The Salt Lake herald-Republican. [volume] (Salt Lake City, Utah) 1909-1918, 1910-09-18

the commissioners TO issue license
upon conditions set forth in the allega-
tons OF the complaint that the plain
tiff had filed a petition or application
with the county clerk for a license in
which the place proposed to sell intOXi-
eating liquors az retail was designated,
and had presented proper bond with
good and sufficient sureties- And we
may again say. as was said by the
court in Barnes vs.. Commissioners
supra. the judgment of the court is
based entirely upon the theory that
after finding that the applicant Is a.
Fit person and that the building Is suit
able. and the other recited facts. the
commissioners have no discretion left
in the matter This is an error. for the
statute expressly provides that even
though these facts are found the COM
missioners NAV grant license. and not
that they must do So" Our statute
merely authorized" the county com
missioners TO grant licenses to sell in
toxicating liquors. IL does not In ex-
press terms require or command them
10 do so. The use Of the word author
tied" in such a statute IS permissive.
not mandatory.
Theatrical Licenses.
In constituting a statute authorizing
and empowering the mayor to grant
theatrical licenses, the New York court,
in the case Of People VS.. Grant, II y.
THE rule undoubtedly is that where
public bodies or officers are empow-
cred TO do that which the public in
tnreStE require 10 ne nOnts anu Aht-
uuate means are placed at their dis
posal. the proper execution Of the
power may be insisted upon. though
that statute eO1ferTing It Is 8 only per
| II may be asked. should this construc-
tion be given to the act under con-
sideration7 What public interest de-
/ mands that the mayor should he re-
quired under all circumstances TO ac-
cept the fee and grant the license2 II
/ seems to me that II Is quite the other
way. The public good clearly requires
that the permissive words in question
! should be read in the natural and or
| binary sense"
Such ruling was later approved by
the same court in the case OF People
| vs.. Murphy, supra.
| Even though It may be said that I'M
| der the statute a duty is implied 10
/ license someone. yet there IS nothing
| in the statute which can properly be
| construed as imposing a legal duty
| 10 license any particular person And
| certainly no duty r. imposed upon the
| commissioners to grant a license with
| I'm the range Of their power to all who
may apply and show qualifications
| requisite for the issuing OF a license.
II may again be observed, as was said
| by the court in the case Of Barnes vs..
Commissioners. supra. that while
| their discretion Is not an arbitrary
one. this IS far from proving that the
! courts can by writ of mandamus cOerce
| the commissioners in exercising that
| discretion I'm favor Of any particular
/
the case OF Attorney General vs.. Jus
tees. decides anything, 81 certainly de-
cides that mandamus will not be is
| sued for the purpose OF compelling the
| body invested with the discretion OF
| granting or refusing a license TO is
sue a license TO a person whose appli-
cation has beer rejected by them. In
that case the justices refused the ap-
plication upon the single ground that
their power TO do so was absolute. No
| stronger case for mandamus. II one
can issue in any case. could have been
presented. and yet the court adjudged
that because this Is not a case for a
mandamus. the judgment OF the court
must be reversed. and the motion for
a peremptory mandamus is refused -
Legislature Prescribes.
| The legislature saw fit not to pre-
scribe the conditions upon which the
| commissioners were required TO grant
liquor licenses. Should the courts. by
mandamus. compel or coerce them TO
do so upon certain assumed or exist
what the legislature itself saw ut not
TO do. No one has an unqualified or
inherent right to carry on the bust
ness OF selling Intoxicating liquors al
which he may ask to be enforced. MOI
can IL be said that 20 concerns or pro-
notes the public interests for anyone
90 exercise II. EEK pare Wilmington
supra: Malmo's Appeal. supra-) And
| as said by the court in the case OF
state eX rel VI. stiff, supra. the busi-
1
/ cannot be likened TO the ordinary
D callings Of life: that e. IS mere privi-
, lege TO be granted or withheld at the
! exclusive discretion OF the body en-
"A license to plaintiff therefore did not
! unlawfulIy preclude him from the en-
! toyment Of a right to which he was
, entitled.
As already observed. when an appli-
, cation is made to the county commits
: sioners for license. they may not re-
fuse TO examine or consider II. or
, without examination or cOnsidera ton
Z n rbitrarily or capriciously repeat 50
When the application is properly made
. in conformity with the statute. 10 IA
= their legal duty to examine and con
! slider II. TO make proper inquiry con
. corning IL. and to reach decision OF
. determination as the result or outcome
Z of such examination. consideration an'
Q inquiry. When they have done tina
- they have discharged their officia
y duty. so far as the courts have an,
n power to control them I'm the premises
s n. the result OF such a determine
Z tiOn. they reach a conclusion to gran
e or refuse n license to an applicant
y they are not answera bic to the court
70 for their conduct and discharge o
g. duty. but to the people who Conferrel
:. the power upon them to regulate ant
y | control the liquor traffic and ClOtnv
e them with the discretion to grant o
q refuse liquor licenses. It is only upo'
e averments and proof that they arbltrar
= lily and CapriciOusly disapDroved an
r rejected an application without exam
- inatiOn. consideration and inquiry. ina
y the courts may interfere. and then no
!, to direct them how to act or to decid
the matter. or 20 compel or coerC
~ them to issue or refuse a license 2
a any particular person upon certain as
> sumed or existing conditions.
lie Not Forced 10 Issue.
We are OF the opinion that under tn
statute. and upon the facts alleged /
rs the complaint. il is not. made to appes
g that a plain. legal duty was impose
IN upon the commissioners to issue a u
~ cense to the plaintiff upon his applies
In tion. or that their refusal to do SO ur
~ lawfully precluded him from enioyiu
m a right to which he was entitled. an
IN therefore the court erred in overruliu
p the demurrer.
ia For additional reasons we are ais
ne Of the opinion that the court erred
3. rendering judgment on the pleading