Fitzpatrick v. Liquor Control Comm'n

• Citation: 25 N.W.2d 118,316 Mich. 83
• Decision Date: 02 December 1946
• Docket Number: No. 10.,10.
• Parties: FITZPATRICK et al. v. LIQUOR CONTROL COMMISSION.
• Court: Supreme Court of Michigan

316 Mich. 83

25 N.W.2d 118

FITZPATRICK et al.

v.LIQUOR CONTROL COMMISSION.

No. 10.

Supreme Court of Michigan.

Dec. 2, 1946.

Appeal from Circuit Court, Wayne County, in Chancery; John V. Brennan, judge.

Suit by Donna Fitzpatrick and another against the Liquor Control Commission of the State of Michigan to enjoin the defendant from attempting to enforce Section 19a of Public Acts 1933, Ex.Sess., as added by Public Acts 1945, No. 133. From order dismissing bill of complaint, the plaintiffs appeal.

Affirmed.

Before the Entire Bench, except DETHMERS, J.

Ralph S. Moore and Gerald F. Fitzgerald, both of Detroit, for appellants.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara, Charles M. A. Martin, and Ben H. Cole, Asst. Attys. Gen., for appellee.

Fitzgerald, Walker, Conley & Hopping, of Detroit, amicus curiae.

BOYLES, Justice.

Plaintiffs are female bartenders in Detroit who filed the instant bill of complaint to enjoin the liquor control commission from attempting to enforce section 19a of the liquor control act¹ as added by Act No. 133, Pub.Acts 1945, Stat.Ann.1945 Cum.Supp. § 18.990(1). The case was heard by Judge John V. Brennan on a motion to dismiss which was filed by the defendant commission, and which motion was granted. From the order dismissing their bill of complaint plaintiffs appeal. The motion to dismiss was based on the following grounds:

‘1. That the bill of complaint fails to state a cause of action entitling plaintiffs to any relief;

‘2. That the regulation and control of liquor traffic is within the police power of the State, and neither the plaintiffs herein nor any other persons have acquired any vested rights, nor may such persons acquire any vested rights in any regulation or privilege granted by the State;

‘3. That the regulation complained of, to-wit, section 19a of Act 133 of the Public Acts of 1945 is a valid exercise of the legislative power of the State under the Constitution of the State.’

Section 19a of the liquor control act, added by Act No. 133, Pub.Acts 1945, Stat.Ann.1945 Cum.Supp. § 18.990(1), provides that no persons shall act as bartender in any establishment in cities of 50,000 population or over which is licensed to sell alcoholic liquor for consumption on the premises, unless such person is licensed by the commission. It further provides that each applicant for a bartender's license shall be a male person 21 years of age or older, with certain exceptions. Shortly after the amendment went into effect plaintiffs filed this bill of complaint, in which they allege that they have been bartenders for many years, challenge the constitutionality of said section 19a, and seek an injunction to prevent its enforcement.

There is no dispute as to the facts. Under the circumstances well-pleaded allegations of fact in the bill of complaint must be taken as true. Plaintiffs are experienced female bartenders, over 21 years of age, who do not come within the exceptions allowed by the amendment. The material part of the amendment is as follows:

‘No person shall act as bartender in any establishment licensed under this act to sell alcoholic liquor for consumption on the premises in any city now or hereafter having a population of 50,000 or more, unless such person shall be licensed by the commission under the provisions of this section: Provided, That the commission may adopt rules and regulations governing the licensing of bartenders in other political subdivisions of the state. Such licenses shall expire on the thirtieth day of April following the issuance thereof. An annual license fee of $2.00 shall be paid by each applicant, which shall be credited to the general fund of the state. Each applicant for license shall be male person 21 years of age or over, shall submit a certificate from his local board of health or health officer showing that such person is not affected with any infectious or communicable disease, and shall meet the requirements of the commission: Provided, That the wife or daughter of the male owner of any establishment licensed to sell alcoholic liquor for consumption on the premises may be licensed as a bartender by the commission under such rules and regulations as the commission may establish. * * * For the purpose of this act a bartender shall be construed to mean a person who mixes or pours alcoholic liquor behind a bar.’ Act No. 133, § 19a, Pub.Acts 1945, Stat.Ann.1945, Cum.Supp. § 18.990(1).

It is plain that the foregoing section 19a limits the licensing of female bartenders to the wife and daughters of the male owner of a licensed liquor establishment. By it plaintiffs are excluded from obtaining bartenders' licenses. They claim that this section is unconstitutional, that it bears no reasonable relation to the object of the legislation, that it is discriminatory as to them, class legislation, therefore void.

Michigan Constitution (1908), art. 16, § 11, as ratified at the November election in 1932, provides as follows:

‘The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof; and the legislature may also provide for an excise tax on such sales: Providing, however, that neither the legislature nor such commission may authorize the manufacture or sale of alcoholic beverages in any county in which the electors thereof, by a majority vote, shall prohibit the same.’

Pursuant to this authority the legislature enacted Act No. 8, Pub.Acts 1933, Ex.Sess., Stat.Ann. §§ 18.971-18.1028, creating the liquor control commission. Section 1 of the act, Stat.Ann. § 18.971, provides in part:

‘Except as by this act otherwise provided, the commission shall have the sole right, power and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within the state of Michigan, including the manufacture, importation, possession, transportation and sale thereof.’

In considering the powers of the liquor control commission under the Constitution, the court said:

‘Except as limited or defined by statute, the Constitution itself vests the statutory commission with plenary power to control alcoholic beverage traffic in this state. This appears from the constitutional provision hereinbefore quoted. And such is our holding in Scott v. Township Board [of Arcada Township,] 268 Mich. 170, 255 N.W. 752;Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88.

* * *

‘The constitutional provision that the commission ‘shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof’, is limited only by express provisions or necessary implications embodied in the legislative act (as amended) by which the commission was created and its powers, duties and limitations prescribed.' Terre Haute Brewing Co., Inc., v. Liquor Control Commission, 291 Mich. 73, 78, 79, 288 N.W. 339, 342.

Section 19a gives the liquor control commission the authority to license bartenders in establishments which are licensed to sell alcoholic liquor for consumption on the premises, and excludes from acting as such bartenders all persons who have not been so licensed by the commission. Plaintiffs claim (and it must be admitted) that in so doing the legislature has discriminated between male and female licensees, as to who may act as bartenders. The first ground on which plaintiffs claim that such discrimination is unconstitutional is that it has no reasonable relation to the object of the legislation, although the object is stated in the title of the act to be, in part, ‘to provide for the control of the alcoholic liquor traffic within the state of Michigan.’ We are not in accord with this claim. The licensing of bartenders, to act as such in places where alcoholic liquor is sold, does have a reasonable relation to the control of the alcoholic liquor traffic and the sale of intoxicating liquor for consumption on the premises. Bartenders are frequently in charge of such places, contact the liquor-consuming public, are allowed to sell alcoholic liquor by the glass, and generally must decide whether the prospective purchaser is a minor or otherwise a proper person who can lawfully make the purchase and consume the liquor on the premises. Supervision over the activities of bartenders must be considered as essential to a proper control of alcoholic liquor traffic. Such supervision is within the purview of legislative powers conferred by the amendment and has a reasonable relation to the object of the legislation. See Benson v. State and Hospital Commission, Mich., 25 N.W.2d 112 and cases therein referred to.

Plaintiffs further challenge the constitutionality of section 19a on the grounds (1) that it deprives plaintiffs of the right to continue their occupation as bartenders, i. e., deprives them of rights without due process of law, and (2) that it is discriminatory, therefore void, as class legislation. These claims are based, in part, on article 2, §§ 1 and 16, of the Michigan Constitution (1908), and amendment 14, § 1, of the United States constitution, which are commonly referred to as the due process and equal protection provisions of the State and Federal Constitutions. The essence of plaintiffs' claim in that regard is that they are deprived of equal protection of the law, and that the amendment by section 19a is unconstitutional class legislation.

Plaintiffs have not been deprived of any property rights. In this State no one has any property right in an employment so directly associated with traffic in alcoholic liquor that they may mix and pour alcoholic drinks behind the bar of a place where they are sold and consumed, decide who may buy and consume the liquor, sell it by the glass for consumption on the premises, entirely outside of and beyond the control of the law. The control of the sale, use, transportation and...