SH Kress & Co. v. Johnson

• Decision Date: 24 July 1936
• Docket Number: No. 10567.,10567.
• Citation: 16 F. Supp. 5
• Parties: S. H. KRESS & CO. et al. v. JOHNSON, Governor of Colorado, et al.
• Court: U.S. District Court — District of Colorado

16 F. Supp. 5

S. H. KRESS & CO. et al. v. JOHNSON, Governor of Colorado, et al.^*

No. 10567.

District Court, D. Colorado.

July 24, 1936.

Paul W. Lee, George H. Shaw, and Donald C. McCreery, all of Denver, Colo., for plaintiffs.

Paul P. Prosser, Atty. Gen., Norris C. Bakke, Deputy Atty. Gen., and Hudson Moore, of Denver, Colo., for defendants.

Before PHILLIPS and McDERMOTT, Circuit Judges, and VAUGHT, District Judge.

PHILLIPS, Circuit Judge.

This is a suit to enjoin the defendants from enforcing, as against the plaintiffs, chapter 118, p. 433, Colo.Sess.Laws 1935, set out in Appendix A to this opinion, and particularly the provisions thereof defining a restaurant and requiring a license to operate a restaurant, on the ground the act abridges the privileges and immunities of plaintiffs as citizens of the United States, deprives them of their property without due process of law, and denies them the equal protection of the laws.

Section 2(b) of the act reads as follows:

"`Food' shall mean any substance used, or intended to be used, for human consumption, when the same is prepared for consumption to be consumed upon the premises where sold, which, among other things, shall include all meat, fish, vegetables, bread and condiments, whether simple, mixed or compounded, but shall not include soft drinks, ice cream, or ices, and confections."

Section 2(c) thereof reads as follows:

"`Restaurant' shall mean an establishment provided with special space and accommodations wherein, in consideration of payment, meals are habitually furnished to guests, or a place where food is prepared for human consumption to be consumed upon the premises, and whose principal business is the sale of meals, and in which room nothing is sold excepting meals, food, drink and tobaccos. Any establishment connected with any business whatsoever, excepting the hotel business and railway dining cars or any room in any place whatsoever, wherein any business is conducted excepting the sale of meals, foods, drinks, and tobaccos, or hotel business, is hereby declared not to be a restaurant."

Section 3 thereof reads in part as follows:

"From and after a period of thirty (30) days after the effective date of this Act, it shall be unlawful:

"(a) For any person to conduct a `restaurant' without having obtained a license so to do from the State Board of Health and in accordance with the provisions of this Act.

"(b) To sell or serve to any person or to the public, any `food' except the same shall be sold or served in a licensed `restaurant,' as defined in this Act; Provided, however, that nothing in section 3 of this Act shall prohibit or limit the operation of private boarding houses, or the serving of food by individuals, organizations or charitable institutions, engaging only in the occasional sale or serving of food."

Each of four of the plaintiffs owns and operates one or more "variety" stores in Colorado where various kinds of merchandise are carried, offered for sale and sold.

Each of the other plaintiffs owns and operates in Colorado one or more drug stores where the usual drugs, medicines, sundries and merchandise carried by drug stores, are kept, offered for sale and sold or dispensed.

Each plaintiff in the one or more stores operated by him or it, in the same sales room where the general business is conducted, operates a soda and lunch department as an integral and component part of his or its business, where food and soft drinks and confections are sold and served for consumption on the premises.

The plaintiffs operate and maintain their soda and lunch departments in a sanitary manner and are willing to obey and comply with any reasonable sanitary regulation.

Their principal objection is to the requirement that their soda and lunch departments severally shall be conducted as a separate establishment and in a room separate and apart from the room in which the other departments of their respective businesses are conducted.

Plaintiffs sought both a temporary and permanent injunction.

A three-judge court was assembled and after a hearing a temporary injunction was granted.

The court suggested that in view of the uncertainty of the language of section 2(c) and the doubt existing in the minds of the judges of the court as to the proper construction thereof, that the defendants seek a construction of the act by the Colorado Supreme Court under section 3 of article 6 of the Colorado Constitution.

This suggestion was followed and resulted in two opinions by the Colorado Supreme Court (In re Interrogatories of Governor, 97 Colo. 587, 52 P.(2d) 663, 667) set out in part in Appendix B.

In its first opinion the Colorado court in part said:

"The major objective of the act, as we perceive, premised on public health considerations, was to prevent the operation of a restaurant in a room where merchandising is carried on. It inhibits none, regardless of his other activities, or of what might be regarded as the principal one, from engaging in the restaurant business; but if he elects to be both merchant and restaurateur he must conduct the two businesses in separate rooms."

It follows from these opinions that we must view the act as requiring each plaintiff to conduct his lunch business in a room separate and apart from the room or rooms in which the other departments of his or its business are conducted, and that there may be connecting door or doors between the room in which the restaurant department is conducted and the room or rooms in which other departments of the business are conducted.

After the decisions by the Colorado Supreme Court the plaintiffs asked leave to introduce evidence in support of the allegations of their bill. A special master was appointed to hear the evidence and report the same to the court without recommending findings of fact or conclusions of law.

The defendants orally stipulated that the temporary injunction might remain in force pending the final hearing.

The evidence was taken and has been reported to the court, both a full transcript and a narrative thereof, and the cause has been submitted for final disposition on written briefs.

It is well settled that legislation to protect the public health lies within the police power of the state. House v. Mayes, 219 U.S. 270, 282, 31 S.Ct. 234, 55 L.Ed. 213; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 26 S.Ct. 100, 50 L.Ed. 204.

Counsel for plaintiffs, however, contend the requirement that the restaurant business be conducted in a separate room has no reasonable relation to the public health or safety and is arbitrary, capricious and unreasonable.

While there was a sharp conflict in the opinion of experts in the field of health, hygiene and sanitation, there is substantial evidence that the requirement as to a separate room will tend to promote and protect the public health. Had the same evidence been before the legislature, it could have found either way on the issue and its finding would have been supported by substantial evidence.

Furthermore, despite the opinions of experts to the contrary, we regard the requirement, that restaurants as defined in the statute be conducted in a room separate from the room or rooms in which other departments of a business establishment are conducted, has a reasonable relation to the public health. Such a room can more readily be kept clean and sanitary; it can be kept more free from dust and germ-carrying flies; and, as a less number of persons will enter the room than will enter the general business establishment there will be less of sneezing and coughing therein which all the experts admit may contaminate food. Persons entering a dining room are more apt to be careful of the welfare of others than they would be in a general business establishment.

Such being the factual situation, what is the province and duty of the court in the premises?

In Standard Oil Company v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 431, 73 L.Ed. 856, the court said:

"We may not test in the balances of judicial review the weight and sufficiency of the facts to sustain the conclusion of the legislative body, nor may we set aside the ordinance because compliance with it is burdensome."

In Borden's Farm Products Company v. Ten Eyck, 297 U.S. 251, 56 S.Ct. 453, 456, 80 L.Ed. 669, the court said:

"In the light of the facts found, the Legislature might reasonably have thought trade conditions existed justifying the fixing of a differential. Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question whether it so lacks any reasonable basis as to be arbitrary."

In Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 585, 76 L.Ed. 1167, the court said:

"When the subject lies within the police power of the state, debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment."

In Radice v. New York, 264 U.S. 292, 44 S.Ct. 325, 326, 68 L.Ed. 690, the court said:

"Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state Legislature here determined that night employment of the character specified was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination."

In Price v. Illinois, 238 U.S. 446, 35 S. Ct. 892, 894, 59 L.Ed. 1400, the validity of a statute prohibiting the sale of food preservatives containing boric acid was challenged. The court said:

"The contention of the plaintiff in error could be...