Barrett v. State, Criminal 814

• Decision Date: 08 October 1934
• Docket Number: Criminal 814
• Citation: 44 Ariz. 270,36 P.2d 260
• Parties: J. H. BARRETT, Appellant, v. STATE, Appellee
• Court: Arizona Supreme Court

36 P.2d 260

44 Ariz. 270

J. H. BARRETT, Appellant, v. STATE, Appellee

Criminal No. 814

Supreme Court of Arizona

October 8, 1934

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Messrs Cusick & Lyons, for Appellant.

Mr Thos. J. Elliott, for the State.

OPINION

LOCKWOOD, J.

J. H Barrett, hereinafter called defendant, was convicted of selling beer in violation of Ordinance 714 of the City of Tucson, and has appealed. The case is before us on an agreed statement of facts, the material portions of which read as follows:

"That at all times mentioned therein the defendant J. H. Barrett was operating a restaurant as an employee of R. C. Howell, who was the owner of a lease on said premises at 41 South Stone Avenue, Tucson, Arizona, as aforesaid, and at all times the said R. C. Howell did have issued to him a restaurant license to sell liquors for consumption on the premises from the Arizona Tax Commission under Chapter 76, 1933, Session Laws of the State of Arizona. That at said time the said R. C. Howell also had issued to him a license from the City of Tucson to operate a restaurant and to sell therein all forms of spirituous liquors for consumption on the premises under Ordinance Number 714. That before the issuance of said licenses or either of them, he had fully complied with all the requirements of the laws of the State of Arizona, and the ordinances and regulations of the City of Tucson pertaining to restaurant owners.

"That on or about the 9th day of March, as aforesaid, the said Keefe and Knowles entered said premises, as aforesaid, at or about the hour of 6:32 P.M., and seated themselves in said restaurant known as the New Deal Cafe. That there was upon a table in said booth in which they were sitting a dish in which pretzels were usually kept, and a few pieces of which were left. That the said Keefe and Knowles ordered a glass of beer for each, which was served to them by the defendant. That the said defendant at the time he served the parties with the beer said, 'You do not want anything to eat, do you?' and that the said Keefe and Knowles, or either of them, replied, 'No,' and no food of any kind was served with said beer."

Ordinance 714, which defendant was accused of violating, reads so far as material, as follows:

"Section 7. It shall be lawful for any licensee holding a restaurant license to sell or serve spirituous liquors to patrons of such restaurant to be served and consumed only with meals furnished in good faith to such patrons."

"Section 1. The word 'meal' means the consumption of food of a nature and quantity sufficient for the maintenance of the consumer."

There are four assignments of error, which we consider in their inverse order. The fourth is that since the subject of the sale of intoxicating liquors is a state-wide concern, and the legislature has covered it fully by chapter 76, Session Laws of 1933, the city of Tucson is without authority to legislate thereon. In support of this contention, Clayton v. State, 38 Ariz. 135, 297 P. 1037, and Id., 38 Ariz. 466, 300 P. 1010, are cited. The rule laid down in that case may be summarized as follows:

"... Where the subject is one of local interest or concern, or where though not of local concern the charter or legislation confers on the city express power to legislate thereon, both jurisdictions may legislate on the same subject. Where, however, the subject is of state-wide concern, and the Legislature has appropriated the field and declared the rule, its declaration is binding throughout the state."

On a careful examination and comparison of Ordinance 714, supra, and chapter 76, supra, it is evident that the real purpose of the chapter is to secure revenue for the state of Arizona by requiring a license for engaging in the business of selling intoxicating liquor, and the purpose of the ordinance is to secure revenue for the city of Tucson from the same source and in the same manner. The various regulatory provisions of both enactments are very similar, and with few exceptions were obviously included only for the purpose of assisting in enforcing the revenue features. It is plain that the securing of revenue for a city is peculiarly and emphatically a matter of local concern, and unless the manner in which this is done is not authorized by its charter, or is in conflict with the general law, the mere fact that the state may seek revenue from the same source and in the same manner does not make the common source of revenue so purely a subject of state-wide concern that the city cannot also secure funds therefrom. The charter of Tucson expressly grants that city the right to secure revenue by a license tax on any kind of business whatsoever, and to provide for the manner of enforcing its payment. We see nothing in the ordinance which violates the rule laid down in the Clayton case.

The point...