City of Lyons v. Cooper

• Decision Date: 04 May 1888
• Citation: 39 Kan. 324,18 P. 296
• Parties: THE CITY OF LYONS et al. v. C. A. COOPER et al
• Court: Kansas Supreme Court

18 P. 296

39 Kan. 324

THE CITY OF LYONS et al. v. C. A. COOPER et al

Supreme Court of Kansas

May 4, 1888

Error from Rice District Court.

ON September 8, 1885, the mayor and council of Lyons, in Rice count--a city of the third class--enacted an ordinance requiring all druggists within the city of Lyons selling intoxicating liquors to pay a yearly license of $ 500. This action was commenced by C. A. Cooper and B. C. Ogden (partners doing business under the firm-name of Cooper &amp Ogden,) and J. S. Chase, and H. L. McJunkin, against C. M Rawlins, the mayor of Lyons, and also the councilmen of the city, to restrain the city of Lyons and the mayor and councilmen from the collection of the license tax imposed upon them as druggists. A temporary restraining order was granted at the issuance of the summons, but this injunction was afterward dissolved upon motion. Upon the trial, the ordinance imposing the license was adjudged to be null and void, and the injunction made perpetual.

The findings of the trial court were to the effect that at the date of the passage of the ordinance there were six drug stores in the city of Lyons; that four of these lawfully sold intoxicating liquors, having permits therefor; that the ordinance affected no person excepting the plaintiffs in this action; that before the enactment of the ordinance no person in Lyons was required to pay any license tax, excepting auctioneers and draymen; that the city of Lyons had about sixteen hundred inhabitants; that the license of $ 500 was a greater amount than any druggist selling intoxicating liquors in that city could afford to pay; that the tax was excessive and also unnecessary in amount for the use of the city; that it threw too great a burden upon a few persons; and that it was unjust and unreasonable. The mayor and city council excepted to the rulings of the court below, and bring the case here.

Judgment affirmed.

J. W. Brinckerhoff, city attorney, for plaintiffs in error.

White & Brinckerhoff, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The evidence in this case shows that the city of Lyons has about sixteen hundred inhabitants; that there are four drug stores in that city, having permits to sell intoxicating liquors for medical, scientific and mechanical purposes; that the gross profits of one of the principal druggists are about a thousand dollars a year; that his expenses for carrying on the business, not counting the cost of drugs or other articles sold, are over half of that amount; and that consequently the net profits are meager. It seems to be admitted that the license tax was not levied for revenue purposes alone. According to the evidence and findings of the court, it was not necessary for that purpose. The evidence further shows that the primary purpose of the license fee was for regulation, but the levying of such an excessive license makes the drug business in Lyons unprofitable, and therefore absolute prohibition is the result of the burden. The license is so excessive that it destroys the drug business, if carried on in connection with the sale of intoxicating liquors for the excepted purposes. If intoxicating liquor was permitted to be sold in this state as a beverage, we could not dispute the necessity of the regulation of the business indeed, the mayor and city council would then be empowered to wholly suppress the sale of intoxicating liquors by imposing upon the persons engaged in the sale thereof burdens in the way of license taxes difficult or impossible to be borne. Under the constitution and the statute of this state, however, intoxicating liquors cannot be sold as a beverage. Druggists are permitted to sell such liquors for medical, scientific and mechanical purposes only; and therefore the sale of intoxicating liquors for these purposes is not only legitimate, but necessary. Perhaps a druggist in Lyons could afford to pay a higher license than a baker, a butcher or a grocer doing the same amount of business, because usually the profits of a druggist are larger upon the sale of his drugs and articles than those of the others; but the license fee required of a druggist should be somewhat in proportion to that required of a baker, a butcher, or a grocer. The grant of authority to a mayor and city council to impose license fees for the...