Crowley v. State
| Decision Date | 03 August 1978 |
| Docket Number | No. 12339,12339 |
| Citation | 268 N.W.2d 616 |
| Parties | Michael CROWLEY, Plaintiff and Appellant, v. STATE of South Dakota, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Charles A. Wolsky, Vermillion, for plaintiff and appellant.
John P. Dewell, Asst. Atty. Gen., Pierre, for defendant and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.
This is an appeal from the trial court's decision upholding the constitutionality of SDCL 35-2-6.1, and the denial of appellant's request for a 3.2 liquor license. We affirm the decision of the trial court.
SDCL 35-2-6.1 provides in pertinent part:
No on-sale or off-sale license shall be granted under this title to operate on the campus of any state educational institution, or within two hundred yards of the outside boundary thereof. . . .
Appellant contends that this statute is unconstitutional under both the due process and equal protection clauses of the State and Federal Constitutions in that subsequent to its enactment, the Board of Regents, on July 29, 1974, passed a rule permitting the consumption and/or storage of 3.2 beer in the personal dormitory rooms at state educational institutions. Appellant does not deny the fact that these statutes have usually been considered constitutional; however, he argues that this court is faced with a unique situation in that the subsequent action of the Board of Regents has abrogated any and all purposes of SDCL 35-2-6.1, thereby rendering it irrational and unreasonable.
When examining the validity of the statute it should be noted that every presumption is indulged in favor of the statute's validity, and a statutory discrimination will not be set aside when any state of facts may reasonably be conceived to justify it. All presumptions are in favor of the constitutionality of a statute and this continues until the contrary is shown beyond a reasonable doubt. State v. Reininger, 1931, 59 S.D. 336, 239 N.W. 849.
It is a general rule that no one has an absolute right to engage in the business of selling intoxicating liquor. It is a privilege subject to the police power of the state that can only be granted by the proper licensing authority. Paron v. Shakopee, 1948, 226 Minn. 222, 32 N.W.2d 603; see also 2 A.L.R.2d 1227. Since it is a privilege and not a fundamental right, the proper equal protection test is one of rational and reasonable basis and does not involve a suspect classification. The standard of review of this legislative classification is whether there is a rational basis existing to sustain it. Black Hills Packing Co. v. S. D. Stockgrowers Ass'n, 1975, D.C., 397 F.Supp. 622.
It is also the general rule that one assailing a classification in law has the burden to show that it is essentially arbitrary and clearly unreasonable. Reininger, supra.
Statutes regulating the selling of both intoxicating and nonintoxicating liquor within certain distances of churches or schools are fairly common. One theory which is generally advanced to support them is the protection of students in the formative period of their lives from temptations of alcoholic drink. See Walsh v. Department of Alcoholic Beverage Control, 1963, 59 Cal.2d 757, 31 Cal.Rptr. 297, 382 P.2d 337. Drawing strongly on this theory, appellant argued that there is no logical reason for protecting students from the temptations of alcohol for a radius of two hundred yards from a campus while at the same time allowing the storage and consumption of 3.2 beer in the dormitories on the campus. This argument would be persuasive if that were the only rationale. However, the other theory in support of the statutes is the removal of the atmosphere of an establishment wherein intoxicating beverages are sold to a reasonable distance because the milieu of such a place is considered inimical, which is the theory upon which the state relies. In State ex rel. Yung Sing v. Permenter, Fla.1952, 59 So.2d 773, 774, the Florida court stated:
Temptation is but one of the evils toward which this type of legislation is directed. Its primary objective is to remove the atmosphere of an establishment wherein intoxicating beverages are sold a reasonable distance from a church, school . . . because the milieu of such a place is considered inimical to the best interests and welfare of those who attend church, Sunday or secular school as well as of those who are voluntarily or necessarily enscounced within the other named institutions or grounds. See also 45 Am.Jur.2d, Intoxicating Liquor, § 140. (Emphasis added.)
The state urges that the legislative intent is the milieu objective, not the protection of students from the...
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