Glicker v. Michigan Liquor Control Commission, 10185.

• Decision Date: 12 February 1947
• Docket Number: No. 10185.,10185.
• Citation: 160 F.2d 96
• Parties: GLICKER v. MICHIGAN LIQUOR CONTROL COMMISSION.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F.2d 96 (1947)

GLICKER v. MICHIGAN LIQUOR CONTROL COMMISSION.

No. 10185.

Circuit Court of Appeals, Sixth Circuit.

February 12, 1947.

Arnold F. Zeleznik, of Detroit, Mich., for appellant.

Charles M. A. Martin, of Detroit, Mich. (Foss O. Eldred, of Ionia, Mich., and Edmund E. Shepherd, of Detroit, Mich., on the brief), for appellee.

Before HICKS, McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The plaintiff-appellant, Anna Glicker, appeals from an order of the District Court which sustained a motion of the defendant-appellee, Michigan Liquor Control Commission, and dismissed her complaint filed therein for failure to state a cause of action.

The complaint alleges that the appellant was a citizen of the State of Michigan and was the owner of a Class C license under state law to sell liquor in Detroit; that the license after notice and hearing was suspended by one of the members of the Michigan Liquor Control Commission because appellant had sold liquor to minors in violation of the state law; that on appeal to the full Commission appellant's license was unlawfully and illegally revoked by the Commission; that said action on the part of the Commission was intentional and deliberate discrimination against her on account of political reasons and was done deliberately for the purpose of treating the appellant in a different manner than any other owner of a Class C liquor license, and was in violation of her rights under the Fourteenth Amendment to the Constitution of the United States and Section 1979 of the Revised Statutes of the United States, Title 8 U.S.C.A. § 43. The appellant prayed for an order directing the defendant to renew her Class C license. The order of the District Court dismissing the petition is not accompanied by any opinion and does not refer to any authorities upon which the ruling is based. From a reading of appellee's brief herein in support of the order we assume that the District Judge based his ruling upon the principle that the right to sell liquor in the State of Michigan was not a privilege or immunity of a citizen of the United States within the meaning of Section 1 of the Fourteenth Amendment to the Constitution of the United States, and that therefore appellant's rights under that Amendment had not been abridged.

So much of Section 1 of the Fourteenth Amendment as is material provides as follows: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 1979 Revised Statutes of the United States gives enforcement to the Amendment by the following provisions: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." It is settled that the District Courts of the United States are given jurisdiction by Title 28 U.S.C.A. § 41(14), over suits brought under the provisions of this Act without the allegation or proof of any jurisdictional amount. Douglas v. City of Jeannette, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324.

We agree with the appellee's contention and the District Court's ruling that the appellant has no cause of action under that portion of the Fourteenth Amendment which prohibits a state from enforcing any law which abridges the privileges or immunities of citizens of the United States. "The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by State law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L. Ed. 1044, 27 A.L.R. 27; Madden v. Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84 L.Ed. 590, 125 A.L.R. 1383." Snowden v. Hughes, 321 U.S. 1, Page 6, 64 S.Ct. 397, 400, 88 L.Ed. 497. The right to a license to sell intoxicating liquor is not a natural or fundamental right, nor a privilege incident to national citizenship. The regulation of the liquor traffic in any state is exclusively under the police power of that particular state. Crowley v. Christensen, 137 U.S. 86, 91, 11 S.Ct. 13, 34 L. Ed. 620; Giozza v. Tiernan, 148 U.S. 657, 661, 662, 13 S.Ct. 721, 37 L.Ed 599; Cronin v. Adams, 192 U.S. 108, 114, 24 S.Ct. 219, 48 L.Ed. 365; Sherlock v. Stuart, 96 Mich. 193, 196, 55 N.W. 845, 21 L.R.A. 580; Compare: Emmons v. Smitt, et al., 6 Cir., 149 F.2d 869, 872. Under its police power the State of Michigan has enacted what is popularly called the Michigan Liquor Control Statute, by which the Michigan Liquor Control Commission is authorized to issue licenses to sell intoxicating liquor. Act No. 8 of Public Acts of 1933, as amended; Terre Haute Brewing Co., Inc. v. Liquor Control Commission, 291 Mich. 73, 288 N.W. 339. Accordingly, appellant's right to a license to sell liquor in Michigan is not protected by the privileges and immunities clause of the Fourteenth Amendment.

The Fourteenth Amendment, however, does not stop with protecting the privileges or immunities of citizens of the United States. In the next succeeding clause it also prohibits any state from depriving any person of life, liberty, or property without due process of law, and then following that, in a third entirely separate and independent provision it prohibits any state from denying to "any person within its jurisdiction the equal protection of the laws." The equal protection clause of the Fourteenth Amendment is a right in itself, separate and independent from the rights protected by the privileges and immunities clause of the Fourteenth Amendment. The privileges and immunities clause is restricted to citizens of the United States; the equal protection clause extends its protection to "any person" within the jurisdiction of the state. In Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375, the Supreme Court considered this separate and independent protection given by the equal protection clause, discussing the matter at some length beginning in 257 U.S. at the bottom of page 331, 42 S.Ct. 129, 66 L. Ed. 254, 27 A.L.R. 375 of the opinion. The Court said — "The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process."

In Hartford Steam Boiler Inspection & Insurance Company v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 839, 81 L.Ed. 1223, the Court pointed out that while the Fourteenth Amendment allows reasonable classification of persons, yet it forbids unreasonable or arbitrary classification or treatment, and wrote — "it may be said generally that the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances * * * and that it applies to the exercise of all the powers of the state which can affect the individual or his property, including the power of taxation." In Sunday Lake Iron Company v. Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154, the Court said at page 352 of 247 U.S., at page 495 of 38 S.Ct., 62 L.Ed. 1154 — "The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." (Emphasis added.) The rule that intentional discrimination by a state against a person within its jurisdiction violates the equal protection clause of the Fourteenth Amendment, although it does not violate the section of the Amendment protecting the privileges and immunities of citizens of the United States, is recognized by the opinion in Snowden v. Hughes, supra, 321 U.S. 1, at page 8, 64 S.Ct. 397, at page 401, 88 L.Ed. 497, where it is stated — "The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination." (Emphasis added.) On page 11 of 321 U.S., on page 402 of 64 S.Ct., 88 L.Ed. 497 the Court also said — "If the action of the Board is official action it is subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. * * * Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights." After recognizing and approving the rule the Court declined to apply it in that case solely because the complaint failed to allege "purposeful discrimination" on the part of the defendants, holding that the allegations "willful" and "malicious" were insufficient to raise the issue of equal protection of the laws. Opinion, 321 U.S. at page 10, 64 S.Ct. 397, 88 L.Ed. 497. The dissenting opinion of two of the Justices also recognized the rule and thought...