Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1905-02-22
UPHOLDS THE
ORDINANCE
Judge CheadIe Decides That City Has
Right to Require Saloon Keep
ers to Give Bond.
THERE WILL BE NO APPEAL.
George Cornell Gives the Required
Bond and Announces that He
Has Dropped the Contest.

keepers to give bond '- the sum of
$4,000 each is valid, and thus ends
cause celebre. so far as the local
courts are concerned.
e action was broupht by George
Cornell few days ago, and on the
hearing, City Attorney DeKalb and
huuolph Won Tobel appeared for the
municipality, while Huntoon. Worden
& smith represented Cornell Judge
Cheadle took the matter under adj
visement for several days. and on
Thursday announced the following de-
cision
Judge CheadIe's Decision.
This is a proceeding for mandamus
to the city treasurer to compel him
to issue retail liquor license to the
relator.
1t appears that the relator duly ten
dered to the city treasurer the sum
of $3.50, and demanded city Ii
cense for the retail of intoxicating
liquors. The treasurer refused to issue
the said license for the reason that
the relatOr had not rendered the bond
required by city ordinance No. II of
the city of Lewistown. Upon the re-
fusal of the city treasurer to issue the
said license, the relator brought this
proceeding.
1t is urged on behalf of relator that
the city council acted ultra wires in
quiring bond in the sum of $4,000, to
be approved by the city council and
conditioned that the license would not
do or suffer certain illegal acts upon
the premises where this retail liquor
business is conducted. 1t is further
urged that the requirement of this
bond Is obnoxious in that it makes
possible double penalty for any vio-
latlon of law included in the condition
| OF such bond; tnat it is a restraint
| upon the retail liquor trade and an
unjust discrimination; also that the
said ordinance is repugnant to and
inconsistent with the laws of the state
of Montana.
The court has been unable to find
any adjudicated case on all fours
with this one. There is long line
of decisions uphOlding the validity OF
snch an ordinance as No. II of the
city of Lewistown, but all of them,
so far as can be discovered, in states
where the stautes authorize the re.
quirement of such bond as condi-
| tlon precedent to entering upon the
retail liquor business. The court is
| unable to find any such adjudication
| in any state where the statutes do
not provide for such bond.
Police Powers Of State.
In all matters of regulation of bus
| mess there Is broad distinction be-
tween the retail liquor business and
| almost all other lines of business.
| The regulation of the retail liquor
traHIc falls within the police power
of the state. Every state has the
right and the duty, either acting di-
rectly through statute, or indirectly
through it's municipalities to restrict
and regulate all manner of business
| and other matters which tend to in
jure the internal safety, health, good
| order, general intelligence, prosperity
and welfare of the state or of its sew
eral municipalities. There can be no
doubt that each state has this DOW
er. There is no dispute that the state
of Montana might enact statute re-
quiring such a bond to be given as a
condition precedent of doing "A retail
liquor business. The state has not
done this directly. The only question
remaining is: Has il delegated its
authority in this matter to its munich.
palities?
Section 480O 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 af-
fairs OF city or town, for the execu-
ton OF the powers vested in the body
corporate, and for carrying into ef-
feet the provisions of this title"
"Sub-division 16. To license, tax
and regulate saloons"
Powers Of Municipality.
Under these and certain other pro-
visions, the power of the municipality
to tax and license saloons is unques-
tionable. In a certain sense the H.
censing and taxation of saloons are
regulation of the saloon, but more
than this is evidently intended be.
cause of the use of the word "regu-
late" in addition to the words eli
cense' and tax" The power of reg
ulation must then include more than
| the mere power to license and tax.
In broad sense. the power to reg
ulate anything includes all reasonable
measures of restriction and direction
which are not prohibitive The idea
of prohibition is inconsistent with the
idea of regulation. Any ordinance
prohibiting the retail liquor traffic in
any municipality in this state would
undoubtedly be repugnant to the laws
of the state. Any reasonable regula.
tSn of such traffic, however, is, in the
opinion of the court, entirely consist
ent with the statutes of the state.
The only Question.
The only question before the court
for determination at this time is
whether the power to require a reason.
able bond as condition precedent to
engaging In retail liquor traffic in Lew.