Show THE VARIETY LICENSE all the judges were present jan 21 at a session of the territorial supreme court after the disposal of several matters which occupied nearly an hour the ewe case of perry fc co of the franklin avenue variety theatre was called on being an application to this court to grant an alternative writ 0 of mandamus compelling the council of salt lake city to show cause why a license should not be issued by them to the applicants to sell intoxicating liquors to patrons of their theatre judge powers and attorney dickson attended to represent perry co colonel merritt and united states district attorney varian appeared on behalf of the city authorities associated with them being assistant county attorney eichnor the statement of the applicant set forth that on the ath of january 1891 the said E J perry made application by petition to the city council for a license as a retail dealer to sell or otherwise dispose of spirituous vinous malt or other intoxicating liquors within salt lake city which petition w was signed and filed by the recorder said petition stated definitely the par nicular place at which said liquors liquor were to be sold and that the same game were to be dealt out at retail that said fold E J perry filed with said petition bond to salt lake city which was waa con dit lonal as follows that luring during the continuance of the term terin for which raid license should he granted ho he would keep an orderly and well regulated house that he would not allow gamb ling with cards dice or any ADY other device or implements used in gambling within his hia house outhouse yard or other promises premises under his hie control where such business was to be con ducted and that be would pay all damages fines and forfeitures which might he be adjudged against him under any of the provisions of an act of the governor and legislative assembly of the territory of utah that on the ath january the said E J perry paid into the city treasury of salt lake city the sum of for the license petitioned for that after the filing 0 isaid petition bond bodd and justification fi he caused such bond and petition to be presented to the city ivoun council at its regular meeting requesting them to grant the prayer of said petition but that body then and there refused to do so that at the time of presenting said petition he requested the city council in the event of a refusal to grant the license to inform him of the ground round thereof but this had been refused fused and a refusal was stil given answering the alternative writ of mandate heretofore directed to the defendant to show cause why the license prayed for by plaintiff should not be granted the facts relative to the application made in november 1890 by charles V F reynolds co for the theatre licen seare fully reviewed among other things it was wag expressly stipulated that the sale of intoxicating beverages would be deemed a serious objection thereto an assurance was given however that such liquors would not be retailed upon the theatre premises but plaintiff filled up and stocked one of the rooms in the basement as a place for carrying on the retail liquor business application for a license was made by him to defendant on 01 dec 80 1890 which was then refused the answer next sets forth the reasons for such refusal among others that the north east and south sides of the block on which this theatre is located are almost exclusively occupied by private families that the thirteenth dietric school of the city is hold held and conducted in the school building on second south street nearly opposite the opening to franklin avenue into said street and but a short distance from the theatre that immediately opposite the opening to franklin avenue and adjoining said school building on second south street is a place of religious worship of members of the church of jesus christ of latter day saints and that about half a block further east on the corner of second east street is the first presbyterian church said theatre the answer ULSA lr goes on in effect to is denominated denominate ted a variety theatre different plays and exhibitions are given there among others prize fights or contentions are permitted r and as defendant to is informed and believes the character of the performance nightly given is such although not unmoral or in decent as aa to attract audiences ava m posed almost entirely of men to the exclusion of ladies and children aej that the sale of intoxicating liquors anywhere on the premises during before or after the performances would result at times in disorder or worse therefore defendant alleges that he place stated in plaintiffs applications was and is unfit for the vending of e intoxicating liquors ot of any kind hind the defendant is advised by counsel and believes that the selling ot of spirituous liquors to any of the patrons of the theatre from the place in the basement of the building selected by plaintiff would be in violation of law and particularly of section of the compiled laws lassof of utah 1888 vol 2 pp ap for that reason defendant is not authorized to grant plaintiff a license that the laws of the territory prohibit any ring or prize fight yet as defendant was informed the said charles F reynolds co owners or lessees lessels of the entire premises did on the night of wednesday january 1891 permit a prize fight between one george lie be Bla blanche known as the marine and jim williams designated the champion of utah to take place at 11 that a ring caring was pitched a referee and seconds were chosen that the contest lasted for six rounds and fras was for a prize in money defendant avers upon its information and belief that exhibitions of the above kind would in the future be permitted in said theatre and therefore submits that this is a reason why it should not now grant the license prayed for that in all the premises the defendant in the exercise of its discretionary powers acted fairly and for the best In interests teresia and to preserve the morals peace good order and happiness of the people of the city and especially of the particular neighborhood in which the franklin avenue theatre is carried on hence defendant prays that teat the present application to the court be dismissed with costs when the case was called on attorney dickson intimated that he was prepared to argue the case on demurrer and after the reading of the defendants answer at length b by united states slates district attorney va varian it was decided to let the matter stand over until two other short cases had been disposed of in order to afford mr dickson an opportunity to file his demurrer upon the case coming up again about 1130 it was found quite impossible to proceed owing to the continued noise occasioned by the steam in the pi pipes pee of the apparatus used for heating the court toom room and after some talk of an adjournment journ ment it was finally decided that the sitting should be held in chamb ers era thence theace the judges an I 1 attorneys proceeded occupying a room adjoining the territorial library in the course of his bis opening argument attorney dickson said mid it was contended that the city council had bad the power in its discretion to AIL grant or refuse this license that power was now disputed and the purpose sought was to have the point determined ter mined by the supreme court his clients desired to test the validity of the answer of the defendants by demurrer there was a rood good deal contained in it which on the part of his bis clients he did not admit and a great deal that was irrelevant A great many things charged to be true were matters over which the applicant had no control and in which he took no part it would be admitted he understood for the purpose of argument that the sale of liquor charged against the applicant was made under a misapprehension he be believing that the license had been voted by the city council mr perry was not informed to the contrary indeed until his arrest when the further sale was at once stopped mr perry had nt not the least desire to show his bis contempt for the law by selling liquor without a license nothing was charged against his character counsel insisted that the legislature never intended to confer such absolute power 0 upon a city council as had ee been n exhibited in this instance there were seven votes given at the council meeting before which mr perrys application for fora a license ame came in its favor and seven a In on this tie the mayor gave ni his casting vote against the petition no lesions reasons were assigned for the refusal to grant the license although re quested attorney dickan said it would be seen from reading the petition and the return thereto that the applicant had bad complied with all the requirements of law jaw that the theatre was under the management of mr reynolds and that the applicant had nothing to do with that place that there was no connection between the theatre and the saloon it was given as a reason why the application should be refused that there were two churches within a block of the theatre but they were not on the same street the street by the way was not strictly a business street there being a theatre a saloon and stores already there the question was whether the city council Cou acil without giving any reason whatever could refuse an application for a liquor license in spite of the fact that the applicant had bad complied with every requirement of law the legislature never intended to confer upon the council any such power this application was refused the vote being a tie and the mayor major voting against it the mayor could not know what actuated the members of the council in voting against the application such a course would allow the council to give to its friends a mo nopo lyof of the business it was ccase a case of arbitrary and tyrannical discrimination which the law auld not countenance ten te nance anoe mr dickson closed by citing a number of authorities in support of his position an I 1 at the close of his argument it a greces reces was taken until 2 ox clock when the sitting was resumed in the afternoon col merritt city attorney opened for the defense after afler going over the points of the answer he remarked if the intention of the legislature I 1 was not to give the council the power to regulate and restrain the granting of licen licenses sm if they are not to say aay who shall and who shall not have a license why in heavens name they say the gates are open to all who may apply and put the grant ing of licenses in the hands bands of some clerk whose only duty shall be to issue the license without question mr merritt quoted from pennsylvania decisions and from california rulings in support of his bis position mr varian next addressed the court he contended that under the charter the council had a right to prohibit the sale of liquors in certain localities the council cannot grant a license to sell liquor in a bad house they must refuse this if they have the power to prohibit and deny in one place they have in another the council had declined to issue a license to the theatre until satisfied that no liquor was to be sold it was the fear that liquor would be dispensed to the patrons of the theatre that prompted this precautionary measure if they have a right to take away a license for disorderly conduct they have a right to deny a license primarily the lw states that no liquor shall be sold in the auditorium or lobby of anyplace any place of amusement in this case the council has a discretion which they cannot be forced to abandon if the council has no power to deny a license the legislative act on license compels every one of them to vote aye whether he wants to or not dot the speaker contended that even though the council had not gives given good reasons if they were presented at this time they were valid and binding and the court should so rule juige judge powers made the closing argument on the part of the plaintiff he said lie he dil dij not contend that the council had not the power to regulate the liquor traffic but that such regulation must be uniform A man could not be refused a license at the mere whim or caprice of the council while it was urged that it would be a bad thing to have a saloon so near to a church the fact remained there was already a saloon directly erectly opposite this theatre the account of a boxing match at the theatre is not material at all and the return was simply buncombe the law made it mandatory on the council to issue the licence in this case granting that the council had the power to regulate how was thit tha power to be exercised it must be by general ordinance so that it would apply to all alike the return admitted that there was no communication between the saloon and the theatre what was the difference whether a man came out of the theatre and went down in the basement and took a drink or walked a few steps across the alley to the saloon which the council atad licensed the answer was not an answer at all it did not show anywhere that the council had ever shown this court sufficient deference to consider its order the return was not even signed by any member of the council except mr scott the return should have been made by the body itself judge powers having concluded his bis argument the case was taken under advisement |