Dissenting Opinion.
Jordan, J.As I view this case, under the fa'ets disclosed by the record, I am of opinion that the judgment of the trial court, acquitting appellee of having violated the ordinance in controversy, should be affirmed. Therefore I dissent from the holding of the majority of the court.
*183It is certainly beyond dispute' that the part of section three of the ordinance hereinafter set out is invalid, for the reason that it is wholly unauthorized by §8655 Burns 1908, cl. 40, Acts 1905, p. 236, §53. The part thereof to which I refer requires that an applicant to the common council for a license to retail intoxicating liquors in the city “shall offer and present the same proof required by law to be made before the board of county commissioners on application for a county license to sell such liquors. ”
As the record discloses, appellee, at the time he applied to the council, was the holder of a license to retail intoxicating liquors in the city of Montpelier, which had been granted to him by the Board of Commissioners of the County of Blackford. It is shown by the special findings that the council “refused to permit the defendant [appellee herein] to submit his proofs and evidence, and refused to allow his witnesses to testify for him upon said subject-matter, and made therein the following order in reference to the matter, viz.: The application for liquor license, filed by Lee B. Mills, was presented, and on motion by Smith, seconded by Bain, was ordered not heard by the following vote [here the vote is set out].” The council, in refusing to permit appellee to introduce any evidence to establish that tinker the provisions of the ordinance he was entitled to the license for which he had applied, certainly exhibited a very high grade of arbitrary action. Having arbitrarily refused to grant appellee a hearing, or in any manner to direct that a license be issued to him, and he having endeavored in every manner to comply with all the requirements of the ordinance, manifestly appellant city is not iu position to maintain this action. The time.for which the license by the,board of commissioners had been granted was, when appellee .applied for a city license, already running, and he had paid the required fee for such license. In reason can it be said that he must employ the writ of mandamus to compel the common copncil to discharge a clear and unquestionable duty, and thereby possi*184bly be delayed in obtaining Ms license from appellant city until Ms county license had expired; or, in other words, be deprived of the benefits of his county license, if not as a whole, at least in part, while endeavoring to secure a city license, over the arbitrary will of the common council?
To hold, after he had done or offered to do everything required by the ordinance to entitle him to receive the docu-’ ment denominated a “license,” that he is liable to be prosecuted by appellant for the sale of the liquors in question, because at the time he did not actually hold such document, is to have more regard for the shadow than for the substance. The license is not of itself the right or privilege granted, but is more properly, as the authorities affirm, the evidence of such right or privilege. That the acquittal of appellee was right' is fully sustained by the following authorities: Houser v. State (1862), 18 Ind. 106; Padgett v. State (1884), 93 Ind. 396 (overruled by the majority opinion) ; Prather v. People (1877), 85 Ill. 36; Bennett v. People (1863), 30 Ill. 389; Zanone v. City of Mound City (1882), 11 Ill. App. 334.
In the case last cited the court held that if the applicant for a license had complied with all the requirements of the city ordinance, but the municipal authorities had. failed to act on his application, he could not be prosecuted for selling without a city license. It would be true in this State that in case an applicant for a license to retail intoxicating liquors, to be granted by the board of county commissioners, is denied a hearing by that body, and thereafter offered to pay the required fee to the proper officer and give the bond exacted by the statute, he would not be justified, under such circumstances, in retailing intoxicating liquors, but would be required to resort to mandamus to compel the board to award him a hearing. The board of commissioners in granting a license to retail liquors acts judicially, and before an applicant therefor is entitled to be granted a license by that *185tribunal he is, under the law, required to prove his fitness. Castle v. Bell (1896), 145 Ind. 8.
In this case the common council possessed no power or right under the ordinance to inquire, as does the board, into the fitness or qualifications of appellee to receive a city license. It was not invested with any judicial power, but the duty to be performed by it was merely ministerial. Such license is but the equivalent of a receipt to show the payment of the fee exacted by the city ordinance, the payment or proper tender of which fee would exempt appellee from a prosecution by the city as a retailer without license.
Many of the cases cited in the majority opinion, in view of the facts therein and the law of the particular jurisdiction in which they were decided, are not applicable to the question involved in this appeal. I conclude that the judgment of the lower court should be affirmed.
Gillett, J., concurs in this opinion.