City of Duluth v. Cerveny

• Decision Date: 08 December 1944
• Docket Number: No. 33852.,33852.
• Citation: 16 N.W.2d 779,218 Minn. 511
• Parties: CITY OF DULUTH v. CERVENY.
• Court: Minnesota Supreme Court

16 N.W.2d 779

218 Minn. 511

CITY OF DULUTH v. CERVENY.

No. 33852.

Supreme Court of Minnesota.

December 8, 1944.

Appeal from Municipal Court of Duluth; Richard M. Funck, Judge.

John E. Cerveny was convicted of the offense of possessing intoxicating liquor for the purpose of sale in violation of an ordinance of the City of Duluth, and from orders denying his motions to vacate judgment of guilty and for a judgment of not guilty or a new trial and for an order directing chief of police forthwith to restore seized liquor to defendant, he appeals.

Affirmed.

John F. Ball, of Duluth, and McMeekin & Quinn, of St. Paul, for appellant.

Harry E. Weinberg, City Atty., and Ray W. Bruess, Asst. City Atty., both of Duluth, for respondent.

YOUNGDAHL, Justice.

On February 10, 1944, in the municipal court of Duluth, defendant was convicted of the offense of keeping intoxicating liquor in his possession for the purpose of sale in violation of a city ordinance. He was brought into court on a warrant issued under Minn.St.1941, § 340.11 (Mason St.1940 Supp. § 3200-25). A search warrant was also obtained under § 340.65 (§ 3200-81), pursuant to which defendant's premises were searched and about 160 cases of intoxicating liquor seized by police officers executing the warrant. Defendant was charged under the ordinance with sale and possession for sale of liquor. During the trial, he pleaded guilty to the charge of sale and was found guilty on the charge of possession for sale. Upon conviction on the charge of possession for sale, he was sentenced to pay a fine of $100, or, in default of payment, 60 days in the county work farm, and the court ordered the liquor kept in the custody of the police department until further order of the court. Defendant moved to vacate the judgment of guilty and for a judgment of not guilty or a new trial, and for an order directing the chief of police forthwith to restore the liquors to defendant. Both motions were denied, and this appeal is from the orders denying said motions.

Defendant owns and operates a restaurant at 220 East Superior street in Duluth known as "Jack's Cafe." The building in which the business is conducted consists of two stories and a basement. On the second floor are defendant's living quarters; on the first floor he operates a restaurant business. The basement is used as a storeroom. For some years prior to April 30, 1943, defendant had a license to sell intoxicating liquors on said premises. For some reason which the record does not disclose, the license was not renewed when it expired on April 30, 1943. A large stock of intoxicating liquor on hand at the expiration date of the license was stored under lock and key in the basement of the building. On December 12, 1943, defendant sold to a police officer one quart of 100 proof Blue Ribbon Kentucky Straight Bourbon Whiskey, and on January 18, 1944, one quart of 90 proof Silver Label Glenmore Kentucky Straight Bourbon Whiskey. Defendant had no license to sell liquor at the time. Both brands of whiskey sold are included in the liquor seized by the police officers. In executing the search warrant, the officers seized about 160 cases of different brands of liquor valued at between $7,500 and $8,000. Defendant paid the federal internal revenue tax on the seized liquor in June or October, 1943, in the sum of $1,688.

1. Defendant contends that the city of Duluth did not have the power to enact an ordinance providing for the search, seizure, and forfeiture of intoxicating liquor, because there is no express provision in the charter authorizing such an ordinance. Duluth operates under a home-rule charter. Under its latest charter (1912 Home Rule Charter), the city is granted broad powers. It has, in addition to and not limited by the enumeration of powers in the 1900 charter, "all powers, functions, rights and privileges usually exercised by, or which are incidental to, or inhere in, municipal corporations of like power and degree; also all municipal power, functions, rights, privileges and immunities of every name and nature whatsoever." This general grant of power and authority is tantamount to that granted under a general welfare clause. State ex rel. Zien v. City of Duluth, 134 Minn. 355, 159 N.W. 792, Ann.Cas.1918A, 683; Northern Pac. R. Co. v. Weinberg, D.C., 53 F.Supp. 133.

In his brief, defendant states: "Of course, it is conceded that the City of Duluth has the power both from its charter and by the State law to enact an ordinance regulating in all reasonable respects the sale, dispensing and license of intoxicating liquors within its corporate limits."

Thus defendant concedes that Duluth has the power under the charter to enact an ordinance regulating the sale of liquor, but asserts that such authority did not include the power of forfeiture. With respect to the Duluth liquor ordinance,¹ it is sufficient to say that, in addition to the provisions prohibiting the sale and possession for sale of intoxicating liquors, it provides that upon a complaint being made before a judge of the municipal court charging a violation of the ordinance, the judge, in addition to issuing a warrant for the arrest of the alleged violator, shall also issue a search warrant authorizing a search of the premises where the liquors are claimed to be illegally possessed. The ordinance follows generally the pattern of the state law with reference to search and seizure, except that upon a conviction under the ordinance the seized liquor is forfeited to the city of Duluth, sold to the highest bidder by the chief of police, and the proceeds paid into the public safety fund of the city (section 28 of ordinance), whereas, under the state law, the liquor is sold under order of court and the proceeds paid into the county school fund. Section 340.67 (§ 3200-83). Defendant asserts that the forfeiture provision of the ordinance is invalid because there was no express power granted in the charter to enact such an ordinance. We believe that there is legislative authority for this ordinance as it relates to forfeiture. Under the "all powers" provision of its charter, Duluth was granted broad municipal power "of every name and nature whatsoever." In the Zien case, we had occasion to comment on this "all powers" provision as follows (134 Minn. at page 360, 159 N.W. at page 794): "* * * What is meant by `all municipal power' is not defined, but as here used the expression is obviously broad enough to include all those powers which are generally recognized as powers which may properly be given to and be exercised by municipal corporations." By the amendment of L. 1937, c. 185, the legislature incorporated into the Minnesota statutes the search, seizure, and forfeiture provisions. Section 340.65 (§ 3200-81). Defendant does not claim that the Legislature did not have the power to enact such legislation or that the state could not delegate such authority to Duluth. His contention is that the delegation of authority must be specifically declared. The Legislature having such authority and the subject being one of municipal concern, the power is one of which the city was lawfully possessed under the broad charter provisions. In Park v. City of Duluth, 134 Minn. 296, 298, 159 N.W. 627, 628, this court said: "* * * The people of a city in adopting a charter have not power to legislate upon all subjects, but as to matters of municipal concern they have all the legislative power possessed by the Legislature of the state, save as such power is expressly or impliedly withheld."

See, also, State ex rel. City of Saint Paul v. Oehler, ___ Minn. ___, 16 N.W.2d 766, where the Park case is cited with approval.

The power properly to effectuate the enforcement of the liquor laws by use of the search warrant and forfeiture provisions was not impliedly withheld by the state, but it seems to us clearly granted by the "all powers" provision. The retail liquor traffic is a type of business peculiarly subject not only to state but to local regulation. In Thielen v. Kostelecky, 69 N.D. 410, 416, 287 N.W. 513, 516, 124 A.L.R. 820, the court said: "* * * The liquor traffic is one properly subject to governmental control, and the retail liquor traffic has generally been deemed one peculiarly subject not only to state but to local regulation." In discussing the meaning of the word "regulated" as used in the provision of the Liquor Control Act of North Dakota conferring on governmental bodies of cities the authority to regulate the retail sale of liquor, the court further said, 69 N.D. at page 417, 287 N.W. at page 517: "The power `to regulate the retail sale of alcohol and alcoholic beverages' conferred upon the governing board of a city includes the power to prescribe such reasonable rules and impose such reasonable restrictions as to the manner and circumstances in which the business shall be conducted as will tend to promote order and protect the public from harm." In 33 C. J., Intoxicating Liquors, § 70, it is stated: "* * * When a municipal corporation is invested with power to license or regulate the sale of intoxicating liquors, it has implied authority to make all such ordinances as may be necessary to make the grant of power effectual, and to preserve the public peace, good order and security against dangers arising from the traffic in such liquors. It is only required that such ordinances should be within the scope of the powers granted, and not unreasonable, unjust, or unduly oppressive, or unfairly discriminating."

It is apparent that the Legislature by the broad provisions in the charter intended to delegate a large measure of police power to Duluth for the protection of life, health, and safety of its citizens. A city exercises police power within its jurisdiction to practically the same extent as the state itself. This power is not confined to the narrow limits of precedents based on conditions of a past era. Rather, it is a power which changes to meet changing conditions,...