
| And so it remained until January 20,
loS2, 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. g.
The defense rests entirely upon the sup
posed right of the council in it's discretion
TO grant or withhold license as it may see
fit.
All men are equal before the law. and if
one man on complying with the statutory
| provisions may be licensed to engage in the
business OF selling liquors every other man
In like condition, on complying in like man
| ner with the condition. imposed by law has
an equal right to a similar license Legis-
latlon in a republican form of government
should meet out equal rights to all law
abiding citizens, and it is alike against the
spirit and form of our government and in
situations to grant any special privilege to
any one Individual and deny it to another
who stands on equal footing with himself
and this IN my judgement, cannot be &C
complished under the guise of s'discre-
| tion.n
The "discretionn vested by the legisla-
ture in the city council is not an arbitrary
power to be exercised as the caprice or pre-
JUDGES of that body may dictate but legal
! discretion whereby the council is to deter
mine whether or not the applicant has sub
stantially complied with the provisions of
| law.
| The common council of a city must be
governed by the same rules of law in their
action upon the granting of these licenses
as other bodies who are called upon bv
statute to pass upon the qualifications of
others to engage in any business or calling
requiring special conditions preliminary to
| its exercise, and they are bound in all
cases to act fairly and to treat each appli-
cation upon its own merits impartially.
| In the present case, it seems there is one
saloon in the neighbohood 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 OF
even in the entire city; could more fruit
ful held OF favor1telsm be possibly de-
vlsed! 1t Is certainly not in accordance
with my views as to equality before the
| law.
| That the discretion invested in the com
mon council is not an arbitrary power, but
a legal discretion to be exercised equally
towards all in like conditions, l might cite
numberless authorities. l call attention.
however, to &c parte Candee, 40 Ala, 3S6
State VS.. Lafayette Co., Al Mo-, 221- 227
Miser VS.. Supervisors, 26 Mich, 400: Am
perse VS.. Kalamazoo, SO Mich. rs; Potte,
VS.. Homer, 80 Mich, s: Canonee VS.. MOUND
City, 103 ILL.,, 552; 81 Ind, 90; IL Am. anG
! Eng. Ency. of law, GAL.
1t is true that the charter of the CITY
allows the council power to license, regu-
! late and tax this business. which is create,
authority than merely to approve or reject
the bonds, but the council have not de
cided that the place or neighborhood was
! improper wherein to carry on the traffic
nor that the relator was disqualified
in any manner, but have merely
said in effect that in that neigh
borhood one man may engage in thu
business, but another may not. This is
not question of prohibiting the traffic il
that locality, but of prohibiting a particu-
lar individual, against whom no disoualiti
cation is alleged, and who has complied
with the law, sfrom engaging in the bust
ness, and at the same time permittine
another, under no worse legal circum.
stances, to do so. This cannot, in nv view
be deemed within the discretionary power,
Of the council.
think the council has no right to with
hold the license, and that the III andamu!
should issue as prayed.
THE LUMBER DEALERS.