Adams v. Cronin

• Decision Date: 05 May 1902
• Citation: 29 Colo. 488,69 P. 590
• Parties: ADAMS et al. v. CRONIN.
• Court: Colorado Supreme Court

69 P. 590

29 Colo. 488

ADAMS et al. v. CRONIN.

Supreme Court of Colorado

May 5, 1902

Appeal from district court, Arapahoe county.

Suit by Daniel Cronin against Frank Adams and others as the fire and policeboard of the city of Denver. From a decree for plaintiff, defendants appeal. Reversed.

H. M. Orahood, City Atty., and H. L. Ritter, Asst City Atty., for appellants.

Milton Smith, for appellee.

CAMPBELL C.J.

The district court issued a permanent writ of injunction restraining the defendants below, appellants here, from enforcing the provisions of sections 745 and 746 of article 15 of the General Ordinances of the City of Denver, upon the ground that they are unconstitutional, and that plaintiff had no adequate remedy at law. They read:

'Sec 745. Each and every liquor saloon, dram shop, or tippling house keeper, * * * who shall have or keep, in connection with or as part of such liquor saloon, dram shop or tippling house, any wine room or other place, either with or without door or doors, curtain or curtains, or screen of any kind, into which any female person shall be permitted to enter from the outside, or from such liquor saloon, dram shop, or tippling house, and there be supplied with any kind of liquor whatsoever, shall, upon conviction, be fined as hereinafter provided.

'Sec. 746. No person * * * having charge or control of any liquor saloon, or place where intoxicating or malt liquors are sold or given away, or any place adjacent thereto, or connected therewith in any manner whatsoever, either by doors or otherwise, shall suffer or permit any female person to be or remain in such liquor saloon, dram shop, tippling house, or other place where intoxicating or malt liquors are sold or given away, for the purpose of there being supplied with any kind of liquor whatsoever. No person owning or having charge or control of any liquor saloon, dram shop, or tippling house shall employ or procure, or cause to be employed or procured, any female person to wait or in any manner attend on any person in any dram shop, tippling house or liquor saloon, or in any place adjacent thereto or connected therewith, where intoxicating or malt liquors are sold or given away, nor shall any female person be or remain in any dram shop, tippling house, liquor saloon or place adjacent thereto or connected therewith, and wait or attend on any person, or solicit drinks in any such place.'

This ordinance was before our court of appeals in Walker v. People, 5 Colo.App. 38, 37 P. 29, and in City of Denver v. Domedian, 1 Colo. Dec. 441, 15 Colo.App. 36, 60 P. 1107. In the former case, under the evidence, and in the latter, upon the stipulated facts, it was held that the cases as made did not come within the prohibition. In speaking of these regulations, however, Mr. Justice Wilson, in the latter case, said: 'We agree that the ordinance is a good one, that its objects are most praiseworthy, and that its rigid enforcement would meet with the approval of every good citizen.' The question of its constitutionality was not there mooted, but this expression of Judge Wilson, if only dictum, is an indication of what his view would be had its validity been assailed. The chief object of the ordinance was there said to be to suppress the evils incident to the 'frequenting of saloons by females, and the attendant results so offensive to decency and the moral sense of the public.' The power to make these particular regulations was expressly conferred by the general assembly upon the city council of the city of Denver by the fifth clause of subdivision 12 of section 20 of the charter, which provides 'that no liquor saloon, dram shop or tippling house shall have or keep in connection with or as part of such saloon, tippling house or dram shop, any wine room or other place, either with or without doors, curtain or curtains, or screen of any kind, into which any female person shall be permitted to enter from the outside, or from such tippling house or dram shop, and there be supplied with any kind of liquor whatsoever.' Plaintiff does not deny that he has kept a wine room into which he permits women to enter and there be supplied with liquor, and suffers them to remain therein for that purpose, contrary to the specific provisions of these sections. Indeed he admits that he has violated the ordinance in both particulars, and proposes, unless prevented by the municipal authorities, to continue to do so. So that the principal question in the case is as to the constitutionality of the charter, rather than of the ordinance, for the latter confessedly is authorized by the charter. The ordinance is good if the charter provision is constitutional. Two questions are pressed by plaintiff for determination: First, was the case as made by the complaint one calling for the interposition of a court of equity? Second, is the charter provision constitutional?

1. The plaintiff does not contend that he is entitled to equitable relief by injunction unless the charter is void. Since, as appears later in the opinion, we hold it valid, it is not absolutely necessary to decide whether the admitted facts of the complaint warrant the granting of an injunction. This court does not look with favor upon the practice of restraining municipal authorities from executing municipal ordinances which so vitally concern the tranquility of the community and good order of society. While it is true, as said in the case of City of Denver v. Beede, 25 Colo. 172, 54 P. 624, that in exceptional cases a court of equity will restrain a prosecution at law when the legal question involved is the same at law as in equity, such is not the general rule; and a clear case should be made out before such extraordinary relief is awarded. It is not necessary here to indicate in what cases such relief will, and in what it will not, be given. But it is doubtful if this complaint is so essentially different from that in the Beede Case as to render inapplicable the rule there announced. We mention this point for the purpose of again emphasizing our view that only in extreme and exceptional cases should a court of equity interfere with municipal authorities in the enforcement of such ordinances.

2. So far as the question at issue is concerned, these sections of the ordinance practically prevent a saloon keeper from permitting women to frequent what are called wine rooms, there to be supplied with liquor; and it is only with respect to that feature of the ordinance that we are at present concerned, although it may be that the principles which govern this particular clause of the enactment equally apply to the others. As we understand the argument of his counsel, plaintiff's position is that these sections are unreasonable because they discriminate against women solely on account of their sex; that they are unconstitutional, in that they deprive defendant of his property without due process of law, destroy his right to pursue a lawful calling, and deny to him the equal rights and privileges which every citizen has, both under the federal and our state constitutions; that they violate section 423, Mills' Ann. St., which preserves to all the citizens of the state equal enjoyment of accommodations, advantages, facilities, and privileges of inns, restaurants, churches, barber shops, public conveyances, theaters, and other places of public resort or amusement. With respect to the latter contention, it is sufficient merely to say that if this section, when enacted, gave to women the right equally with men to frequent saloons, and if such right depended solely upon statute, it was taken away by the general assembly when, at a later date, it adopted a charter for the city of Denver, whereby authority was conferred upon the city to deprive women of the enjoyment of the so-called right.

Probably plaintiff's theory may be made still more clear by a summary of the argument of his counsel. He argues that the saloon keeper has as much right to sell liquor to women and to allow them within his place of business, whether in the saloon proper or in a room adjacent thereto, as he has to sell to men and to permit them within such places; that a woman has as much right to buy and drink liquor as men, and if so, the keeper of a saloon has the correlative right to sell to her with as much freedom as to men; that since women have been given the right of suffrage in this state, and in all respects stand upon a legal equality with men, they have the same right as men to the pursuit of happiness and to avail themselves of all the rational enjoyments that are open to their brothers, among which is the right to enter saloons and there buy liquor. Otherwise expressed, counsel says, if a woman has a right to go into a saloon and get a drink, the same as a man, which he insists is true, the saloon keeper has a right to sell her that drink, and any ordinance which prevents him from doing so is an invasion of his civil and property rights. If she, equally with a man, has the right to buy and the saloon keeper may not sell to her, he is deprived of a property right without due process of law; i. e., the right to carry on a lawful business with customers entitled to patronize him. If this ordinance was passed under cover of the incidental powers of the city, and if it also, appeared to the court to be unreasonable, unfair, partial, arbitrary, or oppressive, it might be nullified. But if it is subject to such objections only, which does not seem to us to be true, still it could not be set aside upon any of those grounds, for the general assembly has expressly given to the city council authority to pass it in the form in which it is expressed, and if constitutional it must stand. Phillips v. City of Denver, 19 Colo. 183, 34 P. 902, 41...