Fergus County Democrat. [volume] (Lewistown, Mont.) 1904-1919, 1905-02-21
Judge CheddIe Refuses to Issue Per.
emptory Writ of Mandamus and
COrneill Puts Up a Bond.
FULL TEXT OF The DECISION.
Holds That the Bond Ordinance Does
not Conflict With the Statutes
of the State.

Judge Cheadle last Thursday morn
ing rendered his decision in the case
OF CORNELL vs.. Albert Pfaus as city
clerk and Gordon o. Shafer as city
treasurer of Lewistown. The decision
recognizes the right of the city to i'm
pose bond for the regulation of sal
oons and denies to CORNELL the writ
OF mandamus for which he had ap-
piled.
The case is one of more than ordi-
nary interest to the people of this
city. Itwas the outgrowth Of an ordi-
nance passed the last of January by
the city council, the provisions of
which require that every saloon keeper
in the city should give to the city a
bond in the sum of $1,000 that they
would not violate the city or state
laws. The saloon men generally op-
posed the ordinance but all but
George CORNELL, who has always con-
Quoted quiet and orderly place on
Main street, complied with the ordi-
nance.
| CORNELL refused to file bond and
when he made an application for re-
newal Of his liquor license, the city
treasurer, Gordon o. Shafer refused to
issue the same to him. He thereupon
filed an application for writ OF man
date directed against the city treas
urer and city clerk compelling them
to issue license. The matter was
argued before the court last Saturday
morning by City Attorney DeKalb
and Il. Won Tobel for the city and
John c.. Huntoon and w. H. Smith
on behalf OF the relator. Judge
Cheadle took the matter under advise
ment until Thursday morning when
he delivered the following decision:
This is proceeding Of mandamus
to the city treasurer to compel him to
issue retail liquor license to the re-
lator.
ut appears that the relator duly
rendered to the city treasurer the
sum of $4,000, and demanded city
license 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.
Il of the City of Lewistown. Upon
the refusal of the city treasurer to
issue the said license, the relator
brought this proceeding.
cit is urged on behalf Of relator
that the city council acted ultra wires
in the enactment of the ordinance re-
quiring bond in the sum of S2,OOO.O 90.
to be approved by the city council,
and conditioned that the licensee
would not do or suffer certain illegal
acts upon the premises where his re-
tail business is conducted. 1t is fur
ther urged that the requirement of
this bond is obnoxious in that it
makes possible double penalty for
any violation of law included in the
condition of such bond; that it is
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 de-
cisions upholding the validity of such
an ordinance as No. II of the City of
Lewistown, but all of them, so far as
can be discovered, in states where the |
statutes authorize the requirement of
such bond as condition precedent to
entering upon the retail liquor busi-
ness. The court is unable to find any |
such adjudication in any state where
the statutes do not provide for such
bond.
.'ln all matters Of regulation of busi-
ness there is broad distinction be-
tween the retail business man and al |
most all other lines of business. The
regulation of the retail liquor traffic
1alls within the police power of the
state. Every state has the right and
the duty, either acting directly
through statute, or indirectly through
It's municipalities, to restrict and
repn1atp all rooppor IS l,,r;,o,. ,pd