Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1891-01-31
The MANDAMUS DENIED.
Compelling The City Council 10 Issue
Liquor License
10 Z. J. PERRY AND COMPANY.
Tho Opinion In Full as delivered by
Chief Justice Zane.

Last evenings issue Of tho NEWS
contained q synopsis Of tho decision OF
the supreme Court Of the Territory ON
= writ Of mandamus compelling the
City Council 10 Issue liquor license TO
Ell. Perry a Company, delivered by
Chief Justice zsno yesterday after.
noon. The opinion is given below In
FULL.
j.. J. Perry, plaintiff, vs.. Salt Lake
City, defendant;
Zane, C.J.-This Ia an application by
the plaintiff for perompiory writ %
mandamus 10 compel the Council
Of Sslt Lake City ~ grant him H.
csnac 10 retail Intoxicating liquors. In
verified petition hc shows n COM
plisncc In all respects with the express
requirements Of tho statutes and the
ordinances In making his application
for the license.
To the alternative writ the defend
ant makes Ia return, verified by Geo.
Nj. Boot, iis mayor, and signed by
Samuel A. Merritt, lis attorney and
Charles 3. Varian, associate counsel.
On tho return the defendant states the
following facts and relies upon them ar
q sufficient reason for not granting the
license: That tho city had issued u
theatre license TO Charles r. Rey.
nolds A Co. with tho express under.
standing that no Intoxicating
liquors should be rctailed Ia
the building, and that the plaintiff
as In believed In collision with that
company In endeavoring To obtain the
license 10 sell liquors In room In its
basement; that the building In situated
on franklin Avenue, n narrow street;
that this street and the block through
which IL extends, IL occupied almost
exclusively by residences; that about
twenty rods from the theatre are pub
lie school and n house for religious
worship, and fiftcen or twenty rods
from them isanothcr church; that there
IL ono saloon In tho avenue opposite
the theatre believed 10 hs Ur 7II
SUFFICIENT TO SUPPLY ALL REASON.
ABLE DEMANDS tgTI
nrc OF tho variety class aud nrs attend.
III almost exclusively by males; that
the plaintiff, without license anu con.
stsaJ W INV rbth ftIbVf tut IObUI
ON two nights after tbs first refusal 10
Issue tho license and that on the night
Of tho l4th inst. ring fight was per.
mitted In the theatre.
In conclusion the defendant claims
that II acted within its discretion IN
refusing to grant tho license and that
the solepurposc OF its members Ia doing
90 was n desire To preserve pablo order
and the morals and happiness OF tho
people Of the ncighborhood.
In view u thc foregoing facts, ought
the court to grant tho pcrcmptory man.
date?
II the refusal 10 grant the license
was not within the discretion Of the
council the wit should Issue; but II II
was, then Il ought not.
Tho power OF the city Council with
respect 10 the subject Il found IN vol.
ume Complied laws Of Utah, 1883.
Section lTo5 In as follows "Tho city
Council shall have tho following pow
crs; 4Oth--to license, regulate aud tax
tho manufacturing, selling, giving
away or dinposing OF In any manner
amy Intoxicating liquors." rhc section
also provides that the term OF the lie.
enso shall not extend beyond tn, mum.
cipal year In which u IL issued, and IL
II subject 10 the restrictions OF the gen.
cral laws of the Territory, and n bond
IL required, aud the sale 10 minors.
idiots, habitunl drunkaris or persons
Intoxicated, II prohibited. Section
tolb, volume., same compilation, for. |
bids tho selling or furnishing OF intox-
icating liquors 10 any person IN the su.
ditorium or Hobbies Of any theatre, etc. |
THE PowER NJ LicEssE, REGULATE
AND TAX
the sale or disposition Of intoxicating
liquors within its limits IL possessed by |
balt Lake City except 10 far as IL |. |
regulated 10y tn, above provisions.
The Council Of Salt Lake City under |
the power 70 license, regulate and tar,
has by ordinance required n petition |
by the applicant 10 be- presented In |
which the place Of business and some |
other minor facts are required 10 be |
stated, and also a bond IN tho sum OF |
81 900, with surelies and provisions M
provided. The license Il required 10
be limited TO three months and for n
retail business $500 Ia charged. The
sal. without license, and tn. sale TO
Indians, Insane or idlotic persons or TO
minors, anu the sslo on sunday Is for.
hidden and punished. And II IL also
provided that the mayor may, by pro.
,lamation, forbid the sale or disposition
OF such liquors on election days and
legal holidays.
The question now comes, has the
Council any further DISSECTION with
respect 10 granting such licensesg
Under its power TO regulate has ii any
discretion as 10 tho person 10 whom
Licenses shall DO granted, as 10 the
place OF business, or ~ 10 the number
OF licenses 10 he granted2
The legislature could have prohibited
the traliic, but II did not do No.
However, It did give the City Coun.
on tho power 10 license, regulate and
TAX IT, The power 10 conferred on a
uellbefstlvo body. Aud lts authority
with respect To the subject IL not limit.
oil To more ministerial duties, The
power OF the legislature was Unlimited
win respect to the huainoss. and ali on
IL except tho power 10 prohibit, subIert
70 few restrictions named, was CON.
ivried by tho charter upon the Ioc'J
legislature. And the will Of mlch n
hody Is expressed by vote 'and Win
the right 70 vote upon any question IN
Implied the discretion 10 vote Tor or
against