Fergus County Democrat. [volume] (Lewistown, Mont.) 1904-1919, 1905-02-21

tne internal safety, health, good or
Ger, General intelligence, prosperity
ana welfare of the state or of it's sew
eral municipalities. There can be no
dou' { that each state has this power.
There is no dispute that the State of
Moi.tana might enact a statute re-
quiring such bond to be given as a
condition precedent of doing retail
liquor business. The state has not
done this directly. The only question
remaining is: Has it delegated its
authority in this matter to it's mu-
inequalities?
section 1900 of the Political Code,
as amended by an act of the Fifth leg
islative assembly, provides, among
other things, as follows:
subsection l. The city or town
council has power to make and pass
all bylaws, ordinances, orders and
resolutions not repugnant to the CON
stitution Of the United States or of
the State of Montana. or Of the pro-
visions OF this title, necessary for
the government or management of
the affairs Of city or town, for the
execution Of the powers vested in the
BODY corporate, and for carrying into
effect the provisions Of this title.
"Sub-division l6. TO license, tax
and regulate saloons x \
Under these and certain other
provisions the power of the munich
pality to tax and license saloons is
unquestionable. In a certain sense
the licensing and taxation of saloons
are regulation of the saloon. but
more than this is evidently intended
because Of the use Of the word "regu-
late" in addition to the words
"license" and "taX." The power of
regulation must then include more
than the mere power to license and
tax. In broad sense the power to
regulate anything includes all reason
able measures OF restriction and di-
rectlon which are not prohibitive.
The idea Of prohibition is inconsist-
ent with the idea of regulation. Any
ordinance prohibiting the retail liq-
uor traffic in any municipality in this
state would undoubtedly be repugnant
to the laws Of the state. Any reason
able regulation Of such traffic. how
ever, is, in the opinion of the court.
entirely consistent with the statutes
of the state.
"The only question before the court
for determination at this time is
whether the power to require rea-
sonable bond as condition precedent
to engaging in the retail liquor traffic
in Lewistown is conferred under sub
section 16 of section 1900 of the Polit-
ical Code, enabling cities and towns
to license, tax and regulate saloons
The court is of the opinion that this
power is so included. Unquestion-
ably the state might enact statute
of exactly the same effect as ordi-
nance No II Of the City of Lewistown.
If the state might do this, and has
not done it, is it possible to say that
such an ordinance is repugnant to or
inconsistent with the laws of the
state? The court holds that it is not.
1t is true that such ordinance, if at
tempted to be applied to the ordinary
avocations oft fthecommunity, couldnot
be upheld, for the reason that such
ayocatiOns would not be subject to
the police power Of the city or mu-
nicipality; but the decisions of great |
many years uniformly hold that the
regulation of the liquor traffic is
within the police power of a state, on
account of its known injurious tenden-
cies.
''There has been some discussion of
counsel relative to the details of the
ordinance and of the bond required |
Hereunder. The form and conditions
of the bond, however, are not before
the court for decision, nor is the ex-
tent to which the sureties on such
bond may be held liable before the
court at the present time. The sole
question is whether the city has
acted ultra wires in requiring the
said bond Of persons proposing to en-
gage in the retail liquor business.
The court believes that the city has
not exceeded its powers.
Theretcle, The petition to make
this writ peremptory is overruled.
&. X. CHEADLE,
Judge.
Bids Wanted.