Anderson v. City of St. Paul, 34163.

Citation226 Minn. 186,32 N.W.2d 538
Decision Date07 May 1948
Docket NumberNo. 34436.,No. 34163.,34163.,34436.
PartiesANDERSON v. CITY OF ST. PAUL et al.
CourtSupreme Court of Minnesota (US)

Appeal from District Court, Ramsey County; Carlton McNally and Albin S. Pearson, Judges.

Proceeding between Clara Anderson and the City of St. Paul and others involving constitutionality of provisions of ordinance of City of St. Paul prohibiting any woman, except a licensee, wife of a licensee, or manager of an establishment if licensee is in armed forces from dispensing intoxicating liquor behind a bar in any establishment in which intoxicating liquor is sold at retail for consumption on the premises. From adverse order and judgment, Clara Anderson appeals.

Affirmed.

Paul C. Thomas, of St. Paul, for appellant.

Bruce J. Broady, City Atty., and Marshall F. Hurley, Asst. City Atty., both of St. Paul, for respondents.

PETERSON, Justice.

This case came to the writer upon reassignment.

On these appeals plaintiff challenges as unconstitutional the provisions of an ordinance of the city of St. Paul prohibiting any woman except a licensee, wife of a licensee, or the manager of an establishment if the licensee is in the armed forces from dispensing intoxicating liquor behind a bar or counter in any establishment in which intoxicating liquor is sold at retail for consumption on the premises. Prior to the enactment of the ordinance plaintiff had been steadily employed tending bar in the barroom of the Frederic Hotel in St. Paul. Her duties consisted of dispensing intoxicating liquors behind the bar at retail sale for consumption on the premises. Because the ordinance prohibits plaintiff from working at her occupation as a bartender, she contends that it violates numerous constitutional provisions. We shall notice only those contentions which were argued, viz.:

(1) The ordinance deprives plaintiff of her property without due process of law in violation of Minn.Const. art. 1, § 7,

M.S.A.;

(2) It deprives her of her liberty and property without due process of law in violation of U.S.Const. Amend. art. XIV, § 1; and

(3) It deprives her of the equal protection of the laws in violation of U.S.Const. Amend. art. XIV, § 1.

On January 18, 1934, the city council of the city of St. Paul adopted ordinance No. 7537,1 regulating the "on sale" retail liquor business, the title of which declares that it is "an emergency ordinance rendered necessary for the preservation of the public peace, health and safety." The ordinance regulates in detail the business in question. It prohibits certain activities and conduct such as dancing, singing, vaudeville entertainment, and keeping pool and billiard tables. Section 23(g) provides: "Every licensee is hereby made responsible for the conduct of his place of business, and required to maintain order and sobriety in such place of business." See State v. Sobelman, 199 Minn. 232, 236, 237, 271 N.W. 484, 486.

On May 11, 1945, the ordinance was amended by ordinance No. 8604, paragraph (e)2 of which reads: "No person under twenty-one (21) years of age shall be employed in any rooms constituting the place in which intoxicating liquors are sold `on-sale'. No woman except a licensee or wife of a licensee, or the manager of the establishment if the licensee is in the armed forces, shall dispense liquors behind a bar or counter in an establishment in which intoxicating liquors are sold `on-sale'." (Italics supplied.) The italicized portion is assailed here by plaintiff.

1. Since this action involves the constitutionality of a city ordinance, we point out, as we said in City of Duluth v. Cerveny, 218 Minn. 511, 516, 16 N.W.2d 779, 782, that the business of selling intoxicating liquor at retail for use as a beverage is peculiarly subject not only to state but to local regulation.

2. The due process clause of our state constitution is not more restrictive than the due process clause of the Fourteenth Amendment to the federal constitution. State v. Northwest Airlines, Inc., 213 Minn. 395, 7 N.W.2d 691, affirmed 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283, 153 A.L.R. 245, rehearing denied 323 U.S. 809, 65 S.Ct. 26, 89 L.Ed. 645. Hence, decision under the Fourteenth Amendment will dispose also of the questions raised so far as our state constitution is concerned.

3. In sweeping language, the Supreme Court of the United States has held that selling intoxicating liquor for beverage purposes is not a right protected by the Fourteenth Amendment to the constitution of the United States. Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304; 30 Am.Jur., Intoxicating Liquors, § 205, and cases cited in note 1. In the Crane case the court said, 245 U.S. 307, 38 S.Ct. 99, 62 L.Ed. 309: "It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, puchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment." (Italics supplied.)

Selling intoxicating liquor for use as a beverage is a mere privilege subject to the police power of the state. Giozza v. Tiernan, 148 U.S. 657, 13 S.Ct. 721, 37 L.Ed. 599; Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346; 30 Am.Jur., Intoxicating Liquors, §§ 19, 20, 275. Prohibiting the sale of intoxicating liquor for use as a beverage does not deprive any person of liberty or property and consequently does not constitute a violation of the due process clause of the Fourteenth Amendment. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Abeln v. City of Shakopee, 224 Minn. 262, 28 N.W.2d 642. Likewise, regulation of the privilege of selling intoxicating liquor for use as a beverage, imposing terms and conditions governing the business, involves no deprivation in a constitutional sense of the liberty or property of those engaged in the business. See 30 Am.Jur., Intoxicating Liquors, § 20, note 16. As Mr. Justice Field said in Crowley v. Christensen, 137 U.S. 86, 91, 11 S.Ct. 13, 15, 34 L.Ed. 620, 624: "* * * There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority."

In Mayes v. Byers, 214 Minn. 54, 7 N. W.2d 403, 144 A.L.R. 821, we expressed views in full accord with those announced in the Crowley case.

4. Because prohibiting one from engaging in the business of selling intoxicating liquor does not constitute a deprivation of either liberty or property, state and local regulations prohibiting the employment of women in places where intoxicating liquor is sold for consumption on the premises do not deprive women of liberty or property. City of De Ridder v. Mangano, 186 La. 129, 171 So. 826; Bergman v. Cleveland, 39 Ohio St. 651; State v. Considine, 16 Wash. 358, 47 P. 755. In Fitzpatrick v. Liquor Control Comm., 316 Mich. 83, 25 N.W.2d 118, 172 A.L.R. 608, and Annotation, it was held that prohibiting or regulating the employment of women in such places did not deprive women of property without due process or deny them the equal protection of the laws.

In Goesaert v. Cleary, D. C., 74 F.Supp. 735, a three-judge federal court (one judge dissenting) held in an action to enjoin the enforcement of the Michigan statute that the statute was valid as against objections that it violated the requirements of due process and equal protection, following the Michigan court's decision in the Fitzpatrick case, and stated that, while that decision was not controlling upon a federal court, it was "persuasive."

In the Annotation in 172 A.L.R. 620, following the Fitzpatrick case, the validity and construction of ordinances regulating the employment of women in places where intoxicating liquor is sold at retail are elaborately considered. With the single exception of Brown v. Foley, 158 Fla. 734, 29 So.2d 870, the cases support the view that an ordinance such as the one here under consideration is valid. Referring to the Brown v. Foley case, the Annotation states: "The situation in Florida seems to be an anomalous one." 172 A.L.R. 626.

The authorities, with but a single exception, Matter of Maguire, 57 Cal. 604, 40 Am.Rep. 125, hold that prohibiting the employment of women as bartenders, waitresses or otherwise in places where intoxicating liquor is sold to be drunk on the premises does not abridge any privilege or immunity of women as citizens of the United States in violation of the Fourteenth Amendment or deny to them the equal protection of the laws in violation of the equal protection clause thereof. Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365; In re Considine, C.C., 83 F. 157; Ex parte Felchlin, 96 Cal. 360, 31 P. 224, 31 Am.St.Rep. 223; Foster v. Board of Police Com'rs, 102 Cal. 483, 37 P. 763, 41 Am.St.Rep. 194; City of Hoboken v. Goodman, 68 N.J.L. 217, 51 A. 1092; Annotations, 18 L.R.A.,N.S., 657, 48 L. Ed. 365, 49 L.R.A. 111; 30 Am.Jur., Intoxicating Liquors, § 335; 48 C.J.S., Intoxicating Liquors, § 39; 2 Cooley, Constitutional Limitations, 8th Ed., p. 1342, note 1. The language used in the authorities cited is not confined to the precise objections there considered, but is broad enough, like that used in the Crane case, supra, to indicate that the prohibition of the employment of women in such places violates no provision of the Fourteenth Amendment, including the due process clause. That conclusion is derived from the premise that a person has no inherent or constitutional right to sell intoxicating liquor at all, much less to do so because one engaged in the business happens to be a woman. Because...

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