City Of Danville v. Hatcher

• Decision Date: 11 June 1903
• Citation: 101 Va. 523,44 S.E. 723
• Parties: CITY OF DANVILLE. v. HATCHER.
• Court: Virginia Supreme Court

44 S.E. 723

101 Va. 523

CITY OF DANVILLE.

v.HATCHER.

Supreme Court of Appeals of Virginia.

June 11, 1903.

INTOXICATING LIQUORS — REGULATION — POLICE POWER—MUNICIPAL CORPORATIONS-LICENSE—CONSTITUTIONAL LAW.

1. The regulation of the sale of intoxicating liquors is wholly within the police power of the state, and the traffic is not one of the privileges or immunities of citizenship guarantied and protected by the United States Constitution or the fourteenth amendment.

¶ 1. See Constitutional Law, vol. 10, Cent. Dig. § 631.

2. The courts have nothing to do with the question of whether or not legislation is wise and proper. The only question they have to deal with is one of power under the Constitutions of the state and the United States.

3. In the absence of constitutional restrictions, the Legislature may invest municipal corporations with the police power of the state in whole or in part.

4. The power of a court to declare an ordinance unreasonable, and therefore void, is restricted to cases in which the Legislature has enacted nothing upon the subject-matter of the ordinance, and consequently to cases in which the ordinance was passed under the supposedincidental power of the corporation merely, and no such power exists where the municipal corporation is authorized to pass ordinances of a specific and defined character.

5. When a city council is vested with full power over a subject, and the mode of the exercise of such power is not limited by the charter, it may exercise it in any manner most convenient.

6. The fact that charter powers given a city to regulate the sale of intoxicating liquors are found in a section giving power to the city to grant or refuse licenses to insurance companies and others, does not render such provision void, though the provision in respect to the insurance companies and other business is void.

7. Where a city charter gives it the power to wholly prohibit the sale of intoxicating liquors or to license it under such regulations as the council may prescribe, the only limitation on such grant is its exercise in good faith.

Appeal from Corporation Court of Danville.

Bill by one Hatcher against the city of Danville. Decree for plaintiff, and defendant appeals. Reversed.

Peatross & Harris, for appellant.

Withers & Green, for appellee.

WHITTLE, J. This appeal involves the validity of certain ordinances adopted by the city of Danville for the regulation of the retail whisky traffic of that city.

The case made by appellee in his bill is that he had been a retail liquor dealer in the city of Danville, and is the owner of considerable property, valuable only in that business, consisting of a stock of liquors and wines, and certain fixtures, mirrors, bar counters, and other usual appurtenances of a retail liquor store; and also of a lease on a building for an indefinite period, in which his bar fixtures have been erected for the conduct of his business. That it had been his intention to apply for license for the fiscal year commencing May 1, 1902, but that he is deterred from doing so by a threat on the part of the city authorities to enforce against him certain illegal and unreasonable ordinances, which, if carried out, would destroy his business, and render valueless his property.

The substance of the ordinances assailed is: (1) That every barroom, saloon, store, or other place licensed, used, or kept for the sale of wine, ardent spirits, malt liquors, or other intoxicating drinks in the city shall be closed at 10 o'clock p. m., and remained closed until 5 o'clock a. m. the following day; and the ordinance prohibits the sale or disposition of those articles between the hours named.

After the institution of this suit the city council amended the ordinance by substituting for the hours indicated 7 o'clock p. m. and 6 o'clock a. m. The ordinance, as amended, is made the subject of complaint by supplemental bill.

(2) That barkeepers and all persons who are licensed to sell wine, etc., in the city shall, during the time they are required by law to keep their places of business closed, remove all screens and obstructions to view from the aisles, passageways, etc., within their respective places of business, and shall be required to keep the same lighted. The ordinance likewise provides that no person, including the owners or keepers of such barrooms, etc., shall go into or frequent them during the time they are required to be closed, except that they may, on Sunday mornings or other days in which they are required to be closed, enter the same to extinguish the light, and on the evening of such days enter to relight the same.

(3) The license tax is fixed at $500, and the licensees are required to remove all screens, doors, shaded windows, curtains, and obstructions to a full view of their places of business day and night; also that all bars shall be placed at a distance not further than 12 feet from the door. It is provided that violations of these several ordinances shall be punished by fine.

The bill further charges that the ordinances are unreasonable and oppressive, and were passed by the council without authority, for the purpose of harassing complainant, and forcing him to unreasonable expenditures of money, and depriving him of the lawful exercise of his personal rights; and its prayer is that they be declared null and void, and that the city be enjoined from their enforcement

The city, by its answer, maintains that it has full and complete power under its charter to enact the ordinances complained of, and to refuse licenses to sell liquor altogether. It likewise denies that the ordinances were passed for the purpose and with the improper motive ascribed to it.

The trial court granted the injunction prayed for, and at the hearing perpetuated the same, except as to the ordinances requiring barrooms, etc., to be closed from 10 o'clock p. m. until 5 o'clock a. m., and imposing a license of $500.

From that decree the city appealed.

In order to arrive at a proper solution of the question involved in this controversy it is needful to inquire:

(1) As to the power of the state with respect to intoxicating liquors; and (2) to what extent it has conferred that power on the council of the city of Danville.

The latest deliverance by this court in relation to the first branch of the inquiry will be found in the case of Council of the Town of Farmville v. Walker (decided at the March term, 1903) 43 S. E. 55S.

It is there said: "That the regulation of the sale of intoxicating liquors is within the police power of the state is established, if not literally, by all the cases where the subject has been considered; certainly by an overwhelming array of authority."

It has been repeatedly decided that the subject is wholly within the police power of the Legislature, and that the traffic is not one of the privileges or immunities of citizenship guarantied and protected by the United States Constitution or the fourteenth amendment thereto.

It may be entirely prohibited; and its regulation, when permitted, is absolutely within the discretion of the several states. These principles are sustained by the Supreme Court of the United States in a long line of decisions, rendered both before and after the adoption of the fourteenth amendment. Bartemeyer v. Iowa, 85 U. S. 129, 21 L. Ed. 929; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Mugler v. Kansas, 123 U. S. G23, 8 Sup. Ct. 273, 31 L. Ed. 205; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Huckless v. Childrey, 135 U. S. 662, 10 Sup. Ct. 972, 34 L. Ed. 304; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed. 599.

In Kidd v. Pearson it was held that a state has the right to prohibit or restrict the manufacture of intoxicating liquors within its limits, to prohibit all sale and traffic in them in the state, to inflict penalties for their manufacture and sale, and to provide regulations for the abatement as a common nuisance of the property used for such forbidden purposes.

It is further declared that the right of a state to exercise the foregoing powers is no longer an open question before that court.

The distinction between the power of a state to levy taxes for revenue, and, in the exercise of its police power, to exact a license tax for the privilege of carrying on the business of a retail liquor dealer, is strikingly illustrated by the cases of Royall v. State of Virginia, 116 U. S. 572, 6 Sup. Ct. 510, 29 L. Ed. 735, and Huckless v. Childrey, 135 U. S. 662, 10 Sup. Ct. 972, 34 L. Ed. 304.

In the former case a Virginia statute requiring lawyers to pay a license tax for the privilege of practicing law, in money and not in coupons, was declared to be a violation of the contract of the state to receive coupons in payment of all "taxes, debts, dues and demands due the state, " and therefore void; while in the latter the validity of a statute which required a license for the sale of intoxicating liquors to be paid in money, and not in coupons, was sustained.

In the case of Huckless v. Childrey the court said: "It is conceded that the state might, in her discretion, absolutely abolish the sale of spirituous liquors, or prescribe on what terms they shall be sold. In this view, there does not seem to be any violation of the obligation of the state in requiring the tax which is imposed to be paid in any manner whatever—in gold, in silver, in bank notes, or in diamonds.

"The manner of payment is part of the condition of the license intended as a regulation of the traffic. It would be very different if the business sought to be followed was one of the ordinary pursuits of life, in which all persons are entitled to engage.

"License taxes imposed upon such pursuits and professions are imposed purely for the purpose of revenue, and not for the purpose of regulating the traffic or the pursuit."

There are also numerous decisions of courts of last resort of the states which...