Ex parte Gammel

• Decision Date: 27 July 1949
• Docket Number: A-11118.
• Citation: 208 P.2d 961,89 Okla.Crim. 400
• Parties: Ex parte GAMMEL.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

208 P.2d 961

89 Okla.Crim. 400

Ex parte GAMMEL.

No. A-11118.

Court of Criminal Appeals of Oklahoma

July 27, 1949

Original habeas corpus proceeding by W. E. Gammel seeking release from confinement in the city jail at Shawnee.

Writ granted.

Syllabus by the Court.

1. Under constitutional provision for adoption of home-rule charter, city adopting such charter is accorded full power of local self-government and, as such, municipal corporation has power to enact, ordain, and enforce ordinances for purpose of protecting public peace, order, health, morals, and safety of inhabitants, even though general statutes exist relating to same subjects. Const. art. 18, § 3(a).

2. The provisions of a charter, adopted and approved in accordance with such constitutional provision, supersede all laws of the state in conflict therewith in so far as such laws relate to merely municipal matters.

3. An ordinance passed under such charter provisions, which conflicts with the general laws of the state, must give way and, while it may run concurrent with the general laws of the state, it may not run counter thereto.

4. A municipality operating under a charter form of Government may under its police power adopt ordinances which are necessary for the preservation of public health, safety, morals and general welfare of society.

5. Where the Legislature by general law prescribes the qualifications and conditions under which a private business may operate, a municipality may not under the guise of the exercise of police power restrict the operation of such business by prescribing additional qualifications and conditions under which such business may operate.

Joe Reily, Shawnee, Rowe Cook, Oklahoma City for petitioner.

Randall Pitman, Shawnee, for defendant.

JONES Presiding Judge.

This is an orginal action in habeas corpus instituted by the petitioner, W. E. Gammel, for the purpose of securing his release from confinement in the City Jail at Shawnee.

In the verified petition filed herein it is alleged that the petitioner is the owner and operator of a business located in the city of Shawnee known as the Century Club and that his business consisted in selling non-intoxicating beverages containing not less than one-half of one percent, nor more than 3.2 percent of alcohol measured by weight; that he has procured a permit from the State of Oklahoma and the County Judge of Pottawatomie County, and has otherwise met all of the provisions of the State Laws providing for and relating to the sale of such beverages.

That the city of Shawnee, a municipal corporation, on July 8 1948, duly passed a purported emergency ordinance for the purpose and with the intent to control and regulate the sale of 3.2 beer; that said ordinance reads as follows:

'Now, Therefore, Be It Ordained By The Mayor And Board Of Commissioners Of The City Of Shawnee, Oklahoma:

'Section 1. It shall be unlawful for any person, firm or partnership or corporation to maintain, establish or operate any place within the City of Shawnee, Oklahoma, where 3.2 beer is sold at retail in violation of any of the provisions of this ordinance, or upon failure to perform any conditions required herein for the regulation of said place.

'Section 2. It shall be unlawful for any person to sell or serve 3.2 beer, to any person under the age of twenty-one years, or to a known habitual drunkard, or to any person under the influence of intoxicating liquor, regardless of whether said beer is to be consumed on the premises where sold, or carried away.

'Section 3. It shall be unlawful for the owner or operator of, or any person in charge of any place where 3.2 beer is sold, to use or employ any minor person under twenty-one years of age, to sell or serve 3.2 beer.

'Section 4. It shall be unlawful for the operator or owner of any beer tavern or beer parlor, or person in charge of same, to knowingly permit any minor, under the age of twenty-one years, or any unescorted female person, not an owner or employe, to enter into, frequent, or loiter in or about a beer tavern or beer parlor.

'For the purposes of this Ordinance, a Beer Tavern or Beer Parlor, is defined to be any place where 3.2 beer is sold for consumption on the permises, where 15 per cent or more of the monthly dollar volume of sales or income from said place or business, excluding income from dominoes and pool, is derived from the sale of 3.2 beer.

'Section 5. No beer tavern or beer parlor or place where 3.2 beer is sold shall use any curtain or screen, or painted or otherwise discolored glass front, door or window of said place in excess of three feet in height from the floor of said premises so as to obstruct the view of the inside premises occupied by said beer tavern from the outside or sidewalk or street running along in front of or beside the same.

'Section 6. It shall be unlawful for any person to sell or serve beer at retail in any booth or enclosed room or to permit the same to be consumed therein. Providing that partitions in said places not exceeding 36 inches in height from the floor shall not be deemed to be a booth as defined in this Section.

'Section 7. All places where 3.2 beer is sold at retail shall be deemed a public nuisance and a violation of this ordinance under any one of the following conditions:

'a. When any gambling, game of chance or any betting is permitted or carried on in such place.

'(b) When any disorderly conduct is permitted in such place.

'(c) When beer is sold to any person under twenty-one years of age.

'(d) When any intoxicating liquors are bartered, sold or given away or otherwise furnished, or the same is permitted to be done in such place.

'(e) When any person operating said place shall be guilty of public drunkenness.

'(f) When any drinking or intoxicating liquor is permitted in such place.

'(g) When the operator of such place has in his possession or on the premises in which said beer business is being operated a Federal excise or occupational tax stamp or receipt designating such person or premises as the person or place for dealing in liquor or evidencing the payment of a tax for being a dealer in such liquor.

'(h) When any loud, boisterous, unusual, noisy, profane or vulgar language is habitually or continuously permitted or tolerated in such room or place.

'(i) When any prostitute, vagrant, gambler, habitual drunkard, drug addict, lewd or immoral characters, habitual law violator, bootlegger, or person having a reputation of being a bootlegger is permitted to loaf and loiter in and about such place.

'(j) When said place is kept in an unclean and unsanitary condition.

'(k) When said place is not provided with adequate lighting and ventilation.

'(l) When such place is permitted to remain open contrary to the provisions of State law.

'(m) When said place is maintained and operated in violation of any of the sections of this ordinance.

'Section 8. It shall be the duty of the City Police to make frequent inspection of all places of business where beer is sold at retail for the purpose of enforcing the provisions of this ordinance, and when any person or persons are found to be violating any of the terms of this ordinance, the same shall be reported by the Police Department to the City Judge and the City Attorney, and it shall be the duty of the City Judge and the City Attorney to report the same to the County Judge and the County Attorney and request the County Judge to cancel the license of any person found guilty of violating this ordinance.

'Section 9. Any person, firm or corporation violating any of the provisions of this ordinance, either by doing anything which is prohibited or by failing to do anything which is commanded, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished in any amount not exceeding $100.00 and cost, or imprisonment in the City jail of not more than thirty days or by both such fine and imprisonment, provided that each day of such violation shall constitute a separate offense.

'Section 10. That all ordinances and parts of ordinances in conflict herewith are hereby repealed.

'Section 11. In the event that any portion of this ordinance shall be held unconstitutional or invalid or ineffective for any reason, by any court of competent jurisdiction, whether it be a section, paragraph, clause, phrase or work, such holding shall not affect the validity of the remaining and other provisions of this ordinance, but the same shall continue in full force and effect notwithstanding such holding, and the City Commission hereby declares that it would have passed the valid and effective parts and provisions of this ordinance without the inclusion of any parts or provisions hereof which may be deemed, adjudged or decreed to be invalid, unconstitutional, or ineffective.

'Section 12. That for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this ordinance shall be in effect immediately from and after its passage, approval and publication.

'Passed and approved this 8th day of July, 1948.

'That the petitioner in the operation of said business and long prior to the adoption of said ordinance had caused his front window to be painted in excess of thirty-six inches in height and had constructed wooden booths in the interior of his building for the benefit of his customers which exceeded thirty-six inches in height from the floor.

'That your petitioner was charged in the Municipal Court of the city of Shawnee with the violation of Sections 5 and 6 of said ordinance and on the 13th day of August, 1948, was tried, found guilty and sentenced to pay a fine of $25 and upon his failure to pay the same was committed to the city jail where h...