Hinebaugh v. James

• Decision Date: 26 June 1937
• Docket Number: 8626.
• Citation: 192 S.E. 177,119 W.Va. 162
• Parties: HINEBAUGH v. JAMES, Tax Com'r.
• Court: West Virginia Supreme Court

192 S.E. 177

119 W.Va. 162

HINEBAUGH v. JAMES, Tax Com'r.

No. 8626.

Supreme Court of Appeals of West Virginia.

June 26, 1937

Submitted June 1, 1937.

Syllabus by the Court.

Section 12(a), article 15, chapter 12, Acts of the Legislature of 1937, precludes from obtaining license in this state as a distributor of beer, every individual who has not been a bona fide resident of this state for four years next preceding the date of such application. Held: The residence requirement is within the police power of the state, and is not violative of the equal privileges and immunities clauses of the Federal Constitution.

Original proceeding in mandamus by Joseph Hinebaugh against Ernest K. James, State Tax Commissioner.

Writ refused.

J. V Gibson, of Kingwood, and Cramer W. Gibson, for relator.

Clarence W. Meadows, Atty. Gen., and W. Holt Wooddell, Asst. Atty Gen., for respondent.

MAXWELL Judge.

This is a proceeding in mandamus under the original jurisdiction of this court.

Relator Joseph Hinebaugh, seeks to compel Ernest K. James, Tax Commissioner of the State of West Virginia, to issue to him a license as a distributor of non-intoxicating beer within this state.

The relator possesses all necessary legal qualifications of a beer distributor in West Virginia, except that he is a non-resident. Because of his non-residence he has been refused a license by the respondent.

The controversy arises under a recent statute, Acts of the Legislature 1937, chapter 12, art. 15, § 12 (a), which provides, inter alia, that an individual may not be granted a license as a distributor of beer within this state unless he shall have been a bona fide resident of the state for four years next preceding the date of his application for such license.

The relator takes the position, first, that the state is without authority, under the police power or otherwise, to impose a restriction such as stated; and, second, that the restriction is violative of the privileges and immunities clauses of the Federal Constitution.

The relator urges, inasmuch as the legislature has declared malt beverages not containing more than five per centum of alcohol by weight to be non-intoxicating (Acts 1937, c. 12, art. 15, § 2), and, further, inasmuch as a distributor deals with containers of beer in unbroken packages, that there is no basis on which the state may properly invoke the police power in dealing with this subject.

The police power of a state is an attribute of sovereignty, co-extensive therewith, difficult of definition because it cannot be circumscribed by mere words, latent in its nature, yet, nevertheless, perennially existing as a vast reservoir of authority to be drawn on by the law-making branch of the government for the public good. Within constitutional limits, the police power may be exercised to promote the safety, health, morals, and general welfare of society.

Notwithstanding the legislature has declared that beer containing not in excess of five per centum alcohol is non-intoxicating, it by no means follows that the legislature is thereby precluded from setting up strict regulations for the manufacture, distribution and retail of that commodity. Though beer be considered non-intoxicating, nevertheless, the generally known facts pertaining to the manner in which it is often dispensed and of the evils which not infrequently attend thereunto, we entertain no doubt that the legislature may set up such system of beer regulation as it may deem proper, within the Constitution. And such regulation may apply to distribution as well as to manufacturing and retailing. The situation is so closely analogous to the traffic in hard liquor, as to the regulation whereof under the police power there can be no doubt, that the propriety of strictly circumscribing the beer business seems obviously proper. Such a matter is essentially for legislative determination. The legislature, and not the courts, must determine the policy of the state to be voiced in statutory enactments.

In furtherance of its policy of strict regulation of the beer traffic, the legislature, by its requirement of four years' residence for a distributor, has taken the view not only that he shall be amenable to the direct process of the state courts, as a bona fide resident, but, also, that because of four years' residence within the state there will be better opportunity to determine his fitness; and further, by reason of the lapse of time required, there will thereby be a bar against undesirable nonresidents coming into the state for the sole purpose of becoming distributors of beer. There is no inherent right in any in dividual, whether he be a citizen or not, to engage in a business which the state, in the exercise of the police power, has placed under surveillance and permits only as a privilege or franchise. For general discussion of this subject see: 2 Cooley's Constitutional Limitations (8th Ed.), p. 1306; Black's Constitutional Law (2d Ed.), pp 352-354; 6...