
    LARSEN et al. v. SALT LAKE CITY, et al.
    No. 2529.
    Decided May 1, 1914
    (141 Pac. 98).
    1. Municipal Corporations — Constitutional Law — Commission Form of Government — Validity. Laws 1911, abolishing the offices of mayor and city council in cities of the first and second class, and creating a hoard of commissioners to govern and control such cities, is not void because the commission form of municipal government infringes upon the constitutional form of government. (Page 444.)
    
      2. Innkeepers — Power op Municipality to Regulate and License. Authority to regulate and license rooming houses and hotels is expressly conferred upon the city council or board of commissioners by Laws 1911, chap. 120, sections 206x4, 206x38. (Page 444.)
    .3. Evidence — Presumptions—Gppicial Proceedings — Licenses—Action to Compel Issuance. An action to compel a city board of commissioners to issue a rooming house license, under an ordinance permitting them to refuse to do so for good cause, was properly dismissed, where the plaintiffs failed to show that the board refused the license for insufficient reasons; the presumption being that there was good cause therefor. (Page 446.)
    Appeal from District Court, Third District; lion. T. D. Lewis, Judge.
    Action by Alma C. Larsen and another against Salt Lake ■City and others.
    Judgment for defendants. Plaintiffs appeal.
    Apeirmel».
    
      ■Geo. W. Moyer and S. P. Armstrong for appellants.
    
      H. J. Dinirmy, Aaron Meyers and W. H. Folland for respondents.
    APPELLANT'S POINTS.
    Legislative, executive and judicial departments apply to municipalities. (State v. Smith, 15 Mo. App. 412.) An ordinance has the same force within a municipality as a statute. (Eureka v. Wilson, 15 Utah, 53; Stochdale v. By., 28 Utah, 201; By. v. Interstate Commerce Commission, 162, U. S., 197.) The municipality acts in a dual capacity, that is, in its governmental character it is the agent of the State, but as to its private property it acts for itself. {New ■Orleans v. New Orleans Water Worlcs Co., 142 U. S. 79; .Attorney-General v. Detroit, 112 Mich., 145, 37 L. E. A. 211; Commissioners v. Albany Co., 92 IT. S. 307; 1 Dillon Mun. Corp., Section 31, 5tb Ed.; Lloyd v. Mayor, 55 Am. Dec. 347; 28 Cyc. 121, 124; Springville v. Johnson, 10 Utah, 357; Mayor v. Baltimore, 63 Am. Rep., 692; Scott v. La Porte, 162 Ind. 34; Bryne v. Railway, 169 Ill. 75; Johnson v. San Diego, 109 Cal., 468; State v. Lawrence, 79 Ran. 234, 28 Cyc. 117, 121.) A municipal corporation can exercise those powers granted to it by its charter or the legislature, and as it is permitted to exercise the powers which its charter authorizes so it is prohibited from exer- ■ cising those which are not authorized. Any act or attempted exercise of power which transcends the limits expressed or necessarily inferred from the language of the charter or legislative authority by which its power is conferred is beyond the authority of the municipal corporation and is therefore null and void. (Dillon on Mun. Corp. Sec. 89 and 55; Coolce v. McCrea, 93 Ill. 236; McCann v. Auto Co., 9 Neb. 324; Summerville v. Dicleerman, 127 Mass. 272; Bryan v. Page, 51 Tex. 532; Butler v. Nevin, 88 Ill. 575.)
    RESPONDENT^ POINTS.
    The right of a municipal corporation to require a license for conducting any business of a questionable character, reposes in the municipal authorities a discretion to grant or refuse the license depending upon the character, qualifications and good faith of the applicant. (3 McQuillan, Municipal Corp., p. 2238; People v. Jenkins, 125 ,N. T. S. 817; 140 App. Div., 786; People ex rel v. Grant, 126 N. Y., 473; 27 N. E., 964; St. Paul v. Ttoyer, 3 Minn., 291; Buffalo v. Hill, 79 N. Y. S., 449.) Power given by the legislature to a municipality to regulate and license any occupation, includes power to refuse a license even where the statutory or preliminary requirements are complied with. (3 McQuillan, Municipal Corp., p. 2236; 25 Cyc. 603; St. Paul v. Troyer, 3 Minn., 291; People v. Grant, 126 New York, 473; CJiilvers v. People, 11 Mich., 43.) Regulation of rooming houses is a proper exercise of police power. 
      Com. v. Muir, 38 Weekly Notes of Cases, 1896, (Pa.) p. •328; Lord v. Jones, (Me.) 41 Am. Dee., 391; 24 Me. 439; Busselville v. White, 41 Ark., 485; City of Chicago v. M. ■& M. Hotel Co., 248 Ill. 264; 93 N. E., 753; Helena v. Miller, 114 S. W., 237.) The licensing authority may refer the application to another body or officer and so long as it retains the power to decide whether or not a license should issue, it is not a delegation of the licensing power. (In re Bickerstaff, 70 Cal. 35; 11 Pae. 393; Chicago v. Drago-■sawacz, 256 Ill., 34; 99 N. E., 869; Crundling v. Chicago, 52 N. E., 44-46; 177 U. S. 183.) The right to grant or refuse a license implies the power to do so unconditionally, and that a refusal or revocation of a license might be done without notice and without a hearing. (McKenzie v. McClellan, 116 N. T. Supp., 645; Wiggins v. Chicago, 68 Ill., •372; Child v. Bemis, (R. I.), 12 L. R. A., 57.)
   STRAUP, J.

The substance of the complaint is: The plaintiffs are proprietors of a rooming house of 114 rooms known as the St. Cecile Hotel, in Salt Lake City, in which they have invested $16,000. As alleged, they conducted the business '“in a proper, orderly, and lawful manner.” Two ordinances •of the city are alleged, one passed in December, 1903, by the then.mayor and city council, by which a license fee •of fifty dollars is provided for a rooming house of forty rooms or over, the other passed by the board of commissioners of the city in July, 1912, which provides for a license fee of $200 for hotels and rooming houses of one hundred rooms or over. It is alleged the latter is invalid, and that the prior is still in force. On December 30, 1912. the plaintiffs applied to the board of commissioners for a license from January 1, 1913, to January 1, 1914. The board referred the application to the chief of police, who reported that he had inspected plaintiff’s rooming house ■and recommended that ¡.he license be not granted. The board thereupon notified plaintiffs to appear before it “and ■show cause why their license should be granted.” At the appointed time the plaintiffs appeared, “and said board proceeded to a pretended and mock hearing of said matter,” and that “at said pretended hearing the board violated almost all rules of evidence, denied the plaintiffs’ right by cross-examination or otherwise to test the credibility of witnesses testifying against them, and refused to hear or consider pertinent and relevant evidence, and admitted incompetent and hearsay evidence against them, all in keeping-with their predisposed intent ánd fixed purpose to deny them said license.” Other charges are made that at the hearing some of the commissioners held “whispered conversations with the complaining witness, a detective of the city and confidential agent of the chief of police,” and that the detective, without the consent or knowledge of the plaintiffs, caused and induced women of ill repute to procure lodging in the plaintiffs’ rooming house, employed men of low character and ill repute tp visit the house, and “to commit violations of the law” therein, and then caused the arrest of the plaintiffs, and that the detective personally visited the house and attempted “by various arts, means, and devices to induce plaintiffs’ servants to. violate the law and commit crimes therein, and conspired with women of ill repute and immoral men to enter plaintiffs’ hotel” for immoral purposes, and by such means, and by. circulating ill reports, attempted to injure the good name of the plaintiffs’ house. It is further alleged that the board, “without any legal investigation of the facts or knowledge of the facts,” and “arbitrarily, unlawfully, and capriciously, refused to grant plaintiffs a license, and that, unless restrained, the commissioners and chief of police under the direction of the board will arrest the plaintiffs in the conduct of their business, and will greatly annoy and harrass them,” to their great and irreparable loss and damage.

The prayer is: (1) That the order of the commissioners denying the plaintiffs a license be annulled and vacated; (2) that the ordinance requiring the payment of a $200 fee for a license be declared void; (3) that, pending a hearing of the matters presented by the complaint, the board be required to issue plaintiffs a license, subject to tbe final disposition of tbe case, and that in tbe meantime tbe commissioners and tbe chief of police be restrained from in any manner interfering witb tbe plaintiffs’ rooming bouse business “on tbe claim tbat they are conducting a rooming bouse business without license”; and (4) for general relief.

We have thus set forth tbe substance of tbe complaint, for it is somewhat difficult to ascertain its exact character, whether a complaint or petition for a writ of mandate, cer-tiorari, or, as denominated by counsel, a complaint or bill in equity.

Upon this complaint tbe court, on plaintiffs’ application, granted a temporary restraining order and directed tbe commissioners, upon payment of fifty dollars, to grant tbe plaintiffs a license, subject, however, to the final disposition of tbe case. Tbe order was complied witb, and such a license granted, and tbe commissioners and chief of police, pending tbe action, restrained from interfering witb tbe plaintiffs’ business upon tbe ground or claim tbat they were conducting tbe business without a license.

Tbe city and tbe commissioners, answering, pleaded tbe ordinance of 1912, under which they claim power and authority to grant and refuse licenses, and averred tbat when the plaintiffs filed their application for a license—

“tbe application was, as required by said ordinance, duly referred to tbe chief of police of Salt Lake City, who thereafter reported tbat plaintiffs’ place bad been inspected and recommended tbat a license be not granted; tbat thereupon said plaintiffs were notified to appear before said board to show cause why their application should be granted, which tbe plaintiffs did, both in person and by their attorney; tbat a bearing was duly bad upon tbe question of whether or not a license should issue, at which bearing evidence was introduced and admissions made by plaintiffs, from which evidence and admissions said board held and decided that such application for a license should be denied; tbat such bearing was within ■ tbe power of such board as conferred upon it by law and said decision was based upon tbe evidence and admissions aforesaid, and was neither arbitrary or unlawful or capricious.”

Tbe matter came on for bearing before tbe court. Tbe plaintiffs were unprepared to go to trial on. tbe ground, as asserted by tbeir counsel, of tbe serious illness of one of tbe plaintiffs wbo personally conducted tbe business, and wbo, and not tbe other plaintiff, was cognizant of tbe facts. To avoid a continuance, counsel for tbe defendants stated that a written statement by plaintiffs’ counsel would be accepted as tbe testimony of tbe absent plaintiff. Such a statement was prepared and submitted. Defendants’ counsel then admitted that tbe plaintiff, if present, would so testify, and consented that tbe statement be received in lieu bf bis testimony, subject otherwise, to objections as to competency, relevancy, and materiality. Tbe plaintiffs offered tbe statement in evidence. Portions of it were received, and portions, on defendants’ objections, excluded. Tbe plaintiffs adduced no other evidence and rested. Tbe court thereupon, on tbe defendants’ motion, granted a nonsuit. In ruling upon it, tbe court observed:

“Tbe plaintiff has probably shown that be comes within tbe class of persons that are entitled to a license; that is to say, if tbe court were sitting as a board for tbe bearing" of applications for license, be has probably shown that be has made proper application, and is willing to pay tbe fee, and is not disqualified from having a license. But be has not shown, or attempted to show, that- tbe exercise of discretion of tbe board of commissioners was exercised arbitrarily, or without evidence, or that they abused tbeir discretion in any respect. Tbe motion for nonsuit will be granted.”

Pending tbe appeal the court, on plaintiffs’ application,, continued in force tbe restraining order and tbe license theretofore issued upon tbe condition that tbe plaintiffs pay tbe additional sum of $150.

Tbe plaintiffs appealed. It is contended tbe ordinance under which they were required to pay a license fee of $200 is invalid. This on tbe ground that tbe act itself (Laws 1911), abolishing the offices of mayor and city council of cities of the first and second class, and creating a board of commissioners to govern and control such cities, is void, for the reason that the commission form or plan of municipal government infringes upon our constitutional form of government. We think the contention untenable. Little need be said as to this, for in about every instance where similar statutes providing for a commission plan or form of government have been before the courts, and the validity of them assailed on this and other grounds, they have been quite uniformly upheld. State ex rel. Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651, 85 L. R. A. (N. S.) 802, and note.

It is further contended that no sufficient authority was conferred upon the board to regulate and license rooming houses and hotels, etc. Such power is expressly conferred. Sections 206x4, 206x38, chap. 120, Laws 1911. It also is contended that the ordinance is bad because it requires applications for a license to be referred to the chief of police for his investigation, report, and recommendation, and provides that “upon the receipt of such application and report from the chief of police said board shall act on such application in regard to granting or denying the same as it shall seem just and proper.” By this, it is claimed, the commissioners! with respect to granting and refusing licenses have, without authority, delegated a power and function to the chief of police which the statute has conferred and imposed upon the board. We need not inquire into that, for it is neither alleged nor proved that the plaintiffs were denied a license because of the report or recommendation of the chief of police. It is alleged that plaintiffs’ application was referred to the chief of police, and that he recommended that it be not granted. But it also is alleged that the plaintiffs were then notified to appear before the board, and that “a pretended hearing” was had, and as the result thereof the board denied the license. The evidence and the nature of that hearing will presently be noticed. It also is contended the ordinance is bad for tbe reason that it permits and requires the chief of police, in making investigations and inspectons of hotels and rooming houses, to unreasonably and unduly interfere with the rights of those engaged in such business. That likewise is not involved.

Further complaint is made of the court’s rulings refusing to admit in evidence portions of the statement heretofore referred to. This will be considered in connection with the ruling granting the nonsuit, of which complaint is also made. Though all the portions of the statement excluded had been admitted, yet, in our opinion, no prima facie case was made by the plaintiffs. No matter what name may be given the plaintiffs’ action — mandate, ■certiorari, or equity — still the gravamen of it is that the board, without sufficient or just cause, refused them a> license, which ruling or order they, by this action, seek to have annulled, and to direct the board to grant them a license either under the ordinance of 1903 or 1912. The latter, in so far as it is here involved, is valid. Whether it is otherwise invalid, we need not consider or decide. Under it the plaintiffs were required to seek and obtain a license to do a rooming house or hotel business. The commissioners were not authorized to arbitrarily or capriciously deny the license. Nor could they merely within their discretion deny it. They can refuse an applicant a license only for good cause. The plaintiffs alleged that the board, without cause, and arbitrarily and capriciously, denied it. That was denied. As indicated by the trial court, they adduced no evidence to sustain the allegation. No evidence whatever was adduced as to the nature or character of the hearing or the proceedings had before the board, or as to the evidence adduced before it or excluded by it, nor as to the grounds upon which or causes for which plaintiffs’ application for a license was denied. As to that no evidence whatever was adduced. Nor did the portions of the statement excluded in any particular relate to any such subject or subjects. So the plaintiffs did not show nor did they offer to show, anything to indicate that the board 'for insufficient reasons’ or grounds refused plaintiffs a license. And in the absence of such a showing, the presumption must be indulged that the commissioners for good cause, and for sufficient reasons, denied their application. We therefore think the nonsuit was properly granted, and the action properly dismissed.

The judgment is therefore affirmed, with-costs.

McCANTT, C. J., and FRICK, J., concur.  