| Show JUDGE MINER DISSENTS below is given the opinion of associate justice miner of the territorial supreme court in the cuse case of E J perrey vs salt lake city I 1 am unable to fully concur with the majority maio rity of the court in this thia case the relator appears to have complied with all the requirements of the statutes and ordinances and it cannot be claimed that the place lace at which he proposes too to carry on le the business ts is within the prohibition hibi tion of the statute or or ordinances dinane am the question abrines ar rises rines can the city council Counci lt under the power to regulate conferred by the charter impose additional restrictions if so how is that power to be exercised must it be by ordinance di ai nance so that the requirements prescribed bed whatever they may be will operate uniformly upon all alike under the same precluding partiality and cavon favoritism am or may the e council n notwithstanding th standing the compliance by the aepli applicant with all the provisions provision of the statu statutes and ordinances of the city upon the subject arbitrarily 1 grantor grant or refuse each par particular doa license ai as the same to is applied for and that too without giving any reason tor lor its action it seems to me the regulation should properly be by an ordinance if the statute conferred upon the council an any such absolute power then as re gators counsel contend are they admirably calculated to enable the members of the city council to reward their friends and punish their enemies but they furnish no safeguards for honesty of official action some rome members may vote against the application because in their honest judgment it would bo be detrimental to the best beat interests of the city to grant it another because he believes there are already saloons too many another because the applicant is a personal enemy of his another because he is not a member of his religious religions or political faith another because he doean doesn t think it right to sell liquor or license a wrong another because he wants to prohibit the sale thus a bare majority may be secured against the issuance of a license to one man and grant it to another it is claimed that first in this case seven councilmen coun oilmen voted forand for and seven against the petition them the mayor or giving the casting vote against it aither neither the council as a body nor any individual member thereof voting against the application gave or could be induced to give any reason for his vote or action and why this license is refused this court is still in ignorance except by the return which gives no reason for individual or corporate action the sale of liquor has always been a lawful business in this city it has never been prohibited by statute and the council never had bad the power to prohibit it by the charter of 1860 it had power to license regulate and restrain it see compiled laws 1876 pp ap section 54 and so it remained until january 20 1882 when the charter was amended by the amendment power was given to the city council to license tax and regulate the power to restrain being omitted this leaves no power to prohibit see laws 1882 p 24 2 the defense rests entirely upon the supposed right of the council in its discretion to grant or withhold license as it may see fit all men are equal before the law and if one man on complying with the statutory provisions may be licensed to engage in the business of selling liquors every other man in like condition on complying with the conditions imposed by law has an equal right to a similar license legislation in a free republican form of government should mete out equal rights to all law abiding citizens and it is alike against the spirit and form of our government and institutions to grant any special privileges to one individual and deny it to another who stands on equal footing with himself and this in my judgment cannot be accomplished under the guise of discretion the discretion vested by the legislature in the city council to is not an arbitrary power power to be exercised as the caprice or prejudices of that body may dictate but a legal discretion whereby the council is to determine whether or not the applicant has substantially complied with the provisions or of law the common council of a city must be governed by the same rules of law in their action upon the granting of these licenses as other bodies who are called upon by statute to pasy pass upon the qualifications of others to engage in any business or calling requiring special conditions preliminary to it exercise and they are bound in all cases to act fairly an and to treat e each ac h SP application li cation upon its own merits marita t impartially m parmy in the present case it seems there is one saloon in in the neighborhood alread already licensed and the common council think it sufficient for the needs of the neighborhood bo if tills this reasoning was sound the common council might in their discretion grant to any favored individual an exclusive monopoly of the business in any neighborhood or even in the entire city could a more fruitful field of favoritism be possibly devised it is certainly not in accordance with my views as to equality before the law that the discretion vested in the common council is not an arbitrary power but a legal discretion to be exercised equally towards all in like condition I 1 might oi ei e numberless authorities I 1 call attention however to ex parte candee 48 ala state vs lafayette fayette IA co 41 mo miser vs supervisor 26 mich amperse vs kalamazoo Kata mazoo 59 mich 78 potter vs homer 69 mich 8 canones vs mound city HI 1111 61 ind 98 11 am A eng enoy ency of law it is true that the charter of the city allows the council power to license regulate and tax this business which is great greater er authority than merely to ap approve rove clunen or r reject act the bonds but the council has not decided decided that the place or neighborhood was improper wherein to carry on the traffic nor that the relator was disqualified in any manner but they merely said in effect that in that neighborhood one man may engage in in the business but another may not this his is not a question of prohibiting the traffic in that locality but of prohibiting a particular individual against whom no disqualification is alleged and who has complied with the law from engaging in the business and at the same time permitting another under no worse legal circumstances to do so this cannot in my view be deemed within tle the discretionary power of the council 1 I think the council had no right to withhold the license and that the mandamus should issue as prayed |
