(dissenting) .•
I am unable to fully concur with the majority of the court in this case. The relator appears to have complied with all the requirements of the statutes and ordinances, and it cannot be claimed that the place at which he proposes to carry on the business is within the prohibition of the statute or ordinances. The question arises, can the city council, under the power to regulate (conferred by the charter) impose additional restrictions? If so, how is that power to be exercised? Must it be by ordinance, so that the requirements prescribed, whatever they may be, will operate uniformly upon all alike under the same circumstances, thus precluding partiality and favoritism; or may the council, notwithstanding the compliance by the applicant with all the provisions of the statute and ordinances of the city upon the subject, arbitrarily grant or refuse each particular license as the same is applied for, and that, too, without giving any reason for its action? It seems to me that the regulation should properly be by an ordinance. If the statute conferred upon the council any such absolute power, then, as relator’s-*155counsel contend, are they admirably calculated to enable the members of the city council to reward their friends and punish their enemies, but they furnish no safeguards for equality or honesty of official action. Some members may vote against the application because in their honest judgment it would be detrimental to the best interests of the city to grant it; another, because he believes there are already saloons too many; another, because the applicant is a personal enemy of his; another, because the applicant is not a member of his religious or political faith; another, because he does not think it right to sell liquor, or license a wrong; another, because he wants to prohibit the sale. Thus a bare majority may be secured against the issuance of the license to one man and grant, it to another. It is claimed that in this case seven couneilmen votéd for and seven against the petition, the-mayor giving the easting vote against it. Neither the-council, as a body, nor any individual member thereof' voting against the application, gave or could be induced to give any reason for his vote or action; and why this-license is refused this court is still in ignorance, except by the return, which gives no reason for individual or corporate action.
The sale of liquor has always been a lawful business, in this city. It has never been prohibited by statute, and the council never had the power to prohibit it. By the charter of 1860 it had power to license, regulate, and restrain it. See Comp. Laws 1876, pp. 699-708, § 24. And so it remained until January 20, 1882, when the charter was amended. By the amendment, power was given to the city council to license, tax, and regulate; the power, to restrain being omitted. This leaves no power to prohibit. See Laws 1882, p. 2. The defense rests entirely upon the supposed right of the council, in its discretion, to grant or withhold license as it may see *156fit. All men are equal before the law; and if one man, •on complying with the statutory provisions, may be licensed to engage in the business of selling liquors, every ■other man in like condition, on complying in like manner with the conditions imposed by law, has an equal Tight to a similar license. Legislation in a free republican form of government should mete out equal rights to all law-abiding citizens; and it is alike against the •spirit and form of our government and institutions to grant any special privilege to one individual, and deny it to another who stands on equal footing with himself; •and this, in my judgment, cannot be accomplished under the guise of “ discretion.” The “ discretion ” vested by •the legislature in the city council is not an arbitrary power, to be exercised as the caprice or prejudices of •that body may dictate, but a legal discretion, whereby the council is to determine whether or not the applicant has substantially complied with the provisions of law. ■The common council of a city must be governed by the .same rules of law in their action upon the granting of these licenses as other bodies who are called upon by statute to pass upon the qualifications of others to engage in any business or calling requiring special conditions preliminary to its exercise, and they are bound in all •cases to act fairly, and to treat each application upon its own merits, impartially.
In the present case it seems there is one saloon in the -neighborhood already licensed, and the common council think this sufficient for the needs of the neighborhood. If this reasoning were sound, the common council might, in their “discretion,” grant to any favored individual an exclusive monopoly of the business in any neighborhood, •or even in the entire city. Could a more fruitful field of favoritism'be possibly devised? It is certainly not in .accordance with my. views as to equality before the law. *157That the discretion vested in the common council is not-an arbitrary power, but a legal discretion, to be exercised equally towards all in like condition, I might cite numberless authorities. I call attention, however, to Ex parte-Candee, 48 Ala. 386; State v. County Court, 41 Mo. 221-227; Mixer v. Supervisors, 26 Mich, 422; Amperse v. Kalamazoo, 59 Mich. 78, 26 N. W. Rep. 222; Potter v. Homer,. 69 Mich. 8, 26 N. W. Rep. 208; Zanone v. Mound City, 103 Ill. 552; Golden v. Bingham, 61 Ind. 198; 11 Amer. & Eng. Enc. Law, 641. It is true that the charter of the city allows the council power to license, regulate,, and tax this business, which is greater authority than merely to approve or reject the bonds; but the council have not decided that the place or neighborhood was 'improper wherein to carry on the traffic, nor that the-relator was disqualified in any manner, but have merely said, in effect, that in that neighborhood one man may engage in the business, but another may not-. This is-not a question of prohibiting the traffic in that locality, but of prohibiting a particular individual, against whom no disqualification is alleged, and who has complied with the law, from engaging in the business, and at the same-time permitting another, under no worse legal circumstances, to do so. This cannot, in my view, be deemed within the discretionary powers of the council. I think the council had no right to withhold the license, and. that the mandamus should issue as prayed.