violation of the regulative provisions of the, ed by Makris, had become a menace to "the ordinance. In August, 1920, the city passed preservation of public morality, health, peace its Ordinance No. 7301 amending section 47 of its general license Ordinance No. 6749 providing for the licensing and regulating of soft drink and candy stores, which amendment, in so far as we need here notice its language, reads as follows: "The application for a license for any business mentioned in this section shall be in writing and shall be signed by the owner or manager of such business. The application shall state the place where the business is to be carried on and the nature of the business there to be conducted. Upon the receipt of such application accompanied by the license fee as above provided it shall be the duty of the city clerk to notify the commissioner of health and sanitation and the commissioner of public safety that such application has been made, and the said commissioners shall inspect, or cause to be inspected, the premises where such business is to be conducted. If the premises are found to be in a sanitary condition and to comply in all respects with the provisions of the health and food ordinances of the city of Tacoma relating thereto, and if the premises conform to the building regulations and in no way menace the peace and good order of the community, said commissioners or their representatives shall recommend to the city clerk that such license be issued. "The recommendation of the two commissioners shall be indorsed upon such application. In case either or both shall recommend that the license be refused the city clerk shall return to the applicant the license fee deposited, but if both shall recommend that such license be issued, the city clerk shall thereupon issue to the applicant a license to conduct the business mentioned in said application at the place therein named. Licenses shall not be transferable. In case the licensee shall move from the location covered by the license to another location in the city, such removal shall by him be reported immediately to the city clerk. All licenses shall be conspicuously posted in a public place on the premises for which such license was granted. and good order," assumed to revoke the li- "City of Tacoma, Washington, "August 26, 1920. Counsel for Makris challenged the constitutionality and validity of the ordinance in so far as it authorizes the commissioner of public safety to revoke his license and there after force the closing of his place of business. A holding that the revocation provisions of the ordinance are void, and the reasons therefor, if sound, may also demonstrate that the prescribed conditions touching the question of issuing or withholding a license are unconstitutional and void. We are not, however, here concerned with that particular question, since Makris has paid the license fee and received his license, and does not now directly challenge the validity of the ordinance in that particular, evidently being satisfied to waive the question of the validity of the ordinance in that particular, during the period covered by his license. The argument here made in behalf of Makris is, in substance, that the effect of the provisions of the ordinance authorizing the revocation of the license is to place in the hands of the commissioner of public safety, and in turn in the hands of the city council upon appeal from the commissioner, the arbitrary power, uncontrolled by any prescribed rule of ac tion, to effectively decide who may and who may not engage in and carry on the manifestly lawful business of selling soft drinks and candy in the city. As we read the ordinance such is the meaning of its terms. It Makris being the possessor of a duly issued may be that the authority to revoke the lilicense under this ordinance, to carry on the cense because of the permission by the libusiness of selling soft drinks and candy, and censee, of "gambling on the premises," is a having established such a business at 13131⁄2 sufficient prescribing of a cause for revokBroadway in the city, and Shoemaker, as ing the license, and that the revocation procommissioner of public safety of the city, be- visions of the ordinance in so far as that ing of the opinion that the business, as conduct-cause alone is concerned might be upheld, if "The license of any business mentioned in this section may be revoked by the commissioner of public safety in his discretion for disorderly or immoral conduct or gambling on the premises, or whenever the preservation of public morality, health, peace or good order shall in his judgment render such revocation necessary. Such revocation shall be subject to appeal to the city council, to be prosecuted by filing a written notice with the council within ten days after the revocation. Upon receipt of such appeal the council shall appoint a day for hearing the appeal, giving the appellant at least three days prior notice in writing thereof. The decision of the council shall be final." (193 P.) mitting to any officer or set of officers the that specified cause for revoking the license (itself is ordinarily perfectly lawful, and combe sufficiently separable from the other provisions of the ordinance, to stand alone. That, however, is not the question before us. That is not claimed as the cause for revoking this license. There is no other specifically prescribed cause for revoking the license or specifically prescribed rule of action which limits or controls the commissioner or the city council in deciding the question of revoking the license. This means that the commissioner, and in turn the city council, may according to their own notions of what is a menace to "the preservation of public morality, health, peace or good order" in each particular case, decide who may and who may not engage in business of this character in the city. In other words, the commissioner is left to determine for himself, not only what acts may have been committed by the licensee, but also whether or not such acts are "disorderly or immoral," or are a menace to the "preservation of public morality, health, peace or good order" warranting revocation of the license. Manifestly upon appeal to the city council that body is not, by the terms of the ordinance, controlled by any more specifically prescribed rule of action, but, like the commissioner, is a law unto itself in each particular case when the ques-withholding, or revoking a license to conduct tion of revocation of a license comes before that body. Our decision in Seattle v. Gibson, 96 Wash. 425, 165 Pac. 109, is practically decisive of this case in principle, in favor of Makris, though the license ordinance there involved sanctioned a somewhat plainer usurpation of arbitrary power than does this ordinance, in that it made no attempt whatever to prescribe any rule touching the question of who | should be granted a license and who should be refused a license to conduct a drug store. It is true, in that decision particular mention is made of the fact that the license might, under the terms of the ordinance, be granted or refused without even an investigation or hearing touching the merits of the application therefor; but the law invoked in support of our conclusion that the ordinance was void, in that "this discretion is purely arbitrary under the ordinance, because no standard of qualifications, nor rule, is fixed upon which an investigation may be made" (using the words of the decision), citing and quoting from Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, Los Angeles v. Hollywood Cem. Ass'n, 124 Cal. 344, 57 Pac. 153, 71 Am. St. Rep. 75, State v. Mahner, 43 La. Ann. 496, 9 South. 480, and State ex rel. Garrabad v. Dering, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948, is, we think, decisive of this case in favor of Makris. All of those decisions were rested upon the principle that an ordinance which authorizes the issuing or withholding of a license to engage in a lawful business, that is, a business which within Our decision in Seattle v. Gibson and those of the federal and state courts upon which that decision is rested render it plain that it is sufficient to render a law or ordinance void in the light of these constitutional guaranties, if the prescribed manner of administering such law or ordinance results in leaving the question of the propriety of issuing, an ordinarily lawful business, and thus the question of who may and who may not engage in such business, to the decision of any officer or set of officers, uncontrolled by any prescribed rule of action. Among the many additional authorities lending support to this view of the law, we note the following: The case of Elkhart v. Murray, 165 Ind. 304, 75 N. E. 593, 1 L. R. A. (N. S.) 940, 112 Am. St. Rep. 228, 6 Ann. Cas. 748, is particularly enlightening and persuasive upon this question. In that case there was involved an ordinance of the city requiring the use on street cars of fenders of a particular make "or some other fender equally as good, to be approved by the common council or its street committee." The ordinance was held void because of the uncertainty of the standard prescribed, in that, whether some other fender than that named was equally as good was left to the decision In the course of the of the city officers. opinion Chief Justice Monks, speaking for the court, said: "The ordinance must contain permanent legal provisions operating generally and impartially upon all within the territorial jurisdiction of such city, and no part thereof be left to the will or unregulated discretion of the common If an ordinance upon council or any officer. its face restricts the right of dominion which the owner might otherwise exercise without question, not according to any uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the city authorities, it is invalid, because it fails to furnish a uniform rule of action, and leaves the right of property subject to the will of such authorities, who may exercise it so as to give exclusive profits or privileges to particular persons." Numerous authorities are then cited in support of this view. The Chief Justice then proceeding, referring to one of the court's prior decisions, said: "In Bessonies v. Indianapolis [71 Ind.] at page 197, this court said: 'Without any provision as to the location or management of hospitals, the ordinance attempts to make it unlawful for anyone to establish or conduct one without a license or permit from the common council and board of aldermen; and the granting or refusal of the license or permit is not governed by any prescribed rules, but rests, in such case, in the uncontrolled discretion of the common council and board of aldermen. It is apparent, that, under the ordinance, if valid, the common council and board of aldermen have the power to grant or refuse the license in any given case at their mere pleasure; and that no one can conduct or maintain a hospital within the city, however harmless or beneficial it might be, except by the consent of the common council and board of aldermen. It is not necessary to suppose that the common council and board of aldermen would abuse the power thus assumed by them, to grant or refuse the license, as they might think * for the public good. It is sufficient to say, that, if the ordinance is valid, the common council and board of aldermen have it in their power to grant one person a license, and refuse another, under the same circumstances. No law could be valid, which, by its terms would authorize the passage of such an ordinance. The twenty-third section of the Bill of Rights provides, that "the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." What the legislature cannot do directly in this respect, it cannot authorize a municipal corporation to do.'" * In Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155, there was involved the validity of an ordinance of the town, limiting the use of certain named boulevards to certain named classes of vehicles, and other vehicles by special permission of the town board of trustees. Holding the ordinance void because of the uncontrolled power so vested in the town board to decide what vehicles might or might not be used upon the street, other than those vehicles specifically named, Justice Magruder, speaking for the court, observed: cretion is lodged with the board of trustees to permit or not to permit traffic vehicles to be used upon the boulevards in question. The ordinance, in so far as it invests the board of trustees with the discretion here indicated, is unreasonable. It prohibits that which is, in itself and as a general thing, perfectly lawful, and leaves the power of permitting or forbidding the use of traffic teams upon the boulevards to an unregulated official discretion, when the whole matter should be regulated by permanent local provisions operating generally and impartially. The ordinance is not general in its operation. It does not affect all citizens alike, who use traffic vehicles. It is only persons driving traffic vehicles upon the boulevards without the permission of the board of trustees, who are subjected to the penalties of the ordinance." Mayor, etc., of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; City of Richmond v. Dudley, 129 Ind. 14, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180; Walsh v. City of Denver, 11 Colo. App. 523, 53 Pac. 458; Peginis v. Atlanta, 132 Ga. 302, 63 S. E. 857, 35 L. R. A. (N. S.) 716; Newton v. Belger, 143 Mass. 598, 10 N. E. 464; Anderson v. Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. Rep. 175; Matter of Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310. Counsel call our attention to and rely particularly upon the decision of the Oregon court in Portland v. Traynor, 94 Or. 418, 183 Pac. 933, 186 Pac. 54, 6 A. L. R. 1410. That decision, however, deals with an ordinance which was held to prescribe a sufficiently specific rule of action to be followed, in the granting or refusing to grant the license in question. Just what was decided is rendered plain by the portion of the decision reading as follows: As we construe it, the ordinance in question is certain and definite in its terms. It provides if, upon investigation, the location 'is found to be suitable for a food establishment, and in proper sanitary conditions according to the ordinances of the city of Portland and the regulations of the United States with reference to plumbing, water supply, ventilation, and cleanliness, the bureau of health shall issue to such applicant a food establishment permit.' "If the premises comply with the ordinance of the city and the rules and regulations of the government with reference to plumbing, water supply, ventilation, and cleanliness, the permit must be granted, and the health officer has The ordinance of the no right to refuse it. city of Portland, and the rules and regulations of the government in such matters, are both definite and certain, and the only question which the board of public health has any authority to consider is whether or not the premises or place of business come within such terms and provisions. * * "By the ordinance of May 23, 1896, all persons are forbidden to take any omnibus or heavy vehicle or any traffic vehicle upon either of the boulevards therein named, except private wagons conveying families, or upon special permission of this board.' The meaning of this provision is, that all traffic vehicles except private wagons conveying families, are only forbidden the use of the boulevards in case their owners do not obtain the special permission of "It is not within the authority, or even the discretion, of the bureau of health to grant arbitrarily a permit to one person who has complied with the ordinance, rules, and regulations, and deny it to another who has com (193 P.) We note that the ordinance there in question contained the seeming general words "suitable for a food establishment"; but as we read that decision those words of the ordinance were held to mean only that the place must be so suitable, measured by the specified conditions. We do not in our present inquiry take note of decisions which have to do with the granting of licenses for the sale of intoxicating liquors, the maintenance of pool rooms, the practice of professions or entering upon occupations more or less dangerous to others looking to the personal qualifications of the licensee. As to such licenses there is necessarily involved some measure of discretion to be exercised by the officer or body charged with the duty of deciding who may or may not engage in such businesses, professions, or occupations. Such cases do not deal with constitutional rights so clearly ascertainable as those drawn in question in this case. [1, 2] We are not deciding that a business of the nature here in question may not be regulated within reasonable limits through the passage and enforcement of ordinances by the city; but only that the city has not the power, neither can the Legislature confer upon it the power, to enact a valid ordinance by the terms of which some officer or set of officers controlled by no more specifically prescribed rule of action than is found in the revocation provisions of this ordinance may decide who may or may not conduct the manifestly ordinarily lawful business of a soft drink and candy store. We have not overlooked subdivision 33 of section 7507, Rem. Code, being a part of what is commonly called the "Enabling Act," authorizing cities of the first class, to which class Tacoma belongs, to frame their own charters, wherein is enumerated one of the powers of such cities as follows: "To grant licenses for any lawful purpose, and to fix by ordinance the amount to be paid therefor, and to provide for revoking the same." Nor do we hold such provision to be unconstitutional; for we are quite convinced that it does not mean anything more than that the city may, in a lawful and constitutional manner, provide for the granting and revoking of licenses. Matter of Frazee, 63 Mich. 396, 403, 30 N. W. 72, 6 Am. St. Rep. 310. The judgment of the superior court is reversed, and the cause remanded to that court, with directions to render judgment enjoining Shoemaker as commissioner of public safety of the city of Tacoma from proceeding under the assumed grant of license revoking power contained in Ordinance No. 6749 as amended by Ordinance No. 7301, or from interfering with Makris or his licensed business by virtue of such assumed grant of power. We note the allegations and prayer of the complaint in the action in the superior court here on review, that Makris is claiming damages from Shoemaker because of alleged interference with his business by Shoemaker. The effect of the trial court's decision against Makris was to deny this claim of dainages. This claim is not pressed here, and we do not find anything in the record that would sustain it; so, in so far as the judgment of the trial court denied that claim, we leave the judgment undisturbed. HOLCOMB, C. J., and FULLERTON, MACKINTOSH, and BRIDGES, JJ., con cur. (33 Idaho, 300) DOWNING v. PANATA. (Supreme Court of Idaho. Nov. 23, 1920.) 1. Appeal and error 1052(6) — Erroneous admission of evidence on a point decided in appellant's favor held harmless. dence is to prove the rescission of a contract of Where the purpose and tendency of evisale, and the verdict on that point is in appellant's favor, the admission of the evidence, although erroneous, does not result in his injury. 2. New trial 21-Not granted because jury took to jury room refused instructions. Where, through oversight and inadvertence, instructions requested by appellant and refused the jury is permitted to take to the jury room by the court, on the ground the law discussed therein is incorporated in the charge given of its own motion, and where it appears there was nothing contained in the requested instructions which was misleading or confusing, or te the disadvantage of appellant, the incident does not constitute ground for setting aside the verdict. It is within the discretion of the court to cause the jury to correct its verdict, when informal and insufficient in not covering the issue submitted to it, or to again retire and consider the case. The adoption of the latter alternative, particularly in the absence of objection, is not an abuse of discretion, and is not ' ground for reversal. Appeal from District Court, Lemhi County; Robert M. Terrell, Presiding Judge. Action by John Downing against John Panata. Judgment for plaintiff for part of the relief sought only. A new trial was denied, and he appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes E. W. Whitcomb, of Salmon, and A. C. cause judgment to be entered in the latter's Cherry, of Weiser, for appellant. favor for the balance, $476.80. The verdict is L. E. Glennon, of Salmon, and J. M. Stev- not final until pronounced and entered of recens, of Pocatello, for respondent. ord. In Brownell Machinery Co. v. Walworth, 193 Ill. App. 23, it is said, in the abstract of the decision: MORGAN, C. J. This action was commenced by appellant to recover $730 from "Until a verdict is received and recorded, it respondent for cattle sold by the former to is not considered valid and final, and it lies in the latter. Respondent alleged a rescission the power of the jury to alter, amend, and corof the contract of sale and, as a counter-rect, the same, but not afterwards." claim, that appellant was indebted to him for hay and pasturage in the sum of $469. The appeal is from a judgment in favor of plaintiff for $375, and from an order overruling his motion for a new trial. [1] Appellant complains of the introduction in evidence of a statement made by his son, not in his presence, which was admitted on the theory that the son was acting as the father's agent. There is probably sufficient proof of agency to justify the ruling of the court on this point; but, if there was not, and the admission of the evidence was erroneous, it was not prejudicial. The purpose and tendency of the evidence was to prove the sale of the cattle had been rescinded. The verdict on this point is in appellant's favor, and the ruling complained of did not result in his injury. [2] In support of the motion for a new trial it was shown the jury took with it to the jury room instructions requested by appellant and refused by the court. This was permitted through oversight and inadvertence. It appears the instructions were refused because the law discussed therein was incorporated in the charge given by the court of its own motion. It is not shown any member of the jury read the requested instructions; but, even if that was done, there is nothing misleading or confusing contained therein, nor is it apparent any disadvantage accrued to appellant therefrom. The incident does not constitute ground for setting aside the ver dict. The case was submitted to the jury, and it returned into court with a verdict in favor of appellant for $730, and one in favor of respondent, on his counterclaim, for $253.20. After consultation with counsel for the parties, and without objection on the part of any one, the court, deeming the findings of the jury ambiguous, re-read a portion of the charge to it, gave it additional instructions, and caused it to again retire to consider of its verdict, which it did, thereafter returning into court with a verdict in appellant's favor for $375. [3] Appellant assigns as error the action of the court in refusing to accept the first two verdicts, and in accepting the last in lieu thereof, and argues that it was its duty to deduct, or to cause the jury to deduct, the amount found to be due to respondent from that found to be due to appellant, and to See, also, Blackley, v. Sheldon, 7 Johns. (N. Y.) 32; 38 Cyc. 1892. [4] C. S. § 6859, provides: "When the verdict is announced, if it is informal or insufficient in not covering the isunder the advice of the court, or the jury may sue submitted, it may be corrected by the jury be again sent out." It was within the discretion of the court to cause the jury to correct its verdict, or to again retire and consider the case. The adoption of the latter alternative, particularly in the absence of objection, was not an abuse of discretion, and is not ground for reversal, Bates v. Price, 30 Idaho, 521, 166 Pac. 261. Other errors are assigned, but they are without merit. The judgment and order appealed from are affirmed. Costs are awarded to respondent. RICE and BUDGE, JJ., concur. (33 Idaho, 308) TICKNOR v. MCGINNIS. (Supreme Court of Idaho. Nov. 24, 1920.) 1. Judgment 139, 143 (3)-Default may be set aside in sound discretion of trial court; mistake or neglect sufficient to justify setting aside default defined. motion to vacate a judgment and set aside a While the granting or refusing to grant a claim that they have been permitted to be default, where right to relief is based on the taken and entered through mistake. inadvertence, surprise, or excusable neglect, is a matter which rests largely in the discretion of the trial judge, reference is always had in stating that rule to a sound, judicial, reviewable discretion, in the exercise of which courts must bear in mind a judgment is property of which the owner must not be deprived without due process of law, and the mistake or neglect, to be sufficient, must be such as may be expected on the part of a reasonably prudent person, situated as was the party against whom the judgment was entered. 2. Compromise and settlement 6(3)-For bearance to sue on disputed claim consideration for promise to pay a sum in satisfaction. If a claim is made in good faith for unliquidated damages and is disputed, and by way of compromise the claimant promises to forbear |