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The number of remonstrants considerably exceeds that of the petitioners. This is all very well so far as it is addressed to the discretion of the court. The result is not conclusive upon him. Otherwise, we would have local option without the sanction of an act of assembly, yet enforced by the judiciary. In the case in hand, the learned judge has undoubtedly attached great weight to the remonstrances. He does not appear, however, to have wholly substituted the judgment of the remonstrants for his own. The most that can be said is that they were of sufficient weight to convince him that the license was not a matter of public necessity. In the view we take of the case, this was not an abuse of discretion. We are not called upon to say whether it was exercised wisely.

Mandamus refused.

In re GROSS' LICENSE.

(Supreme Court of Pennsylvania, 1894. 161 Pa. 344, 29 Atl. 25.) Appeal from court of quarter sessions, Luzerne county. Application by Herman Gross for wholesale liquor license. From a decree refusing it, applicant appeals. Affirmed.

DEAN, J. This is the decree from which is brought this appeal: "Now, March 1, 1894, after hearing, sureties on the within bond are approved, and the license, as prayed for, is refused." Counsel for appellant, to sustain his appeal, argues that as there was no denial of the necessity for the license, and no allegation that the applicant was not a fit person, and as it appeared from the decree the bond and sureties were approved, the inference necessarily is that the refusal was not the exercise of discretion, but the result of arbitrary will.

Such inference is not warranted by the facts. The sixth section of the act of June 9, 1891 (P. L. 259), providing for licenses to wholesale dealers in liquors, says: "The court of quarter sessions shall hear petitions from residents of the county, in addition to that of the applicant, in favor of and remonstrance against the application for such license, and in all cases shall refuse the same whenever, in the opinion of said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public, or that the applicant or applicants is or are not fit persons to whom such licenses should be granted." This section must be read in connection with the second of the same act, which directs the court to fix, by rule or standing order, a time at which all applications for and objections to licenses. shall be heard by evidence, petition, remonstrance, or counsel. The two sections enjoin upon the court the duty of hearing and considering. If there be nothing on the records of the court but the averments in the petition, these, at the time fixed, must be heard and considered. The court may hear oral testimony or the arguments of counsel on either

side. It may, of its own knowledge of the unfitness of the applicant, or of his failure in other material particulars to meet the requirements of the law, refuse the application, just as it may, of its own knowledge, approve, for sufficiency, or reject, for insufficiency, the sureties on the bond. The exercise of judicial discretion by the court is commanded by the statute. This being so, how far this court will go in reviewing the decrees of the quarter sessions, notwithstanding repeated decisions, seems still to be in doubt. Therefore, we again say:

1. The discretion must be exercised in a lawful manner. The applicant has a right to be heard, and so have objectors. A decree without. hearing, or opportunity for hearing, at a time fixed by rule or standing order, as the law directs, would be manifestly illegal and on certiorari, would be set aside.

2. If the court has, in a lawful manner, performed the duty imposed upon it, it is not our business to inquire whether it has made a mistake in its conclusions of fact. Whether the same facts induce in our minds the same belief as in that of the court below, as to the character of the applicant, or other material averments, is wholly immaterial. It is the discretion of the court of quarter sessions, not ours, that the law requires.

3. A decree made arbitrarily, or in violation of law, it is our plain duty to set aside. For example, if a judge should refuse a license because, in his opinion, the law authorizing licenses is a bad law, or if he should grant all licenses because he believed the law wrong, as tending to confer a privilege on a special few, in either case there would be no exercise of judicial discretion. Both would be the mere despotic assertion of arbitrary will by one in power,-that sort of lawlessness which is least excusable, and excites most indignation.

4. If the record shows the decree was had after hearing at a time fixed by rule or standing order, the presumption is that the decree is judicial, and not arbitrary; and this presumption is not rebutted by an argument from evidence that the court ought to have reached a different conclusion. In the case before us the record shows the license was refused after hearing. The act is an official one, performed by a public officer in the exercise of the functions of his office. The presumption, in all such cases, is that the officer performed his duty according to law. He is not bound to set out legal reasons for his action. He is only bound to have them.

In Re Johnson's Appeal, 156 Pa. 322, 26 Atl. 1066, relied on by appellant, the decree showed no hearing, nor did the record anywhere indicate that the decree was founded on a hearing, or that any opportunity to be heard had been afforded the applicant. The decree was reversed, and the case sent back, that it might be heard and decided as the law directs. While, in these cases, the justices of the quarter sessions do not always set out on the record the reasons for their decrees, it is going very far to assume from that fact alone, as is done in FR.ADM.LAW.-6

the argument of this case, that they are made without lawful reasons. We can comprehend how a man's conscience may condemn as wrong a law of the land. But that sort of a conscience, so tender as to withhold approval of a law, yet which voluntarily takes an oath to administer it according to its true intent and meaning, and then deliberately violates it, is beyond our comprehension. We will not assume, without incontrovertible evidence, of record, that there is such an one. The decree is affirmed, and the appeal is dismissed, at cost of appellant,12

SECTION 10.-VALIDITY OF UNREGULATED DISCRETION

WILSON v. EUREKA CITY.

(Supreme Court of United States, 1899. 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603.)

In error to the Supreme Court of the state of Utah.

Section 12 of Ordinance No. 10 of Eureka City, Utah, provided as follows: "No person shall move any building or frame of any building, into or upon any of the public streets, lots or squares of the city, or cause the same to be upon, or otherwise to obstruct the free passage of the streets, without the written permission of the mayor, or president of the city council, or in their absence a councilor. A violation of this section shall on conviction, subject the offender to a fine of not to exceed twenty-five dollars."

The plaintiff in error was tried for a violation of the ordinance, in the justice's court of the city. He was convicted and sentenced to pay a fine of $25. He appealed to the district court of the First judicial district of the territory of Utah.

On the admission of Utah into the Union, the case was transferred to the Fifth district court of Juab county, and there tried on the 24th of October, 1896, by the court without a jury, by consent of the parties.

Section 12, supra, was offered and admitted in evidence. Plaintiff in error objected to it, on the ground that it was repugnant to section 1 of article 14 of the Constitution of the United States, in that it delegated an authority to the mayor of the city, or, in his absence, to a councilor.

There was also introduced in evidence an ordinance establishing fire limits within the city, providing that no wooden buildings should be erected within such limits except by the permission of the committee

12 See, also, In re Licenses, 4 Luz. Leg. Reg. (Pa.) 527 (1888). And see cases under mandamus, § 53.

on building, and providing further for the alteration and repair of wooden buildings already erected.

* *

The evidence showed that the plaintiff in error was the owner of a wooden building of the dimensions of 20 by 16 feet, which was used as a dwelling house. It was constructed prior to the enactment of the ordinances above mentioned. The evidence further showed that plaintiff in error applied to the mayor for permission to move the building along and across Main street in the city to another place within the fire limits. The mayor refused the permission, stating that, if the desire was to move it outside of the fire limits, permission would be granted. Notwithstanding the refusal, the plaintiff in error moved. the building, using blocks and tackle and rollers, and, in doing so, occupied the time between 11 a. m. and 3 p. m. At the place where the building stood originally, the street was 50 feet from the houses on one side to those on the other, part of the space being occupied by sidewalks, and the balance by the traveled highway. The distance of removal was 206 feet along and across Main street. Eureka City was and is a mining town, and had and has a population of about 2,000. It was admitted that the building was moved with reasonable diligence. The plaintiff in error was again convicted. From the judgment of conviction he appealed to the Supreme Court of the state, which court affirmed the judgment (15 Utah, 53, 48 Pac. 41; 15 Utah, 67, 48 Pac. 150, 62 Am. St. Rep. 904), and to the judgment of affirmance this writ of error is directed.

Eureka City has no special charter, but was incorporated under the general incorporation act of March 8, 1888, and among the powers conferred by it on city councils are the following:

"(10) To regulate the use of streets, alleys, avenues, sidewalks, cross walks, parks and public grounds.

"(11) To prevent and remove obstructions and encroachments upon the same."

The error assigned is that the ordinance is repugnant to the fourteenth amendment of the Constitution of the United States, because "thereby the citizen is deprived of his property without due process of law," and "the citizen is thereby denied the equal protection of the law."

Mr. Justice McKENNA, after stating the facts in the foregoing language, delivered the opinion of the court.

Whether the provisions of the charter enabled the council to delegate any power to the mayor is not within our competency to decide. That is necessarily a state question, and we are confined to a consideration of whether the power conferred does or does not violate the Constitution of the United States.

It is contended that it does, because the ordinance commits the rights of plaintiff in error to the unrestrained discretion of a single individual, and thereby, it is claimed, removes them from the domain of law. To support the contention, the following cases are cited: In re Frazee, 63

Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; 13 State v. Dering, 81 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. Rep. 175; Mayor, etc., v. Radecke, 49 Md. 217, 33 Am. Rep. 239; City of Chicago v. Trotter, 136 Ill. 430, 26 N. E. 359.14

With the exception of Mayor, etc., v. Radecke, these cases passed on the validity of city ordinances prohibiting persons parading streets with banners, musical instruments, etc., without first obtaining permission of the mayor or common council or police department. Funeral and military processions were excepted, although in some respects they were subjected to regulation. This discrimination was made the basis of the decision in State v. Dering; but the other cases seem to have proceeded upon the principle that the right of persons to assemble and parade was a well-established and inherent right, which could be regulated, but not prohibited or made dependent upon any officer or officers, and that its regulation must be by well-defined conditions.

This view has not been entertained by other courts, or has not been extended to other instances of administration. The cases were reviewed by Mr. Justice McFarland, of the Supreme Court of California, in Re Flaherty, 105 Cal. 558, 38 Pac. 981, 27 L. R. A. 529, in which an ordinance which prohibited the beating of drums on the streets of one of the towns of that state, "without special permit in writing so to do first had and obtained from the president of the board of trustees," was passed on and sustained. Summarizing the cases, the learned justice said:

"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray [Mass.] 161); forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Com. v. Abrahams, 156 Mass. 57, 30 N. E. 79), or upon the common or other grounds, except by the permission of the city government and committee (Com. v. Davis, 140 Mass. 485, 4 N. E. 577); 'beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission of the president of the village,' on any street or sidewalk (Vance v. Hadfield, 51 Hun, 620, 643, 4 N. Y. Supp. 112); giving the right to manufacturers and others to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27); prohibiting the erecting or repairing of a wooden building without the permission

13 See, however, Love v. Judge of Recorder's Court, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618 (1901).

14 See, also, Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155 (1898); Noel v. People, 187 Ill. 587, 58 N. E 616, 52 L. R. A. 287, 79 Am. St. Rep. 238 (1900).

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