City of Tacoma v. Keisel

• Citation: 68 Wash. 685,124 P. 137
• Parties: CITY OF TACOMA v. KEISEL.
• Decision Date: 08 June 1912
• Court: United States State Supreme Court of Washington

124 P. 137

68 Wash. 685

CITY OF TACOMA v. KEISEL.

Supreme Court of Washington

June 8, 1912

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Prosecution by the City of Tacoma against Gus W. Keisel. From a judgment for plaintiff, defendant appeals. Affirmed.

Sullivan & Christian and Leo & Flaskell, for appellant.

T. L. Stiles, F. R. Baker, and F. M. Carnahan, all of Tacoma, for respondent.

PARKER J.

This defendant, being the proprietor of a saloon situated in the city of Tacoma in which he was licensed by the city to sell intoxicating liquors, was charged with selling intoxicating liquor in his saloon to one person to be drunk on the premises by another person, in violation of the following ordinance of the city:

'An ordinance to regulate the sale of intoxicating liquors in the city of Tacoma by the prohibition of treating, and to provide a penalty for the violation thereof.

'Be it ordained by the city of Tacoma:

'Section 1. Every licensed saloon in the city of Tacoma shall be conducted on the plan of 'No Treating'; and every owner of any such saloon shall post and keep posted in a conspicuous place within the bar of such saloon a white placard on which shall be printed in black letters not less than three (3) inches high, the words, 'No Treating Saloon.'

'Sec. 2. It shall be unlawful for the owner of any licensed saloon in the City of Tacoma, or any agent, servant of employé of such owner, to sell any intoxicating liquor to any person to be drank on the premises by any other person, or to deliver to any person, other than the one buying the same, any intoxicating liquor to be drank on the premises.

'Sec. 3. Every owner, or agent, servant or employé of such owner, of a licensed saloon in the City of Tacoma, who shall violate any of the provisions of this ordinance, shall, upon conviction thereof, be fined in any sum not exceeding one hundred dollars.'

Having been tried and convicted in the police court of the city, he appealed therefrom to the superior court for Pierce county, where he was again convicted, from which last conviction he has appealed to this court. The questions raised upon this appeal relate only to the validity of the ordinance; the principal contention being that it is void for want of power in the city to enact it. Tacoma is a city of the first class having more than 20,000 inhabitants, and as such has framed and adopted a charter for its own government in pursuance of section 10, art. 11, of the state Constitution, and the act of the Legislature of 1890 commonly called the 'Enabling Act' (Laws 1890, p. 215; Rem. & Bal. Code, § 7494 and following). Section 5 of that act, being section 7507 of Rem. & Bal. Code, provides: 'Any such city shall have power: * * * (32) To regulate the selling or giving away of intoxicating, malt, vinous, mixed or fermented liquors; Provided, that no license shall be granted to any person or persons who shall not first comply with the general laws of the state in force at the time the same is granted; (33) to grant licenses for any lawful purpose; * * * (34) to regulate the carrying on within its corporate limits of occupations which are of such a nature as to affect the public health or the good order of said city, or to disturb the public peace, and which are not prohibited by law, and to provide for the punishment of all persons violating such regulations, and of all persons who knowingly permit the same to be violated in any building or upon any premises owned or controlled by them; * * * (36) to provide for the punishment of all disorderly conduct and of all practices dangerous to public health or safety, and to make all regulations necessary for the preservation of public morality, health, peace and good order within its limits, and to provide for the arrest, trial and punishment of all persons charged with violating any of the ordinances of said city; but such punishment shall in no case exceed the punishment provided by the laws of the state for misdemeanors.' The city charter provides for the exercising of these powers by ordinance.

It is argued by counsel for appellant that the powers given to the city by the provisions to the enabling act above quoted do not confer upon it the power of prohibition of the liquor traffic, and that the validity of the ordinance can be sustained only upon the theory that the city possesses the power of prohibition. The authorities cited by counsel seem to sustain the view that the power of absolute prohibition is not conferred by the power to regulate only, which apparently is the extent of the power given by the language of the enabling act. Black on Intoxicating Liquors, § 227; Woollen & Thornton on the Law of Intoxicating Liquors, § 278. This is conceded to be the law by counsel for the city, and they do not contend that the city possesses the power from any other source. So we need not further concern ourselves with the question of the city's power of absolute prohibition; which power, if existing, would seem to conclusively support the ordinance so far as the city's power to enact it is concerned. We will therefore discuss the question from the viewpoint of the grant of power by the terms of the enabling act, expressing no opinion as to what power of prohibition the city may possess, by virtue of the constitutional provisions enabling it to frame its own charter and to enforce local police regulations, the extent of its power from that source not being here discussed by counsel.

The problem for our solution then is, Does the power 'to regulate the selling or giving away of intoxicating * * * liquors,' taken in connection with the power to license and the power to ordain police regulations as conferred by the provisions of the enabling act above quoted, give to the city the power to regulate the liquor traffic in the manner provided by this ordinance?

We are first confronted by the fact that the ordinance does in a measure restrain and prohibit the disposition of intoxicating liquor, and this it is insisted amounts to more than regulation as that term is used in the enabling act. The word 'regulate' seems to necessarily imply some degree of restraint and prohibition of acts usually done in connection with the thing to be regulated. It negatives the idea that all acts which would ordinarily be performed in connection therewith may be so performed without any restraint or prohibition whatever, and it seems to necessarily follow that some restraint upon the sale and giving away of liquor, as well as upon other acts in the conduct of the business which do not directly pertain to the disposition of the liquor, must fall within this power. In Black on Intoxicating Liquors, at section 227, that learned author, commenting upon the distinction between the power to regulate and the power to prohibit, adds: 'But true regulation of the sale of intoxicants is not inconsistent with a partial or qualified prohibition.' Justice Martin, speaking for Court of Appeals of New York in City of Rovhester v. West, 164 N.Y. 510, 58 N.E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659, says: 'To regulate is to govern by, or subject to, certain rules or restrictions. It implies a power of restriction and restraint, not only as to the manner of conducting a specified business, but also as to the erection in or upon which the business is to be conducted.' In Provo City v. Shurtliff, 4 Utah, 15, 5 P. 302, in construing the power of the city to regulate under a grant of power which was held not to give the city the power to entirely prohibit, the court observed: 'Under this statute, the power to license, regulate, or restrain is not questioned, and this power implies the power of partial prohibition to incumber the sale with conditions and limitations, to hinder and prevent in degree, and to prescribe reasonable rules by which the sale of intoxicating liquors to persons, and at places, is to be governed, to the end that the abuse to which they are obviously liable may at least in degree be prevented.' In the following cases where the power to regulate or a general welfare clause only was involved, ordinance regulation was held valid which in a measure restrained and prohibited the disposition of intoxicating liquor. Richards v. City of Bayonne, 61 N. J. Law, 496, 39 A. 708; Morris v. City Council of Rome, 10 Ga. 532; City of Baton Rouge v. Butler, 118 La. 73, 42 So. 650; State v. Common Council of Northfield, 94 Minn. 81, 101 N.W. 1063; Monroe v. City of Lawrence, 44 Kan. 607, 24 P. 1113, 10 L. R. A. 520; Ex parte Hayes, 98 Cal. 555, 33 P. 337, 20 L. R. A. 701; People v. Case, 153 Mich. 98, 116 N.W. 558, 18 L. R. A. (N. S.) 657. From these authorities and others which could be cited, it seems clear to us that the mere fact that the ordinance in some measure prohibits the sale and giving away of intoxicating liquors in licensed saloons in the city does not render the ordinance invalid because of lack of power to enact it; since a limited degree of prohibition is apparently one of the methods of regulating the liquor traffic recognized by law. This seems to reduce our problem to the question of the reasonableness of the ordinance.

In considering the question of the reasonableness of the ordinance, we must remember that we are here dealing with a general welfare power together with the specifically granted power of licensing and regulating the selling and giving away of intoxicating liquors. It is argued that the provisions of the ordinance are so unusual that we cannot assume that the Legislature contemplated a regulation of this nature by the language of the enabling act above quoted, which is general only, and leaves the nature and extent of the regulations which the city may make undefined. It is true that no...