| Show ige THE RULINGS OF JUDGE mckean TERRITORY OP OF UTAH THIRD DISTRICT COURT J the people ac vs mansfield atchison I 1 habeas steel pape arshag I 1 corpus hanneck Han ran neek alder aider and aud june capit J 1873 the defendants applied to the city council of salt lake city for lice ilce use w to sell spirituous and fer rp ir irita ltd m d liquors and tendered a fee of per quarter year L ean ordinanceS per quarter was demanded this the defendants refused to pay and proceeded to sell liquor without license for this they have been arrested on ants issued by a justice of the r f e they apply to this court to is Isch charged changed argea on habeas corpus on alleged ground that the ardi inee ince in question is void 0 F strickland and J R mcbride for the petitioners petition ers E S hoge for foi people mckean C J the city council have authority to license tax regulate suppress or prohibit billiard ales ules tables ten pin alleys ac see ee city charter sec see 22 also to grant and issue licenses and direct the manner of issuing and registering thereof and the fees to be paid see city charter sec see 41 also to license tax and regulate merchants and retailers auctioneers tion tio cers cens distillers brewers brokers pawnbrokers pawn brokers and money changers and to impose duties upon the sale of goods at auction see city charter sec see 42 also to license regulate or restrain the manufacturers sellers or vendors of spirituous and fermented liquors tavern keepers dram or tippling shop keepers ac see C city ky charter sec see 24 tile the power to license and the power to tax are different powers the latter is not given in sec see 24 of the city charter the city council also have power to make and execute ordinances din ances for the tile peace good order regulation convenience and cleanliness of the city and for the health lie lle alth aith safety and happiness of the inhabitants thereof see city charter sec see 70 this provision does not enlarge the tiie particular powers specifically speciale ii conferred by the other sections already cited see dillons municipal corporations sec see A tax unlike a license li I 1 cense must be enforced by the collector see city charter see sec 67 the courts cannot dictate to congress nor to the legislature what laws nor to the city council what ordinances they shall enact but the courts wb when en the questions arise must pass upon the constitute constitutionality ol 01 of the laws and the reasonableness of the ordinances that have lave been enacted by those bodies see dillons dil Bil lons ions municipal corporations secs becs and the LI legislature slature fixed no sum for license Is the amount prescribed by the ordinance unreasonable have the city council converted or perverted the license system into a system of taxation concerning useful trades and employments ploy ments a distinction is to be observed between the power to license and the power to tax in such cases the license cannot be used as a moge mode mode of taxation with a view to revenue but a reasonable fee for the license and the tile labor attending its issue may be charged see dil billens Bil lons ions 11 corp see sec buethe but the traffic in intoxicating I 1 liquors bors to be used as beverages although in it utah as in most of the states and territories a lawful business is nevertheless regarded here and everywhere ever evec where as a business liable to many abuses and experience shows that it is fraught with great evils to society I 1 am of opinion teana a board of excise may rightfully charge more for a liquor license than barely a fee for the license 1 I and the labor attending its issue so trifling a charge would im numerous almost implications for licenses licences licen ces and A tend greatly to extend business while the license anted is permissive it may the fee charged for it labe be made partially restrictive in its operation I 1 think that sections 24 and 41 of the city charter will bear this construction st and I 1 deem it right upon general I 1 principles if I 1 ri rightly g atly un understand ferstand len ler stand them as cited by dil A 1 i the supreme courts of wisconsin mi and iowa have substantially held this doctrine see dillons municipal corporations sec note 2 but whether those courts llave lave so held liela or not nut I 1 repeat that the tile doctrine seems to me to be right upon principle and bobea to be a just construction of the ter let me not be misunderstood the city council cannot arbitrarily and capriciously demand and enforce any sum of money that they may please for a license however exorbitant the ordinance fixing the charge for a license must be reasonable or the courts will declare it to be void the principles applicable to the license system must be rigidly adhered to if licenses are granted and neither taxation nor prohibition can be resorted to under the tile forms of a license very different dif dlf principles are involved in licensing taxing and prohibit prohibiting in and neither of tile clio last two two can be carried out under the forms of the first while it does not belong to courts to dictate in advance to legislative bodies yet the circumstances of this case make it proper to say that I 1 deem the sum of 50 per quarter or per year a smaller sum than the city council is bound to accept for a liquor license the restrictive principle upon which they may act even under the license system will justify them in charging more than that the charter grante granted db by the tiie legislature to the city is silent as to the sum that may be charged for a liquor license Is the sum of per quarter or 1800 per year an unreasonable charge does it pervert the license system into a s system s of taxation or does docs it become M prohibitory in its character while it preserves the forms of the license system under a charter similar to that of salt lake city in the particulars under consideration a corporation was held to be competent to enact an ordinance demanding as the fee for a retail license this would seem to have been the fee for a year see dillons municipal corporations section note 3 the town council of Cali call aba alabama under a charter resembling ours ouis passed an ordinance charging 1000 for a liquor license the supreme court of that state in ex parte burnott burnett 30 alabama held the ordinance to be prohibitory in its nature and void the court in that case add the question in this case is not relieved of its embarrassment barras by the fact that notwithstanding the price one retailer has submitted to the terms of the ordinance and has driven a prosperous business the ordinance still remains in its nature prohibitory Y these cases are cit ednot as necessarily controlling here but because they throw some light on the question under tinder consideration in construing the ordinances of a particular city the charter and the circumstances cum eum stances of such city must be kept steadily in view the ordinances of one city may not suit another seg sec dillons municipal corporations sec see the views of legislative bodie bodle bod lesof city councils and of courts elsewhere throughout the states and territories may enable us the tile better to answer the question whether the ordinance under consideration is or is not reasonable the court is not aware of any city in the republic where 1800 per year is charged fora liquor licence there are some cities where the liquor traffic is prohibited prohibited but it is believed that t there lere are none where such a fee is deemed at all compatible with the licence system to exact such a fee is an attempt to blend taxation prohibition and license into one system it cannot be done the ordinance under consideration is not authorized by the charter is unreasonable and therefore vold void void vold the petitioners petition ers must be discharged TERRITORY OF UTAH THIRD DISTRICT COURT J lawrence mann lannan hale and beachtol Blach tol plaintiffs vs salt lake city wells mayor ac and clinton justlee justice of the peace defendants MCK morean mckean eane eabe C J this is a bill in equity the plaintiffs are engaged in the sale of spirituous and fermented liquors liquor sin in salt lake city prosecutions have been commenced against some and are threatened against others of them for alleged violations of the city ordinance exacting the payment of per quarter guarter year for license to sell such liquors the ordinance provides for criminal prosecutions and for fine and imprisonment of 0 th those 0 se who shall bo be convicted the plaintiffs 1 allege that they offered to pay 50 per quarter year for license which was refused that the tiie demand for is illegal and the ordinance void they pray for the writ of injunction to restrain the defendants from further prosecuting them under said ordinance the defendants demur to the bill on n the grounds that the bill is is not signed by counsel this point is well taken see rule bule 24 S C equity rules storys E eq q PI sec 48 Mit fords PI 48 dan i eis els eps ch PI 3 mclean 5 cranch 2 edwards aig but but nut tiie tile tile tiie court while sustaining the demurrer in this particular has discretionary authority to permit the bill to be amended the defendants demur andly that the plain plaintiffs tiflis have not stated such a case as entitle them to any relief in equity the prosecutions provided for by the ordinance in question for the ino question alleged of fences of f tie the plaintiffs are criminal prosecutions no authorities ties were cited on the argument and I 1 am not aware of any that authorize a court to restrain criminal prosecutions by injunction in burnett Burnet fc vs craig 30 alabama the supreme court of alabama say we have no not t been able to find any principle or dr adjudged case which h justifies an injunction to stay a prosecution either criminal or quasi criminal or to rest restrain rhin a trespass to the person or personal property we think such stich a precedent would be an alarming stretch of equity jurisdiction although a court of equity cannot interfere to stay crini criminal inal inai proceedings yet if a person be maliciously prosecuted he ha hag his remedy at law or would have were ejust just laws enacted here if such laws do not exist the courts cannot be held responsible the petition for injunction must be denied |
