Dissenting Opinion.
Jordan, J.— I am constrained to dissent from that part of the conclusion of the majority of the court, whereby the constitutional validity of that portion of *476section two, embraced within, the last proviso is affirmed. To hold that the theory of this proviso has such an application to the fitness of an applicant, that the fact that the latter desires a license to retail liquors in a room wherein he intends to conduct other business, may be considered by the board, in deciding upon his right to be intrusted, under the act of 1875, with such license, cannot be maintained, except by a strained and unreasonable interpretation of the statute. The first section of the law had already specified certain facts to be considered by the county commissioners in the determination of the applicant’s right, under the law, to receive a license, and it cannot be presumed that the legislature impliedly intended to engraft this proviso, upon other provisions of the law, applying to the 'fitness of one seeking to obtain a license to sell intoxicating liquors.
The unreasonableness of such an interpretation is apparent.
The first clause of the section in question requires that all persons holding a license, under the law of the State of Indiana, authorizing the sale of spirituous, etc., liquors in less quantities than a quart at a time, shall provide for the sale of such liquors in a room separate from any other business of any kind, etc. The section closes with a proviso as follows: “And provided further, That if such applicant for license desires to carry on any other or different business, he shall state the same in his application for license, and the same may be granted or refused by the board of commissioners hearing such application, and such permission shall be stated in the license if granted.” For a failure to comply with the requirements of this section, the pex’son so offending is made subject to the penalty of section four. It will be obsexwed that the first clause of this section denies to all *477persons holding a license to retail intoxicating liquors under the law of this State, the right to sell the same in a room wherein other business is conducted; while, by the latter part, which is th e proviso, the question of either permitting or denying the right, or privilege, is submitted to the board of commissioners, without any fixed or prescribed limitations, terms, conditions, or standard of any kind by which the qualifications or fitness of the applicant to carry on other or different business in the same room where the liquors are to be sold, may be measured. This provision, I think, clearly attempts to invest these inferior officials with an arbitrary, undefined, and unlimited power to determine who, and who may not, be entitled to the privilege of conducting some other lawful business in the same room wherein intoxicating liquors are, under the law, permitted to be retailed. It is left, by this provision of the statute, as a mere matter of choice, to. be exercised upon the-part of the board of commissioners, as between two applicants for this permit, belonging to the same class, and on equal terms in all respects with each other, as to the fitness, conditions, etc., to decide as to which one the privilege shall be granted, and as to which one it shall be refused. Invested with this unfettered power, no measure of a legal right to the privilege could be attained. Each applicant would therefore depend for success upon some discretionary standard that might be erected by the particular board hearing the application. Under this undefined power, one man in a city or town, by means of influence, evil or otherwise, might possibly secure from the commissioners a grant to conduct a restaurant or the business of selling groceries in the same room where intoxicating liquors were sold in less quantities than a quart, while all other applicants, on equal terms, and similarly sit*478uated, might be denied the privilege. With the same logic, force, and reason it might be insisted that, under the constitution, the general assembly has the power to authorize boards of commissioners, upon granting a license to retail intoxicating liquors to arbitrarily prescribe the fee to be paid for the privilege, and likewise the conditions of the bond which the licensee should execute, and the character or situation of the room wherein the liquors are to be sold. Certainly, no one, in reason, could affirm the validity of such a law. The mere statement of such a proposition exposes the absurdity thereof. A statute is a rule of action, prescribed or declared by the legislature, and the manner in which it shall be applied to control the conduct of the citizen must be fixed by the legislative body with reasonable certainty.
Judge Cooley, in his work on Const. Lim. (6th ed), says : “ Thos'e who make the laws ‘are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and countryman at plough.’ This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments.”
After prohibiting a licensed retailer of liquors from selling the same in a room in connection with other business, the section proceeds upon the theory that it may be proper for him to do so, and the question of permitting him to exercise this right is then submitted to the board for its determination, with no legally defined or fixed terms, conditions or circumstances, for its- guidance in its decision as to the projiriety of granting or refusing the desired privilege. The license law of 1875 fixed a standard of moral qualifications, fitness, and freedom from habitual intoxication, as a test of the legal *479right of one to be granted a license to engage in the sale of liquors. This court, in the appeal of Grummon v. Holmes, 76 Ind. 585, held that where a remonstrance, under that act, was interposed against the granting of a license, that the immorality or other unfitness imputed therein to the particular applicant, ought to be set forth with such a degree of certainty as would advise him of the nature of the charge, so that he might be prepared to meet it. The principle here at issue has been considered by this court upon four other occasions, and each time the question has been decided adversely to the contentions of counsel for the State.
In Bessonies v. City of Indianapolis, 71 Ind. 189, the city sought to require that hospitals within its limits should be conducted only upon a permit to be secured upon notice and application to the council and board of aldermen. The ordinance was held invalid. Worden, J., on page 198 of the opinion, said: “It is apparent, that, under the ordinance, if valid, the common council and board of aldermen have the power, to grant or refuse the license in' any given case, at their mere pleasure; and that no one can conduct or maintain a hospital within the city, however harmless or beneficial it might be, except by the consent of the common council and board of aldermen.
“It is not necessary to suppose that the common council and board of aid ermen would abuse the power thus assumed by them, to grant or refuse the license, as they might think proper, or that they would exercise it otherwise than as they might think for the public good. It is sufficient to say, that, if the ordinance is valid, the common council and board of aldermen have it in their power to grant one person a license, and refuse another, under the same circumstances. No law could be valid, which, by its terms, would *480authorize the passage of such an ordinance. The 23d section of the Bill of Bights provides, that ‘The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.’ What the legislature cannot do directly in this respect, it cannot authorize a municipal corporation to do.”
In the case of Bills v. City of Goshen, 117 Ind. 221, an ordinance requiring a license to conduct the business of roller skating upon the payment of such a fee as the mayor or common council should determine in each particular case, was held invalid. The court quoted with approval from Horr and Bemis on Mun. Ordinances, this language: “The ordinance itself should specify every condition of the license, and the officer should be merely intrusted with the duty of issuing licenses.”
In the case of City of Richmond v. Dudley, 129 Ind. 112, an ordinance placing restrictions upon the keeping of explosive oils, was held void for the reason that it permitted the exercise of arbitrary discrimination by the municipal officers. This court, after reviewing the decisions of several States, and the case of Yick Wo v. Hopkins, 118 U. S. 356, said: “It seems, from the foregoing authorities to be well established that municipal ordinances placing restrictions upon lawful conduct, or the lawful use of property, must, in order to be valid, specify the rules and conditions to be observed in such conduct or business'; and must admit of the exercise of the privilege by all citizens alike, who will comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities, between citizens who will so comply.”
*481In the City of Plymouth v. Schultheis, 135 Ind. 339, the principle asserted in the cases last cited was again considered, and sustained. Cases which support the principle contended for by counsel for appellee are numerous. In Yick Wo v. Hopkins, supra, an ordinance of the city of San Francisco, prohibiting the conducting of laundries without a permit from the city’s board of supervisors, except in buildings constructed of stone, was held to be void. Justice Matthews, in the course of the opinion, said: “It does not prescribe a rule and conditions for the regulation of the use of the property for laundry purposes, to which all similarly situated may conform. It allows without restriction, the use for such purpose of buildings of brick or stone; but, as to wooden buildings, constituting nearly all of those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom that consent is withheld, at their mere will and pleasure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living.”
In the case of Robison v. Miner & Haug, 68 Mich. 549, certain provisions of a statute, authorizing local boards to reject the bond of a liquor dealer if the latter was known to them to be a person whose character or habits would render him unfit to conduct the business, and allowing a county treasurer to require a new bond upon any contingency that he should determine required it, were held to be unconstitutional, Camp*482bell, J., in considering the question, stated the principle as follows:
“If the law itself singled out any class or classes of persons as improper to be allowed to carry on this business, then the only inquiry would be as to the fact of anyone belonging to the forbidden classes. But, in such a case, without an admission of it, the applicant would certainly have the right to some hearing on the facts, and to.be assured a hearing which could be examined by some court in case of capricious abuse. The subject was somewhat discussed in Dullam v. Willson, 53 Mich. 392 (19 N. W. Rep. 112), where many cases were referred to, showing the right of accused parties to know what they are accused of, and to have a hearing which will give them means of fairly meeting the charges. Without this there can be neither fairness nor uniformity in the operation of the law. If no standard is laid down, there may be as many scales of fitness and unfitness as there are boards. We have already had occasion, under the old law, to discover that boards desirous of preventing liquor-selling'are ingenious in finding fault with bondsmen. There are very many excellent people who regard every seller of liquor as a bad man, unfit for social privileges, and others who hold peculiar views on other topics, which would render them harsh censors. If the statute had fixed the rule, there would be means of protecting parties against caprice and condemnation unheard. But when the same persons are to be judges of the proper causes of rejection, as well as of the fitness of persons under such causes, the law subjects everyone to the mere will of his neighbors, and gives him no rights whatever. No man’s rights can be submitted, under a constitutional government, to the discretion of anybody.” Frazee’s Case, 63 Mich. 396, 6 Am. St. Rep. 310.