Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1891-02-25
JUDGE MINER DlSsENTS.
lie Thinks The Mandamus In the Variety
Theatre Liquor Casc should Issue.

! am unable 10 fully concur with the
majority Of the Court In this ease.
The rcldpr appears 10 have complied
with oil the requirements Of the statutes
and ordinances. and u cannot he claimed
that the place NJ which he proposes "
carry On the business u within The pro-
hibition Of salute or ordinances.
The question ARISES, can the city
! Corncll, under the power To regulate
iconfCrred by the ohauurl Impose addi-
,iunal resttictions7 n 80. how y that
power 10 he rNofcisodg Must It be- by or
dinauco. 90 Inst the requirements pre-
scribud, whatever they may hc. viii OPP
crate uniformly upon all alike undcr the
same circuuGnuc' s.thus pfccluding par
tialily ind ia,ofiiisin, or may the cuun-
| eli. notwithstanding the compliance by
the applicant with all the provisions OF
The statutes and ordinances OF the city
/ upon tie suldcri. arbitrarily grant or re-
I ttisc each par ocular license ~ the same ~
/ applied ior, aud that too without giving
ANY reason tor H. action. II seems 10 me
/ The regulation should properly De ny an
ordinance.
n The statute conferred upon the Coun'
| III any sri II absolute power, hen a. re-
I lhtou' counsel contend, are they huniF-
ably calculated u enable The members 81
D The CITY Council TO reward ihrii irieuds
I aud punish .hrir enemies, but thoy mr,
uish no safeguards Tor honesty OF onhehl
I action. ~uinn members may vote against
I tho application because Ia their honest
] Judgment 10 would ~ detrimental % the
l Dost intoiost. Of The city 10 grant ii au-
I other because be believes there hfo nls
| rpads saloon. too many. nnottot hcnua"
the applicant lisa personal enemy 81 hl-,
another because he " not iuoinhrr ol
HE religious or political hithi nnuihot
I because he ducsn't think u fight o. soll
. a Inc
cause he wants To prohibit the snlc thus
q bare majority may be- secured elulns.
the Issuance u u license To ono tnan aud
| giant 10 TO another.
II j. claimed that
Firt-iu this ease sovcn councilman
vo'Cd for and scven ugainsi thu petition,
the Mayor plsing the casting vote against
II Neither tho Council. uH body, nor
any individual momhtr thereof Nuling
against tho application, gave or could hc
induced to give any reason i0r hi- vote OF
aciiou, and why this llcoisu Il refused
thia Court j. sun In ignofnncc, except by
tie return which gives no reason for nj
dividual or corporate action.
The salo ~ liquor has always boon q
lawful husinesi IA this city. IL has never
been prohibited hy statute and the Coun-
80 never had the power to prohibit u.
By lhr charter Of lsd0 it had power To
llrouse, regulate and rCslrain i.
Osoc complied laws 1915, Pr. oHo-iui,
Section 5i.l
And 20 II remained until January 20.
issa, whom III, charter was amended. By
the amendment, powor was given 10 the
CITY Council to hconsu, tax nnd rvgulnte,
the pow0r TO restrain h0lng omitted. THIS
leaves no power To prohibit isen laws
lss2, y. -
The defense rests entirely upon the
l'suppused right of the Council Ia It, dis
erection 10 grant or withhold license W. II
may SEQ a..
an mon nrc equal before the law. aud
| II one man. ON complying with the stat
u,ory provisions, may Boo licensed To en-
gage la the business Of sclilng liquors,
every other man In Ike condition, Oh
complying with the conditions hnposcd
Nv law. hna IN equal right 10 similar
lironso. Legislation la u free republican
furm ~ government should mot. cut
equal right. To- all lawabldlng oIl1on-
and u II glik. against the spirit aud ioriu
Of our Government aud institutions IL
grant nay special privileges TO one indi'
yidual and deny u To nnolnor who stands
un equal founng with himself; nnd this
In my Judgment, cannot he accomplished
under The guise OF 'discfe.ion.n
The "discfetion" vested by the i.ogi-ln'
tura In the Gity Council d. not an urbi.
trfv power a. be- exercised ~ tho caprc,
or prrludicts " that body may dictate
hut legal discretion whereby tho COun
eli IL TO determine whether or not the up
plicaut has substantially compiled With
the provisions u law.
Thn common council ~ city must b,
governed hy tho same rules OF law ~
ihuir action upon the granting 81 thes'
licences u. other hodirs who uro called
upon hy statute To pas upon the qnaliii'
cntious Of others TO engage In any bust
mess mr. calling requiring special condi
ti0ns preliminary N IT, exercise, aud thuN
are hound la all eases 10 act mirly aud
To treat each application upon ils owt
merits, SIMS aIiinlly.
In the present cise II seems there ~ on,
saloon in tho neighborho0d already
licensed, and The common council think
II sufficient for the needs of The neigh
hofhond. N ihi. reasoning was sound
tho common cuuncil nigh, M their dis.
orcliuu," grant 10 any favored individual
an exclusive monopoly 81 the business IN
amy neighhorhood, OF oven IN the onlir,
city, could more fuiliml Hold Of iuNor'
itism he possibly dovisedg IL iscortalnly
NOT IN accordance with my views as u
equality before the Law.
That the discretion vested In the Com
mon Council II not an arbitrary power
but legal discretion H. be- exercised
equally towards all IN Ike condition.
| mlgnt NliN nuthh'ffN- aAih'iiihN.
call attention, lnwoycr, 10 cS parlc Can
dee. IS Ala, $50: SUITE VI. laihN ute Co.
II Mo. .al-s.7, Mlser ". supervisor, .
Mich, 49, Anpetsc W. knlamasuo, ..
Mich, Il; Potter ". Homer, % Mich, n
Caunno0 ". Mound CITY, i0i Ill, bi1; u
Ind; o.; n Am. & Eng, Iucy, nilnW, uil
II IL true that NE charter or tho city
allows the Council power to license, rogu'
late aud inN this business, which j.
greater authority than merely To approx,
ur reject tho bonds, hut tho Council ms
not decided that tho place or neiphhor'
hood was improper wherein 10 carry on
| The irnilic, NOS that tho rclnior WINS dis
uunllhed In ANY manner, but they merely
said Ia ,flccl that IN that noighborhuod
one man may engage inihc husin'-s. hui
another may not. This ~ not question
ufpruhibiting The Traffic In that locality
hui of prohibiting u particular lndiyldul
against whom no disqualification j. AL
legod, aud who has compiled with N,
law. iroin engaging In The business and
NJ tho same tlmo permitting another
under no wofho legal circumstances 90 d.
10. This cannot In iny Wow ie dcomod
within tie discretionary power OF The
Council
think tho Council hnd no right to
withhold tho llrensu, and ihnt tho man
dnmus should i-suo ~ prayed.
DINWOODEY