The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1910-09-18
County Commissioners May
Grant or Refuse Applications,
as Deemed Wise.
CANNOT BE COMPELLED
BY MANDAMUS ACTIONS
Opinion of Supreme Court Will
Have Far-Reaching Effect
i'm Utah.

County commissioners may after due
consideration and proper inquiry and ex-
animation. deny applications for liquor H.
censes without interference from or be-
ing answcrable to the courts In other
words, mandamus proceedings will not lie
10 compel boards of county commission
ers TO grant liquor licenses
such is the effect OF an opinion handed
down Saturday by the supreme court In
the matter of the petition OF D. A. Smyth
against the commissioners OF Morgan
county. T. L. Buffers. w. E. CrIddle and
George r. Carter appellants, for a writ
Oh mandate TO compel them to grant him.
retaii liquor license. The opinion is
written by Chief Justice D. n. Straup
and both associates concur.
The opinion. which lays down rule for
a mooted question In this state will be
OF tar.reaching effect. for, while the pow
Srs a OF town boards and city councils to
deny liquor licenses are not outlined in
the opinion. for the reason that this
issue was moi raised in the appeal to the
supreme court the effect OF the opinion
Is the same as to these. inasmuch as
boards of county commissioners, town
boards and city councils get their pri-
mary right to grant or deny liquor H.
statutes
The courts may interfere only when
commissioners arbitrarily and capricious-
~ oeny applications for liquor licenses.
the supreme court broadly holds and
then not TO direct them how TO act OF 10
decide the matter, or TO compel or CO.
cree Them to issue or refuse the license,
but only to compel them to consider the
application fully and fairly
History of Case.
Smyth applied to the district court OF
Morgan county for writ of mandate 10
compel the county commissioners 10 re-
new his license to sell Intoxicating LIQUOR
at Devils Slide. His petition for the re-
neWal was In proper order and hc set
OUT. was accompanied by the proper
bond and agreement that he would con-
Duct an orderly place and would not al
10" gambling, but in spite of this the
newah This refusal, Smyth said. was
not based upon any defect in his appli-
cation, nor upon any other defect. but
was based solely ON the grounds that the
commissioners did not desire TO grant
any liquor licenses,
Upon this showing the court issued an
alternative writ or mandate commanding
the commissioners 10 grant the aDplica-
tion or show cause why they did not do
so. The commissioners demurred and
moved that the writ be quashed but both
demurrer and motion were dismissed
Then the commissioners answered. set
tlng up that II was against the interests
OF the county and the wishes OF the peo-
pie to permit the sale of Intoxicating
outside incorporated cities. and that
majority of the residents and taxpayers
OF the precinct in which Smyth desired
permission to sell liquor were opposed
10 the granting of the license. The COM
missloners also set up that Smyth, under
his first license, had frequently violated
the law by selling liquor on Sunday and
permitting gambling on the premises.
After taking the case under advise
ment the court issued a pcremptory writ
of mandate commanding the commission
q n In ,s-Sit
TO the plaintiff upon the ground that they
are opposed TO the grantang OF any liquor
license In said county"
Commissioners Appeal.
The commissioners appealed and the ap-
peal involved the question of whether
the determination OF the commissioners
m refusing TO grant SUyth renewal can
be controlled by mandamus. and If SO
whether the Judgments entered by the
lower court on the pleadings and findings
were justified
After setting out the nature and OBJ
cct OF writs OF mandate. the opinion
says that TO be entitled TO such a writ
against the commissioners it was incum-
bent on Smyth 10 show that the granting
)i th9 license was specifically cnjoned
Jy law upon the commissioners as d duty
resulting from their office as commits
'ioners, or that their refusal unawfuly
precluded him from the enjoyment OF II
tight 10 which he was entitled. Here
he court quotes from section 1242. Com
'or the manufacture or sale of intoXicat-
ne liquors. as follows
mo person shall manufacture, sell.
,arter. deal out, or otherwise dispose OF
my spirituous. vinous. malt or other
intoxicating liquors, without first obtain
ng from the board OF county commis-
,ionerS OF the county, or city council OF
he city. or board OF trustees OF the town
II which he intends To do business,
censc therefor. as hereinafter provided
Then the court quotes from section 1913
II the Compiled Laws OF 1907 authorl2-
ng the granting OF applications for sucE
licenses, as follows:
''fhc boards OF county commissioners
, their respective counties. and the city
ouncils in their respective cities, and the
cards OF trustees ] in their respective
ceuses. contemplated In section 1912.
o any person over the age OF u years.
pom an application being made for such
cense. by petition signed by the appli-
ant and filed with the county clerk. city
ccordcr, or town clerk, as the case may
q Said petition must state definitely
he particular place at which any OF the
quors named In section 1872 are in
,ndcd 10 be manufacturer. sold. bartereii:
calt ont, or otherwise disposed Of, and
'hcthcr The applicant intends TO carry
n Il retail or wholesale business
Section lS13 proyiding that t. aRPead nqssd
,r good cause. I'm the discretion of the
oard OF trustees OF the town, the city
ounty commissioners of the county also
quoted.
It was In effect contended by Smyth
snsc in conformity with the statute and
,owcd himself 10 possess the qualfl-
itions requisite FOR tho issuing OF II IL
snsc under tho law II became the inn
prativc duty of the commissioners TO
amt the application. and that they could
ot lawfully. in the exercise OF any other
secretion, refuse II,
Not Bound to Grant License.
1--WE do not think" says the supreme
art "that under the statute the COM
issloners are bound TO issue "A license
Continued IN ppoa Trn