City of Lawrence v. Monroe

• Decision Date: 08 November 1890
• Citation: City of Lawrence v. Monroe, 24 P. 1113, 44 Kan. 607 (Kan. 1890)
• Parties: WILLIAM MONROE v. THE CITY OF LAWRENCE
• Court: Kansas Supreme Court

24 P. 1113

44 Kan. 607

WILLIAM MONROE v. THE CITY OF LAWRENCE

Supreme Court of Kansas

November 8, 1890

Appeal from Douglas District Court.

PROSECUTION for selling cider in less quantities than one gallon contrary to an ordinance of the city of Lawrence. From a conviction at the May term, 1890, the defendant Monroe appeals. The material facts appear in the opinion.

Judgment affirmed.

S. C Russell, for appellant.

W. C Spangler, for appellee.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

William Monroe was convicted in the police court of the city of Lawrence for selling cider in less quantities than one gallon, contrary to an ordinance of the city. He appealed to the district court, where another trial and conviction followed. The judgment of the court was that he pay a fine of $ 50 and the costs of the prosecution, from which judgment he appeals to this court, and insists that the ordinance under which he was prosecuted and convicted is invalid. It provides that --

"No person in this city shall barter, sell or give away cider in less quantities than one gallon, or permit or allow the same to be drank at any store, stand, or other place of sale. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and fined in any sum not less than $ 10 nor greater than $ 100."

The appellant contends that cider is a harmless and wholesome drink, and that the restriction upon its sale is unreasonable, an unlawful restraint of trade, in contravention of a common right, and is, therefore, unconstitutional. The ordinance was manifestly not enacted in pursuance of the prohibitory law, nor for the regulation of the sale of intoxicating liquors. The ordinance inferentially permits the sale of cider in quantities of a gallon or more, and the penalty for its violation may be $ 10, without imprisonment. These provisions are not consonant with the law prohibiting and punishing the unlawful sale of intoxicating liquors, and hence we must infer that the ordinance was passed for the purpose of controlling the sale and disposition of cider that was not intoxicating. It will be observed that the ordinance regulates rather than prohibits the sale of cider, and the legislative power to regulate the sale of an article or liquid which in some stages is harmless and in others hurtful is no longer open to question. The juice of apples quickly changes from fresh to hard cider, and hard cider is presumptively not only a fermented but an intoxicating liquor. (The State v. Schaefer, ante, p. 90; same case, 24 P. Rep. 92.) It is difficult to show when the change occurs, and when it reaches such a stage as will produce intoxication. It may have been thought that the drinking of cider might foster a taste for strong liquors, and that if the unrestricted sale of cider by the glass was permitted, the officers might be easily deceived as to the character of the drinks sold, and that a tippling-shop might be carried on under the guise of a place to sell cider. In the interest of the health of the people, and the peace and good order of the community, it was deemed wise to regulate the traffic. To sell it by the glass, and allow it to be drank upon the premises where sold, was deemed to be subversive of good order, and dangerous to the health and morals of the people, and hence the city imposed a regulation that it should not be sold in less quantities than one gallon, and should not be drank at the place of sale. Such a regulation violates no private right, and does not unreasonably or improperly restrain trade. (Powell v. Commonwealth, 127 U.S. 678; Stokes v. City of New York, 14 Wend. 88; Mobile v. Yuille, 3 Ala. 137; The State v. Campbell, 64 N.H. 402, 13 A. 585, and note.)

The principal contention however is, that the power to regulate the sale was not conferred on the city council. There is no provision of statute directly authorizing the enactment of such an ordinance, but the legislature, after conferring power to pass ordinances for certain specific purposes, authorizes city councils "to enact and make all such ordinances, bylaws, rules and regulations, not inconsistent with the laws of the state, as may be expedient for maintaining the peace, good government and welfare of the city and its trade and commerce." (Gen. Stat. of 1889, P 824.) The same section of the statute provides that the ordinances passed in pursuance of this authority shall be enforced by suitable penalties, there prescribed. The ordinance under consideration is not repugnant to the constitution or laws of the state; and, as we have seen, the regulation of the same is neither unreasonable nor unjust. Every statute of the state shows the solicitude of the law to protect the health, and morals of the people, and preserve the peace and good order of the communities, and it is manifest that the legislature intended that ample authority should be conferred either by express grant or by virtue of the general powers to carry out this purpose. Instead of specifically defining every regulation which might be necessary to the health, safety, peace and convenience of the public, the legislature enacted the general-welfare clause; and it seems to us that it furnishes sufficient authority for the...