(dissenting,) I do not agree with the majority of the court that the county court had either the power to insert the condition in the license or to revoke the license after breach of the condition. However wholesome.the exercise of such power may seem to be, it is sufficient to say that the Legislature has not seen fit to confer that authority, and it is not within the province of the courts to read it into the statute. The power to regulate and control the liquor traffic is vested exclusively in the General Assembly, which may delegate it to any other body or tribunal. It has not yet done so. The county court has no legislative power, and is not invested with power to regulate the sale of liquor. Its powers are limited solely to that of determining, after the people have voted affirmatively on the license question, whether or not license shall be granted, and of issuing the same to such persons of good moral character as apply therefor. To that extent it may exercise the veto power to prohibit the liquor traffic altogether; but when it has determined upon a policy, and found the applicant to be a person of good moral character, and issued to him a- license to sell whisky for the year, its powers are completely exhausted, so far as that applicant is concerned. In passing upon the question of license to a given applicant, the court must first determine whether or not he is a person of good moral character. The court cannot pretermit a determination of that question, and take the applicant upon probation, so to speak, by granting a license upon condition that he shall thereafter continue to be of good moral character, or that he shall not thereafter violate the law, under penalty of having his license revoked.
None of the cases cited in the opinion of the majority, with a single exception, sustain the view that the county court has power either to insert the condition or to revoke the license. All of them are cases where the power of revocation is sought to be -exercised by municipal boards having legislative functions and empowered to regulate the liquor traffic. It is conceded, as before stated, that the Legislature has power either to impose conditions upon liquor licenses, or to revoke them, or to authorize some other body to regulate the traffic by the imposition of conditions and to exercise the power of revocation.
The Legislature of this State has done neither. I am not aware of the decision of any court holding that a court or other body not exercising legislative functions can revoke a license once issued, with the single exception of a decision of a district court of Pennsylvania cited in the majority opinion.
In the case of Lantz v. Hightstown, 46 N. J. L. 102, the learned judge, delivering the opinion of the court, said: “In-regard to the exercise of the power over the subject of licensing inns, the statute contains express mention of the grounds upon which the court of common pleas shall proceed to revoke the license before the expiration of the time for which it is granted. Rev. p. 489, § 24. This section contains a wide scope for judicial action, and the prescription of the causes which shall be the ground for revocation is an implied admission of the absence of the power to revoke without legislative sanction. I know of no case where this power has been asserted in a case not coming within those mentioned in the act. I can find no instance in the practice of boards of excise or other licensing bodies in which the power of revocation has been exerted except under the provisions of a statute.”
Our statute (Kirby’s Digest, § § 2052-2057) prescribes the offenses for which the license of a saloonkeper may be canceled, and it may be said that this excludes the power to revoke for any other cause. It is not contended that the county court has, under this statute, the power to adjudicate the guilt of the licensee of the offenses named and to revoke his license on that ground. That power is lodged in the courts exercising criminal jurisdiction, and the cancellation of the license' follows as a part of the penalty for the violation of the law.
The right of the county court to revoke the license is based, in the majority opinion, upon the ground that the appellant-accepted the license and voluntarily assumed the performance of the conditions imposed, and cannot, therefore, now be heard to dispute the power of the court to impose the conditions to revoke the license for his failure to perform them — an application, as I understand it, of the doctrine of estoppel. I think it is a misapplication of that doctrine, as the license is in no sense a contract, and appellant was not, by acceptance of the license, barred from disputing the power of the court to insert conditions not authorized by law.
In the case of Drew County v. Burnett, 43 Ark. 364, the county court had exacted of an applicant for liquor license a tax of $50 in excess of the amount fixed by the statute. He paid it under protest, and sued the county to recover .the excess, and this court held that the requirement of payment of the excess was an’illegal exaction, and that the applicant could recover it from the county. Now, if the majority of the court are correct in their view that the power of the county court to prohibit the liquor traffic altogether involves the power to permit it upon conditions, then it could be said with equal force that the court has the power to issue license only on condition that the applicant pay an assessment in excess of the tax fixed by statute. This court has held (properly, I think ), in the case cited above, that the county court cannot exact an excessive amount for the license, and I think it reasonably follows from this that the county court has no power to impose any conditions at all, and that, if such are imposed, the court lacks power to enforce them.