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

There Is no Inherent right in a citizen
20 sell intoxicating liduor by retail
10 Is not a privilege OF citizen or the
state or OF a citizen OF the United
with danger 10 the community. IL may,
as already said. be entirely prohibited,
or be permitted under such conditions
as will limit 20 the utmost It's evils
The manner and extent Of regulation
rest in the discretion Of the governing
authority That authority may vest in
such officers as II may deem proper
the power OF passing upon applications
for permission to carry II on and 70
issue license for that purpose"
And. as we have seen. by our statute
a wide discretionary power Is con-
ferred upon the board OF county COM
missioners in passing upon applca-
lions for licenses TO sell Intoxicating
liquors within their territorial 1uris-
diction- When an application Tor IL
cense is made to them. II unquestion-
ably is their duty TO consider II, to
make proper inquiry concerning II, and,
upon the responsibility OF their official
the duty OF the commissioners in the
premises to grant licenses is not inn
perative and mandatory. II Is discre-
tionary.
Discretion Of Board.
In state v. Board Of Commissioners,
so MINI. $40. the court said:
whether a license 20 sell tntoNt-
eating liquors shall be granted or re
board OF county commissioners in the
exercise Of which they act judicially
and not ministerially. and therefore
their action cannot be controlled or re-
viewed by mandamus.
And in State eN rel. HOWE V. Com
mon Council OF Mortified, - MINI. "a,
that court again said:
The provisions Of the charter vest
in the common council authority to
regulate and control the sale Of intoXi-
eating liquors within the city, and IN
D aMamMa oil
is clothed with discretionary powers.
the exercise OF which cannot be con-
trolled by the courts. The power to
regulate and control includes the pow
| er to do all that Is deemed. in the
| judgment OF the council. for the best
| interests Of the municipality and its
| Inhabitants. It necessarily confers the
power to refuse license, or TO limit
/ the number OF licenses 10 be granted.
when. In the judgment Of the council.
the welfare Of the city suggests such
action"
In stanley Y. Monnet. 20 Kas. EOS.
| the court said.
we think the motion to quash
must he sustained. The probate judge
I tiouary power in granting permits tto
| sell intoxicating liquors by druEEists).
/ and the duty to do so is not peremp-
! tory and absolute. II IS not claimed
| that the probate judge refused 20 re-
| ceivc or consider the application pre-
/ scented. lie has heard the application.
l ana determined not to grant the same.
| lie refuses 10 give his reason therefor.
but that IS immaterial: he has acted
In RamaEnano Y. Crook. s. Ala 226.
D the court said.
| In Dunbar v. Frazer. IS Ala. 52S
| e. was held, that the Judge OF probate,
I in granting or refusing a license GO
retail spirituous liquors under the
/ act OF February Il. 1855. acts In n
quasi-judicial capacity. whether the
l application IS or is not contested. and
that his action cannot be reviewed OF
controlled by mandamus. A mandamus
viii be issued 20 compel judicial Of
/ ficer TO act. when IL IS his duty. and
/ he refuses. but not 70 direct him how
20 act. In the present case. the Judge
OF probate acted: and the sufficiency
OF the reasons for his action cannot be
revie wed by msndamus. though they
may be erroneous"
other Authorities.
These views are also supported by
the following cases:
Ex parte. Wilmington. 80 Ark 3g4
state V. stiff. 10f 40. App. SIS:
Devin V. Belt. 20 Nd. 1852.
Eve V. Simon. IS Ca. 100:
Malmo's Appeal. - Conn.
Batters v. Cummings, 40 Conn. 479:
state Y. Bunnell. t19 Ind. 494.
Swift " People. 81 III. App. $50.
Barnes G. County Commissioners. ~
y. e. %.
People vs.. Murphy. 70 y. Y. s7a.
Burke Va. County Commissioners. II
5. -. 100
NFEhsAhtnu "AcNeu pom
IL IS not averred here that the com
GnissIOners refused TO examine or con
slider. or act upon. the application. n
the contrary u is averred in the corn
plant that the application was acte,
upon by said defendants In due anl
regular meeting Of said board OF count,
commissioners. and by them refuses
ana not granted" These cases 10
large extent. proceed upon the theor
I that the retail traffic OF Intoxicating
liquors is one which confeSsedIv re
, Quircs TO be kept I'm prudent hands. an
/, that where the legislature conferre
! the power upon authorities 10 regulate
; restrict and control the traffic. and IN
b power. In passing upon applications. Q
| grant or refuse licenses in their dis
erection underlined and unprescribed b
the legislature. the responsibility 10
r the proper conduct Of such bushes
rests with such authorities; and. in tn
language Of the court in eN part
{ Wilmington. supra. II they do not &C
, with a view TO the public interests. tn
? legislature may take away their pow
er and discretion. or the people ma
elect more satisfactory officers upo
whom such power and discretion ha
been conferred; and in the language q
the federal court I'm the case OF In II
Hoover. 30 Fed. 81. that the state ma
authorize the sale OF spirituOus liQ
, ours on such terms. by such person.
= and at such places. as 10 thinks prOpe
= | and IL "a may do this directly. ma
10 not delegate 20 otherS the eNercis
: I OF the power IL has simply dele ga te
a portion OF fits sovereignty TO IN
- county commissioners Of Chatham Cour
= | ~. The commissioner. in the eXercis
y I Of that sovereignty. refuse a license
e the petitioners. The discretion mu.
]. | rest somewhere. The state might haV
- | exercised a.. II intrusts its discretio
e / TO the board OF county commissioner
i and. as 7 have said. by the terms
: the grant. this discretion is final ar
n not renewable. This power is inseI
arabic from ..e sovereignty OF a
. state"
;. No Arbitrary Act.
We are not unmindful Of the rulinI
q made that even though a licensir
- board may be vested with n discretiC
q In the matter OF granting licenses.
n cannot act arbitrarily or capriciouslv
s refusing TO issue license. and TN
To- where 70 IS made TO appear that 3
L applicant IS entitled 90 license upt
o a compliance with the statutory n
"a quirements. and the action Of TIE boal
= is OF such a character. Issuance Of a
: license may be compelled by mandarin
D