The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1894-06-13
HIS LICENSE GOOD.
Judge Humes Vacates the Order
Of the Lower Court.
consIoINE BECOMES VICTOR.
The Court Holds That the City Should
Have offered 60 Return the Theater
License Money.

The case on appeal OF the city against
j. J. Clark and John w. Considine.
charged with a misdemesnor IN conduct
ing the Peoples theaier adjoining and
connected with q saloon, came up for trial
before Judge Humes yesterday. occupying
nearly ell day and resulting in the city
being defeated in its object A jury had
been waived by both sides, and the state
ment OF facts having been agreed upon.
the matter resolved itself to the argument
o. the law points involved. Mr.. John
Wiley. representing Considine, spoke for
nearly five hours, exhausting law
library on quotations and authorities.
Dir. W. i. Scott. the corporation counsel,
made brief reply 10 Mr. Wiley, and
Judge Humes came TO the pith Of the
matter in an equally brief decision.
Mr.. Wiley opened his argument by dis
cussing the power of the city to license
and regulate occupations. contending that
the city only had power to regulate those
occupations which are Of such a nature rs
to effect the public health or the good
order OF the city or disturb the public
peace. He said that the business of con-
Quoting 9 theater could not be held as
matter OF Law to be one which either
effected the public health, the good order
or the peace Of the city. and that it was
only the combining of the business of con-
Quoting theater with that of selling in
toxicating drinks that could by any man.
ner Of reasoning bring the occupation
within the class the city was authorized 10
regulate. Therefore the Peoples license
must have been granted to conduct thea
ter in which Intoxicating drinks are sold.
and not merely to cover the business OF
conducting theater. q license for which
could be procured for the sum of 500 In
other words. that conducting g theater in
which Intoxicating drinks were sold was
separate and independent branch OF the
theatrical business.
He contended that neither the title OF the
ordinance nor the body of the ordinance
gave any intention on the part of the lew
making power to revoke outstanding IL
censes: that under the authorities and the
provision OF the charter requiring every
ordinance to embrace one subject, and that
to clearly be expressed in its title, the
title TO the ordinance should be an index
70 the subject matter of the body of the
same, and That the ordinance was void for
the reason that il contained more than
one subject Mr.. Wiley said that under
the power TO regulate the city could not
prohibit the carrying on of q business;
that the tive terms were incongruous and
inconsistent and could not coexist. and
while the city might regulate the business
il could not impose such unreasonable
regulations as would amount 20 q prohibi-
ton, nor could ID expressly prohibit
Another point of Mr.. Wiley's was that
the license issued under the former ordi-
nance was full protection to the defend
ants; that the new ordinances did not
expressly revoke any license granted
under the old ordinance. or make any
provision for the return OF the money
collected under IL, for the privilege of
conducting the Peoples theater. The ex-
press language used in the old ordinance,
together with the enormous license fee
charged, made IL evident that the city had
used both the power OF regulation and
taxation. and therefore MFR. Wiley held,
the court would not presume any
such an act Of bad faith on the
part of the municipal authorities
as to hold that they int ended by the new
ordinances to revoke all outstanding
licenses issued under the old ordinance
without making any provision for the re-
funding of the money collected under it.
The obligation to do justice rested equally
upon the municipality and the individual,
and that the city could not deprive the
defendants at the same time of both the
use of the money and the privilege for
which Ii was paid.
Mr.. Scott in reply maintained that the
repeal of the ordinance under which the
$1,000 license was given was of itself re-
vocation of the license given under that
ordinance.
Judge Humes said that the ordinance in
question was a valid one. aud one which
the council had ample authority to enact,
but on the Gath of April last these defend
ants had paid 81. 600 TO the city to conduct
thsater adjoining to and connected with
a saloon. and that subsequent 10 that the
new ordinance was passed, and while this
new ordinance in n measure revoked all
licenses issued under the old ordinance an
nulled by the new one. yet the council
faled to provide for . return of the money
covering licenses SO cancelled, and failed
20 make tender or offer to this defend
ant of return OF the money he had paid
into the city treasury in accordance with
the then existing ordinance.
This eonstrains me TO believe, said
tend TO interfere with those who were con-
Quoting business under such heavy
license. Ii il true that the repeal Of the
ordinance under which the 81 900 license
WAS given was q revocation of the license.
but that Is in a measure true only in part,
where the revenue is small and merely ex-
acted TO restrain and regulate the business
IN question. bat when the city goes so far
as TO make the license = source of revenue
for the government OF the city then the
city should have included q provision in
the new ordinance covering an offer and
return of the unesrned license money.
The same presumption must hold good to-
ward the city that IL would toward an In
diyidaAl. namely. that the city means to
deal fairly and honestly towards its peo-
pie, and the fact that the city kept this
license money taken from the defendants
tor stated period leads ne 20 the conclu-
sion that they intended these defendants
should not be molested in their business
until the expiration of the time given
them by the term OF their license. Judg-
ment will issue for defendant"