months. And by section 1245 it is further provided that "any application for such license may be refused for good cause, in the discretion of the board of trustees of the town, the city council of the city, or the board of county commissioners of the county," etc.

It is in effect contended by respondent that when an application for a license in conformity with the statute is made and the applicant shows himself to possess the qualifications requisite for the issuing of a license under the statute, it then becomes the imperative duty of the commissioners to grant the license, and that they cannot lawfully, in the exercise of any other discretion, refuse it. And he is required to take such a position, else the complaint does not show a plain legal duty resting upon the commissioners to grant the license.

2

We do not think that under the statute the commissioners are bound to issue a license to every one applying for it, though the application be made in conformity with the statute, and the applicant found to possess all the qualifications requisite for the issuance of a license.] And such is the effect of the holding in the case of Perry v. City Council, 7 Utah, 143, 25 Pac. 739, 998, 11 L. R. A. 446. In that case the granting of a license upon an application made in conformity with the requirements of the statute and the ordinances of the city was refused by the council without assigning any reason therefor. Upon an application. for a writ of mandamus to compel the council to issue a license to the applicant the writ was denied on the ground that the granting or refusing of a license was within the discretion of the council. The then powers conferred upon the council, and the ordinances of the city relating to the issuing of such licenses, were, as appears in the statement of the case, similar to those conferred upon the county commissioners, and the present statutes, heretofore referred to, with the exception that the latter in express terms confer upon the commissioners a discretion to refuse the granting of a license, In that case, Mr. Justice Zane, in delivering the prevailing opinion, and in holding that the council had conferred upon

it "a wide discretion" in the matter, said: "It is apparent from the act under consideration that the intention of the legislature in conferring on the city council the power to regulate the sale of liquor was to enable that body to protect society from the evils attending it. The benefit of the dealer was not the chief end, therefore the duty of the council with respect to him must depend largely on the good of the neighborhood."

He further approvingly referred to the cases of Muller v. Com'rs, 89 N. C. 172, and State v. Holt County Court, 39 Mo. 521, where it was held that even though the application for a liquor license was made in conformity with the requirements of the statute, and the party applying possessed all the required qualifications for the issuance of a license under the statute, still the commissioners, and the county court upon whom was conferred the power to grant liquor licenses, could, in the exercise of their discretion, refuse to grant it. In those cases the statute conferred no wider discretion upon those authorized to grant licenses than is conferred by our statute upon the board of county commissioners. If upon an application for a license made in conformity with the statute, and the applicant shown to possess all the qualifications requisite for the issuing of a license, the county commissioners have no discretion to refuse the granting of the license, then, upon application, might the commissioners be obliged to grant a license to sell intoxicating liquors at every settlement, or neighborhood, or cross-roads, in the county; and not only one or a half a dozen at each place, but as many more as there were persons showing themselves so qualified and applying for a license. The legislature undoubtedly vested the county commissioners with the power of passing upon applications for permission to sell intoxicating liquors. In passing upon such question they may not only consider whether the applicant it twenty-one years or more of age, whether his application is in due form, and whether his proposed bond is good and sufficient, but also whether the person applying for the license is a proper person to be intrusted with the conduct of such business, whether the place

proposed to engage in the business is suitable, whether the demands of the public require such accommodations at such place, and they may also take into consideration many other questions involving the safety, peace, good order, morals, and public good of the neighborhood or community in which it is proposed to engage in the business.

That there are certain dangers, and evils attending the business of selling intoxicating liquors is generally conceded and recognized. Mr. Justice Field, in the case of Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620, said:

"There is no inherent right in a citizen to sell intoxicating liquor by retail; it is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue license for that purpose."

And, as we have seen, by our statute a wide discretionary power is conferred upon the board of county commissioners in passing upon applications for licenses to sell intoxicating liquors within their territorial jurisdiction. When an application for a license is made to them, it unquestionably is their duty to consider it, to make proper inquiry concerning it, and, upon the responsibility of their official oath, to reach a determination. But the duty of the commissioners in the premises to grant licenses is not imperative and mandatory. It is discretionary.

In State v. Board of Com'rs, 60 Minn. 510, 62 N. W. 1135, the court said:

"Whether a license to sell intoxicating liquors shall be granted or refused rests in the discretion of the board of county commissioners in the exercise of which they act judicially and not ministerially, and therefore their action cannot be controlled or reviewed by mandamus." And in State ex rel. Howie v. Common Council of Northfield, 94 Minn. 84, 101 N. W. 1064, that court again said:

"The provisions of the charter vest in the common council authority to regulate and control the sale of intoxicating liquors within the city, and in exercising that authority the council is clothed with discertionary powers, the exercise of which cannot be controlled by the courts. The power to regulate and control includes the power 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 a license, or to limit the number of licenses to be granted, when, in the judgment of the council, the welfare of the city suggests such action."

In Stanley v. Monnet, 34 Kan. 708, 9 Pac. 755, the court said:

"We think the motion to quash must be sustained. The probate judge is vested by the statute with discretionary power in granting permits (to sell intoxicating liquors by druggists), and the duty to do so is not peremptory and absolute. It is not claimed that the probate judge refused to receive or consider the application presented. He has heard the application, and determined not to grant the same. He refuses to give his reasons therefor, but that is immaterial; he has acted."

In Ramagnano v. Crook, 85 Ala. 226, 3 South. 845, the court said:

“In Dunbar v. Frazer, 78 Ala. 538, it was held that the judge of probate, in granting or refusing a license to retail spirituous liquors under the act of February 17, 1885, acts in a quasi judicial capacity, whether the application is or is not contested, and that his action cannot be reviewed or controlled by mandamus. A mandamus will be issued to compel a judicial officer to act, when it is his duty, and he refuses, but not to direct him how to act. In the present case, the judge of probate acted; and the sufficiency of the reasons for his action cannot be reviewed by mandamus, though they may be erroneous.”

These views are also supported by the following cases: Ex parte Whittington, 34 Ark. 394; State v. Stiff, 104 Mo. App. 685, 78 S. W. 675; Devin v. Belt, 70 Md. 352, 17 Atl. 375; Eve v. Simon, 78 Ga. 120; Malmo's Appeal, 72 Conn. 1, 43 Atl. 485; Batters v. Dunning, 49 Conn. 479; State v. Bonnell, 119 Ind. 494, 21 N. E. 1101; Swift v. People, 63 Ill. App. 453; Barnes v. County Com'rs, 135 N. C. 27, 47 38 Utah-11

S. E. 737; People v. Murphy, 65 App. Div. 123, 72 N. Y. Supp. 473; Burke v. County Com'rs, 18 S. D. 190, 99 N. W. 1112.

It is not averred here that the commissioners refused to examine or consider, or act upon, the application. To the contrary it is averred in the complaint that the application "was acted upon by said defendants in due and regular meeting of said board of county commissioners, and by them refused and not granted." These cases, to a large extent, proceed upon the theory that the retail traffic of intoxicating liquors is one which confessedly requires to be kept in prudent hands, and that where the legislature conferred the power upon authorities to regulate, restrict, and control the traffic, and the power, in passing upon applications, to grant or refuse licenses in their discretion undefined and unprescribed by the legislature, the responsibility for the proper conduct of such business rests with such authorities; and, in the language of the court in Ex parte Whittington, supra, if they do not act with a view to the public interests, the legislature may take away their power and discretion, or the people may elect more satisfactory officers upon whom such power and discretion has been conferred; and in the language of the federal court in the case of In re Hoover (D. C.), 30 Fed. 51, that the state may authorize the sale of spirituous liquors on such terms, by such persons, and at such places, as it thinks proper, "and if it may do this directly, may it not delegate to others the exercise of the power? It has simply delegated a portion of its sovereignty to the county commissioners of Chatham County. The commissioners, in the exercise of that sovereignty, refuse a license to the petitioner. The discretion must rest somewhere. The state might have exercised it. It intrusts its discretion to the board of county commissioners, and, as I have said, by the terms of the grant, this discretion is final and not reviewable. This power is inseparable from the sovereignty of the state."

We are not unmindful of rulings made that even though a licensing board may be vested with a discretion in the mat