Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1905-02-15
The Contest Over fts Validity 10 Car.
ried to the District Court BY
George Cornell
ARGUMENTS ARE INTERESTING
Grounds Upon Which the Court 10
Asked - Hold T9Mt the ORR.
rance b Void.

give bond tn the sum of $2,0O0each,
conditioned that they will not violate
any of the ordinances regulating the
saloon business has at last reached the
district court, and in all probability
will be carried on to the supreme
court, as it is announced that, how
ever the district court may decide,
the losing party will take an appeal.
1t is not likely that decision will be-
reached before early next week, as
Judge Cheadle left for Helena Mon
day morning, and is not expected to-
return until the end of this week.
For Writ Of Mandate.
The matter came up before Judge
'Cheadle Friday morning upon an ap-
plication made by George Cornell for
a writ of mandate dircttng the city
clerk and city treasurer to issue him
"a saloonkeeper's license.
In his petition, the relator set out
that for the past q months he has
conducted saloon On Main street,
which has at all times been "a quiet
and orderly place; that at no time has
he infringed on any of the ordinances
OF the city
That on February 2, he rendered to
the city treasurer $150, the amount
eequired to be paid for a license for
six months, and later deposited to the
creult of the city with the First Ma
tiOnal bank $3.50, and after notifying
the city clerk of such deposit, demand
ed that a license be issued. to him;
that this demand was refused for the
sole reason that on Jan. 8, the city
council passed an ordinance requiring
saloon keepers to give bond in the
sum of $4,000 each, cDnultiOned that
the applicant would not violate any of
the ordinances of the city or law of
the state relating to the conduct of
saloons, and rrc"'Niting gambling
The relator claimed that it was beyond
the powers of the city council to en-
act such an ordinance, in that the
city can only regulate the liquor traf-
tic under the state laws, and that no
such bond can be legally required;
that this ordinance is invalid for the
reason that 1T clothes the city council
with arbitrary powers, and gives it
judicial powers not vested in it by the
laws of the state.
The relator further urged that the
bond ordinance is invalid because it
is Illegal and oppressive.
Upon all of these grounds, the re-
1atOr asked that upon the hearing, the
'cQprt declare the ordinance to be in
valid. and issue writ directing the
defendants to issue the license sought.
Mr.. Cornell was repl esented at the
hearing by Huntoon. WOrden & Smith,
while City Attorney De Kafb and Ru
'dOlf Won TDbel appeared for the city.
Motipn to Quash.
For the defendants, Messrs. De
Ka1b and WON TObel first put in a mo.
tium to quash the application, ON tie
grounds that from the affidavit, 1t did
not appear that the plaintiff was entit-
led to any relief by writ of mandate j;
that the facts set forth were iasafri-
ctent to authorize the issuance of 4
writ; that 1t nowhere appeared that
1t was the duty of the defendants or
either of them to issue . license to
the a6iant: that It vas nowhere shown
that the defendants constitute the
city council. the only b0uy having ati-
thOrity to Issue the license; that It
did not appear that the relator had
ever applied to the city council for a
license, or that he had .ue- offered a
bond such as was required by the ordi-
nance.
Argued in Court.
Mr.. De Kalb. in the opening argu.
ment for the city. contended that the
ordinance requiring a bond Of persons
engaged in the saloon business was
an entirely proper exercise of police
powers. The ordinance was designed
to regulate the business. and the re.
Quirement as to the bond was merely
one of the regulations. rhe purpose
for which the ordinance had been
passed had been accomplished, as
gambling in the saloons nad been stop.
ped. There was no intent to put any.
one out of business, but to properly
guard those businesses already estab.
1ished.
Contentious Of :eiator.
Mr.. Hunton, for the relator, said
the city had only such power as was
conferred upon it by law. and the pow
er exercised by it in this case had not
been conferred upon it. The city had
contravened the state law under
which it acted. The whole scheme
he said. was for the city 10 confer up
on itself the right to require a bond
and then to accept or reject the
bonds as it saw fit. In reality, he
contended. the ordinance created q
court out OF the city council to sit in
judgment and say who should and
who should not engage in a business
that the law recognized as legitimate
The ordnance also conferred the
right to impose a penalty of $4,000
for an offense that was q misdemean'
or. and for which the punishment, un
der the law. was $500. This extended
the Jurisdiction Of the council seven
times further than was ever intended
The bond was given AZ a condition
that the ordinances would not be VIC
lated. II any Of them were violated
the bond of $1,000 was to be forfeited
That. in reality. fixed fine Of 81.
900 for the oRense. II the city had
the right to prescribe this penalty
It had the right to go much further
and prescribe almost any penalty IN