§ 402. By what body exercised. The exercise of all governmental powers can only be effected through various designated agencies, the power of which is strictly limited to the accomplishment of the particular purpose for which the agency is organized or created. A license fee, therefore, to be valid must have been authorized and imposed by the lawful authority and in the manner designated by law.643 This principle applies not only to the existence of authority to license but also to the mode in or time at which the particular license may be imposed." 644 643 Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627; Ex parte Pfirrmann, 134 Cal. 143, 66 Pac. 205; In re Guerrero, 69 Cal. 88; Walsh v. City of Denver, 11 Colo. App. 523, 53 Pac. 458; Holliman v. City of Hawkinsville, 109 Ga. 107; City of Kinmundy v. Mahan, 72 Ill. 462. Where the power to license is expressly conferred on the city council, it cannot be delegated by ordinance to the mayor of the city. Webber v. City of Chicago, 148 Ill. 313; Wiley v. Owens, 39 Ind. 429; Com. v. Gage, 114 Mass. 328; Auditor General v. Sparrow, 116 Mich. 574; State v. Dwyer, 21 Minn. 512. Darling v. City of St. Paul, 19 Minn. 389 (Gil. 336). A delegated power involving discretion cannot be delegated in whole or in part to any other person or authority. State v. Finch, 78 Minn. 118, 46 L. R. A. 437; State v. Bezoni, 51 Mo. 254; State v. Thompson, 160 Mo. 333, 60 S. W. 1077, 54 L. R. A. 950; McArdle v. Jersey City, 66 N. J. Law, 590, 49 Atl. 1013; City of Cape May v. Cape May Transp. Co., 64 N. J. Law, 80, 44 Atl. 948; People v. Wurster, 14 App. Div. 556, 43 N. Y. Supp. 1088. The right to exercise a reasonable discretion is implied in a grant of power vested in the mayor to grant licenses unless the authority is mandatory in its terms. State v. Dobson, 65 N. C. 346; Com. v. Bacon, 8 Serg. & R. (Pa.) 135; Morgan v. Com., 98 Va. 812, 35 S. E. 448. 644 City of East St. Louis v. Wehrung, 50 Ill. 28. The court here said that "as a general rule, where power is conferred upon a municipal corporation to regulate any calling or business they are powerless to delegate a discretionary authority to others or to an individual. In creating such bodies it is designed to aid the government in the preservation of good order and to protect more effectually persons in the particular community from injuries and annoyances that cannot be so readily guarded against by the genAnd in coneral laws of the state. ferring the power upon the corporate body it is with the intention that it shall be exercised by the body created and in the mode prescribed and any departure from such authority or any attempt by the body to transfer their powers to others is unwarranted." Molihan v. State, 30 Ind. 266; Schlict v. State, 31 Ind. 246; Halloran v. McCullough, 68 Ind. 179; Town of Decorah v. Dunstan, 38 Iowa, 96; Mar If the authority is mandatory granting the license upon compliance with certain conditions, no discretion is vested in the authorities to whom the power is delegated but they must grant the license as directed by statute.645 The rule here given with reference to the exercise of discretionary and delegated powers prevents the passage of an ordinance which leaves the right to a particular body or official to determine arbitrarily whether the requisite conditions have been complied with, or, in other words, which leaves the granting of the license to the unrestrained whim of a subordinate body or official. "The ordinance should provide all the terms under which the license is to be issued and prescribe a uniform rule applicable to all of the class to which it is intended to apply without discrimination or delegation of power to the officer or board empowered to receive the parties upon the application which will permit unreasonable discrimination."640 golies v. Atlantic City, 67 N. J. Law, of State Center v. Barenstein, 66 82, 50 Atl. 367. Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57. An ordinance imposing a license fee, however, is not invalid because it reserves in the mayor the right to revoke the license upon a failure to comply with the conditions pre scribed. Roche v. Jones, 87 Va. 484, 12 S. E. 965. 645 Moseley v. Tift, 4 Fla. 402; Potter v. Common Council of Homer, 59 Mich. 8; Amperse v. Common Council of Kalamazoo, 59 Mich. 78; City of Kansas v. Flanders, 71 Mo. 281. A wrongful refusal by a city official to issue a license is no defense in a prosecution for a failure to take out such a license. In re O'Rourke, 9 Misc. 564, 30 N. Y. Supp. 375; Phoenix Carpet Co. v. State, 118 Ala. 143, 72 Am. St. Rep. 143. 646 Barthet v. City of New Orleans, 24 Fed. 563; In re Bickerstaff, 70 Cal. 35; Bills v. City of Goshen, 117 Ind. 221, 3 L. R. A. 261; Town Iowa, 249; State v. Mahner, 43 La. Ann. 496; City of Baltimore v. Radecke, 49 Md. 217; City of Newton v. Belger, 143 Mass. 598; Robison v. Miner, 68 Mich. 549; Darling v. City of St. Paul, 19 Minn. 389 (Gil. 336). An ordinance is void permitting the licensee to determine the time his license shall be in force. "No specific time for which a license shall be granted, is fixed by the ordinance. The provision of the ordinance is that any person 'may, by paying to the city treasurer the sum of five dollars for every three days, obtain a license.' It is apparent that, in order to ascertain the amount of license money to be paid in any case, the time for which the license is to continue must first be determined. How is this to be done? The most favorable construction for the defendant which can fairly be given to the ordinance as it is framed, it seems to us, is that it authorizes the license to be granted for any time for which the licensee Street parades; consent of property owners. This principle applies especially to licenses or permits for the use of streets by parades or processions.647 shall be willing to pay, and shall pay, at the rate of five dollars for every three days thereof, thus authorizing the licensee in every instance to determine for what length of time the license shall continue. This, it will be observed, is not a permission to the licensee to elect between licenses for different terms of time established by the city council, but a delegation to the licensee of power to determine the term for which the license shall be granted. This, we have seen, cannot be done, and the second section of the ordinance thus construed is void." Hennepin County Com'rs v. Robinson, 16 Minn. 381 (Gil. 340); State v. Kantler, 33 Minn. 69; Town of Trenton v. Clayton, 50 Mo. App. 535. "Again the ordinance in question is objectionable, in that it assumes to transfer or delegate to the mayor a power given to the council. The charter of Trenton, as already quoted, reposed authority in the town council by ordinance to license, etc., peddlers. This ordinance turns over the entire matter to the caprice or discretion of the mayor. It leaves the granting or not granting peddlers' licenses to whom, for what period, and for what cost-altogeth er with the town mayor. "The prin ciple is a plain one, that the powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.' Neither can this ordinance find any support from the thirteenth clause of plaintiff's charter, which empow ers the council 'to pass all such ordinances as may be expedient in maintaining the peace, good government, health, and welfare of the town.' The authority to pass such ordinance must affirmatively appear in the charter. It is not to be inferred from terms of such doubtful import." Winants v. City of Bayonne, 44 N. J. Law, 114. The power to grant a license for the sale of liquor cannot be delegated by the city council to the mayor. But see the following cases holding that under the particular circumstances noted, there was a legal delegation of power. In re Christensen, 43 Fed. 243; Swarth v. People, 109 Ill. 621; Gundling v. City of Chicago, 176 Ill. 340, 48 L. R. A. 230; Town of Decorah v. Dunstan, 38 Iowa, 96. In re White, 43 Minn. 250; City of St. Louis v. Meyrose Lamp Mfg. Co., 139 Mo. 560. An ordinance is valid giving authority to a board of engineers to examine applicants for licenses to act as stationary engineers with the power to reject or grant such applications; this action based upon the examination. Bradley v. City of Rochester, 54 Hun (N. Y.) 140; Child v. Bemus, 17 R. I. 230, 12 L. R. A. 57. 647 City of Chicago v. Trotter, 136 Ill. 430, affirming 33 Ill. App. 206. A delegation to the police depart ment to grant permits for parades and processions is void as a delegation of the legislative power of granting such permits. Anderson v. City of Wellington, 40 Kan. 173, 2 L. R. A. 110; In re The rule also renders nugatory all of those attempts of municipal councils to delegate to property owners the power of de Frazee, 63 Mich. 396. An ordinance requiring the consent of the mayor or common council as necessary to the right of using the street for a parade or procession with musical instruments held void; the court said: "This by-law is unreasonable 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 perma nent legal provisions operating generally and impartially." State v. Dering, 84 Wis. 585, 19 L. R. A. 858. "Nearly all the processions, parades, etc., that ordinarily occur are excepted from the ordinance in question, followed by a provision that permission to march or parade shall at no time 'be refused to any political party having a regular state organization.' It is difficult to see how this can be considered municipal legislation, dictated by a fair and equal mind, which takes care to protect and provide for the parades and processions with trumpets, drums, banners, and all the accompaniments of political turnouts and processions, and at the same time provides, in effect, that the Salvation Army, or a Sunday school, or a temper ance organization with music, banners and devices, or a lodge of Odd Fellows or Masons, shall not in like manner parade or march in proces sion on the streets named without getting permission of the mayor, and that it shall rest within the arbitrary, uncontrolled discretion of this officer whether they shall have it at all. The ordinance resembles more nearly the means and instrumentalities frequently resorted to in practicing against and upon persons, societies, and organizations a petty tyranny, the result of prejudice, bigotry, and intolerance, than any fair or legitimate provision in the exercise of the police power of the state to protect the public peace and safety. It is entirely un-American, and in conflict with the principles of our institutions and all modern ideas of civil liberty. It is susceptible of being applied to offensive and improper uses, made subversive of the rights of private citizens, and it interferes with and abridges their privileges and immunities, and denies them the equal protection of the laws in the exercise and enjoyment of their undoubted rights. the exercise of the police power, the common council may, in its discretion, regulate the exercise of such rights in a reasonable manner, but cannot suppress them, directly or indirectly, by attempting to commit the power of doing so to the mayor or any other officer. The discretion with which the council is vested is a legal discretion, to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any city officer an arbitrary authority, making him in its exercise a petty tyrant. Such ordinances or regulations, to be valid, must have an equal and uniform application to all persons, societies, or organizations similarly circumstanced, and not be susceptible of unjust discriminations, which may In termining whether in certain instances a license or permit for the carrying on of a certain occupation or business should be granted.648 It should be clearly understood, however, that where the delegation of the original power involves action of the character or by those named, the right can only be exercised in such a manner, and the consent of the property owners or action by particular officers is necessary to the validity of the license granted or of an ordinance relative to the subject. § 403. The power to license the sale of intoxicating liquors. The sale and consumption of intoxicating liquors, it is unanimously held by all legal and economic authorities, tends to poverty, disease and crime;649 clearly then, it is within a legitimate be arbitrarily practiced to the hurt, prejudice, or annoyance of any. An ordinance which expressly secures to political parties having state organizations the absolute right to street parades and processions with all their usual accompaniments, and denies it to the societies and other like organizations already mention ed, except by permission of the mayor, who may arbitrarily refuse it, is not valid, and offends against all well-established ideas of civil and religious liberty. The people do not hold rights as important and well settled as the right to assemble and have public parades and processions with music and banners and shouting and songs, in support of any laudable or lawful cause, subject to the power of any public officer to interdict or prevent them." But see Com. v. Plaisted, 148 Mass. 375, 2 L. R. A. 142, as sustaining a delegation by the city council of Boston to the Board of Police of the power to adopt rules for the regulation of itinerant musicians and requiring the taking out of a license for such occupation. 648 In re Quong Woo, 13 Fed. 229; Jones V. Hilliard, 69 Ala. 300; Groesch v. State, 42 Ind. 547; House v. State, 41 Miss. 737; City of St. Louis v. Russell, 116 Mo. 248, 20 L. R. A. 721. An ordinance requir ing a person to obtain in writing the consent of the owners of onehalf the ground in the block in which he desires to erect a livery stable held invalid because of a delegation of the power to grant a license to property owners. But see City of Chicago v. Stratton, 162 Ill. 494, 35 L. R. A. 84, and Martens v. People, 186 Ill. 314, sustaining ordinances passed by the city of Chicago requiring the consent of twothirds of the freeholders of a block in which there is no saloon as requisite to the issuing of a license to keep a saloon in such a block. 649 Duluth Brewing & Malting Co. v. City of Superior, 123 Fed. 353. "It is not disputed that, if the ordinance in question was enacted in the exercise of the police power, it would not be in conflict with the interstate commerce provision of the Constitution. But it is claimed that the or |