(dissenting). This is an application to compel the mayor and city clerk of Grand Rapids to issue a license to carry on a saloon at No. 80 Waterloo street, in a block located on the corner of Waterloo and Monroe streets. Relator presented his bond to the common council, and that body approved it, and recommended that the license be granted. The mayor vetoed the action of the ■common council, giving as his reason that an application had been before made, by one Johnson, for a license to keep a saloon at 48 Monroe street (the Monroe street front of the same building), which called forth a remonstrance, and the application was rejected; that—
“It seems to be the almost universal opinion that this is an unsuitable place for a saloon, and, aside from that, there are reasons which seem to justify its refusal. We ■are chosen to enforce the laws, and to see that no advantage is taken of us, where the laws can be evaded. In this case there is only a temporary board partition separating the room on Monroe street from the room where the saloon is to be kept, and immediately upon the license being received this partition can be taken \down, and the ■saloon opened up on Monroe street; and there is no power possessed by the city, or its officers, to prevent running it at the place where they have refused, unanimously, to have it located. We should make it sure this would not happen.
“Again, I am convinced that this application in the interest, if not for the use, entirely, of Mr. Johnson, and Mr. Johnson himself states to me that he expects to open a *202restaurant on the second floor, in case the billiard tables are moved out, as they may be, and to fit up sleeping rooms on the third floor, with an inside stairway from the saloon to this restaurant. We would be putting it beyond the power of' the officers to compel compliance with the laws.”
Section 10, title 3, of the charter of Grand Eapids provides that the common council—
“ Shall have power, within said citjr, to enact, make, continue, establish, modify, amend, and repeal such ordinances, by-laws, and regulations as they deem desirable, within said city, for the following purposes: * * * To license and regulate the keepers of hotels, taverns, and other public houses, grocers, and keepers of ordinaries, and victualing and other houses or places for furnishing meals or food; to restrain, license, and regulate saloons, and to regulate and prescribe the location thereof.”
The ordinance provides that—
“No person shall engage in the business of saloon keeping, in any house or place within the limits of this city, without first having obtained a license for that purpose from the common council.”
Every person desiring to keep a saloon is required by this ordinance to make an application in writing to the common council, stating the number or location of the saloon, accompanied with a recommendation, signed by at least 12 reputable and respectable citizens of the city, certifying that the applicant.is of good reputation, fame, moral character, and an orderly person. No ordinance has been enacted fixing any districts, prescribing the location of saloons, or how they shall be separated from other apartments, or how the building shall be otherwise occupied.
It will not be contended that the charter power to license includes the power to prohibit either hotels, taverns, public houses, groceries, or saloons. The right to sell liquor, under certain restrictions and conditions, is made lawful by statute, and the statute expressly provides by what *203method counties may exercise the prohibitory power. The power to license is conferred as a mere incident of the power to regulate. When the liquor business is carried on within the restrictions established by the Legislature, and such additional restrictions as may be lawfully imposed by local authority, its rights should be respected and protected by courts as carefully, and to the same extent, as those of any other business. People v. Scranton, 61 Mich. 244; Amperse v. City of Kalamazoo, 59 Id. 78. The power to regulate assumes the existence of the traffic. Suppression is not regulation, bnt prohibition. The words “regulate” and “prohibit” are not synonymous. People v. Gadway, 61 Mich. 285; In re Hauck, 70 Id. 396.
In Potter v. Village of Homer, 59 Mich. 8, 13, Chief Justice Campbell says:
“The Legislature, and not the common council, has the right, and has exercised the duty, of determining on what terms liquors may be sold. * * * It was not designed by the law that the lawfulness or unlawfulness of the traffic should be determined by a common council, or that the power to do business should depend on their pleasure. The statute itself has fixed the conditions, and nothing is left to the council, except to pass upon the sufficiency of the sureties. * * * In this they have the same discretion, and no more, that is possessed' by other persons called on to approve sureties. * * * It is tyrannical, as well as unlawful, to hinder' any one who is ready to furnish security from conducting his lawful business.”
In Re Frazee, 63 Mich. 396, 406, it was held that whatever regulations are made by a municipality must operate uniformly under the same conditions.
“All by-laws,” says Chief Justice Campbell, “made to regulate them, must fix the conditions expressly and intelligibly, and not leave them to the caprice of any one. * * * When men in authority have arbitrary power there .can be no liberty.”
The ordinance in that case was held to be unreasonable—
*204“Because it suppresses what is in general perfectly lawful, and because it leaves the power of permitting or restraining processions, and their courses, to an unregulated official discretion, when the whole matter, if regulated at all, must be by permanent legal provisions, operating generally and impartially.”
The act of 1887 undertook to authorize the rejection of the bond if the principal was known to the board, to which the bond was presented for approval, to be a person whose character and habits would render him an unfit person to conduct the business. In Robison v. Miner, 68 Mich. 549, 555, this provision was held void. Mr. Justice Campbell, referring to the power sought to be vested in the board, says:
“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 lawr subjects every one 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.”
See, also, Kuhn v. Common Council, 70 Mich. 534, 538.
In Baltimore v. Raclecke, 49 Md. 217, 230, referring to an ordinance respecting the use of steam engines in the city of Baltimore, the court say:
“It does not profess to prescribe regulations for their construction, location, or use, nor require such precautions and safeguards to be provided by those who own and use them as are best calculated to render them less dangerous to life and property, nor does it restrain their use in box factories, and other similar establishments, within *205certain defined limits, nor in any other way attempt to promote their safety and security without destroying their usefulness. But it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine in the prosecution of any business in the city of Baltimore to cease to do so, and, by providing compulsory fines for every day’s disobedience of such notice and order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but only to act in particular cases, there is nothing in the ordinance to guide or control his action. It lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented. * * * When we remember that this action or non-action may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism, and other improper influences and motives, easy of concealment, and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment’s consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.”
In Yick Wo v. Hopkins, 118 U. S. 356, an ordinance of the county and city of San Francisco made it unlawful for any person to carry on a laundry business within the corporate limits without first obtaining the consent of the board of supervisors, unless the laundry was located in a brick or stone building. It appeared that there were about 320 laundries in San Francisco; that 310 of them were in wooden buildings; that 240 of them were owned and conducted by Chinamen; that 200 of said Chinamen had applied to the board of supervisors for permission to do business; and that all of said applications were denied, while all the applications of those of other nationalities were granted, except one. The court held that the ordinance was invalid because it undertook to confer *206arbitary power on the supervisors to deprive a person oi the right to carry on his business. Mr. Justice Matthews, speaking for the court, says:
“If an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent without reason, and without responsibility. The power given to them is not confined to their discretion, in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint.”
In Tugman v. Chicago, 78 Ill. 405, it was held that an ordinance which prevents one citizen from engaging in a particular business in a certain locality, under a penalty, while another is permitted to engage in the same business in the same locality, is unreasonable and void, and that it makes no difference that the persons who are allowed to continue were already engaged in the business when the ordinance was adopted, for, if the ordinance prohibits one from carrying on the business, that prohibition should extend to all, regardless of the time the business maj1- have been commenced.
The reasons given by the mayor for his veto in the present case illustrate the necessity for some uniform regulations fixing the rights of applicants, and the conditions under which licenses may be granted. The mayor is convinced, that the application is in the interest, if not for the use, of Johnson. This is a mere supposition, unwarranted by any fact that appears either in relator's application to the council, or in the return here made. It is a mere notion of his own. The fact that a restaurant *207■“may be” opened on the second floor “if the billiard tables are removed, as they may be,” or that sleeping rooms are to be located on the third floor, or that the board partition divides the lower floor into two apartments, ■or that stairs lead from this floor to the next, are not unusual conditions. In a number of the cases which have come before this Court, saloons are carried on in connection with restaurants, cigar stores, billiard rooms, and lodging apartments, and no law exists prohibiting such ■connection. In other cases, saloons are connected with living apartments. In others, side doors connect with hallways, and back doors with alleys. These are matters which are susceptible. of definite rules, if the power exists to impose conditions respecting them. In the absence of rules applicable to all, there is no protection against individual persecution, and the exercise of arbitrary power or caprice, and the success of any application may depend upon the measure of the applicant's influence, or upon the influence exercised by the proprietor of the establishment next door, which has already been licensed.
The power to license or regulate the business, or to prescribe the locality in which it shall be carried on, is conferred with the intention that it shall be exercised -by the body to whom that power is delegated, and in the mode prescribed. Black, Intox. Liq. § 228; Cooley, Const. Lim. {6th ed.) pp. 248, 249. The very grant of power, in the present case, describes the mode of its exercise. It contemplates definite, impartial, and permanent rules, operating uniformly, and negatives the idea of an arbitrary exercise ■of the power in each case, as it may arise. If the position taken by respondents is correct, the council may refuse a license to A., and grant one to B., or it may refuse to grant one to A., at No. 80 Waterloo street, and grant one to B., at No. 82 Waterloo street. Indeed, the petition in the present case sets up, and it is not denied, that within *208less than 11 feet of the place named there is a saloon in operation, and within the same block there are three saloons. The power conferred by the charter can only be exercised by the adoption of-a general ordinance, prescribing a general rule by which licenses may be granted, and all persons coming within the requirements of such ordinance, and complying with its terms, are entitled to receive a license. Black, Intox. Liq. § 228. The matter must not be left to the caprice of any one, hut, if regulated at all, must be by permanent legal provisions, operating generally and impartially, and reasons given for the refusal of a license must have their basis in, and be supported by, such provisions. See State v. Mahner, 48 La. Ann. 496; State v. Dubarry, 11 South. Rep. 718; City of Jacksonville v. Ledwith, 26 Fla. 163; Ex parte Theisen, 11 South., Rep. 901.
In Sparrow’s Petition, 138 Penn. St. 116, and in Baudenbusch’s Petition, 120 Id. 328 the general law provided that-the court of quarter sessions should hear petitions, in addition to that of the applicant, in favor of, and remonstrances against, the application for such license, and in all cases should refuse the same whenever, in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license was not necessary for the accommodation of the public, and entertainment of strangers or travelers, or that the applicant was not a fit person to whom such license should be granted. In U. S. v. Ronan, 33 Fed. Rep. 117, and in Be Hoover, 30 Fed. Bep. 51, the-code of Georgia expressly empowered the commissioners, “ to grant or refuse such application ” for a license. In Ailstock v. Page, 77 Va. 386, by express statutory provisions, the county courts were vested with discretionary powers, and the applicant was allowed an appeal. In Batters v. Dunning, 49 Conn. 479, the act authorized the *209county commissioners to license suitable persons to sell liquors in suitable places, and tlie court held that the statute had characterized, by a general qualifying word, the persons to be licensed, and the places of business; that the word was not defined by law, so that its application could be determined, except by the judgment of the commissioners. There is no doubt as to the power conferred in any of these cases.
The case of Van Dann v. Uhl, Mayor of the city of Grand Rapids, is cited by the majority, but that case is not reported, and we have been unable to agree as to just why the order to show cause was refused in that case, and there is no data at hand from which to settle the question. Karreman v. Mayor of Grand Rapids, determined July 9, 1889, but not reported (no opinion being filed), involved the same question here presented, and after a full hearing a mandamus was granted.
The section of the charter of Grand Eapids, referred to by Mr. Justice Grant, prohibiting persons from engaging-in the business without having first obtained a license, is as follows:
“Sec. 21. No person shall engage in or exercise the business or occupation of hotel or tavern keeper, innholder, common victuler, or saloon keeper, within the limits of said city, until he is first licensed as such by the common council, under such penalty as the common council may by ordinance prescribe; and all persons who shall keep a bar, or who shall sell beverages by the cup or glass, shall be deemed saloon keepers, within the meaning of this act, and be required to take license as such: Provided, that nothing in this act shall be construed as licensing the sale of intoxicating liquors as a beverage.”
The power of the council in the premises is derived from section 10, and not from section 21. The question here is not so much what power the Legislature has over the liquor traffic, or what power may be delegated to *210municipalities, but rather what is the nature of the power granted in this particular instance? Does the grant prescribe the manner of its exercise? Is the power granted power to legislate on the subject, or is it a discretionary power,'in the absence of ordinance, regulation, rule, or order? Does the grant of power to license under fixed rules, orders, regulations, or ordinances convey the right to refuse arbitrarily a license in a case where all the conditions of existing ordinances have been complied with? I think not, and the writ should issue.