Goesaert v. Cleary, Civil Actions No. 6618

Citation74 F. Supp. 735
Decision Date20 November 1947
Docket Number6619.,Civil Actions No. 6618
PartiesGOESAERT et al. v. CLEARY et al. NADROSKI et al. v. SAME.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)

Davidow & Davidow and Anne R. Davidow, all of Detroit, Mich., for plaintiffs.

Eugene F. Black, Atty. Gen. of Michigan, and Ben H. Cole and Charles M. A. Martin, Asst. Attys. Gen., for defendants.

Before SIMONS, Circuit Judge, and PICARD and LEVIN, District Judges.

LEVIN, District Judge.

These cases, brought as class actions under Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, were consolidated and are now before this Court of Three Judges, convened pursuant to Judicial Code, Sec. 266, as amended, 28 U.S.C.A. § 380, on an application for an interlocutory injunction to restrain the enforcement of a law of the State of Michigan enacted by the Legislature on April 30, 1945, known as Act 133 of the Public Acts of 1945, Pub.Acts 1933, Ex.Sess., No. 8, § 19a, Mich.Stat.Ann. Sec. 18.990(1).

The complete act is set out in the margin hereof.1 The pertinent portion of the legislation which the plaintiffs urge in their suits as being violative of the Fourteenth Amendment to the Constitution of the United States, in that it denies them the equal protection of the laws and deprives them of their property without due process of law, may be summarized as follows: That in any city now or hereafter having a population of 50,000 or more, no female shall be licensed as a bartender (a bartender being described as a person who mixes or pours alcoholic liquor behind the bar), unless such person be the wife or daughter of the male owner of the licensed liquor establishment.

In the Goesaert case the plaintiffs are the mother, the owner of a bar, and a daughter employed by her, both of whom act as barmaids in a bar in the City of Dearborn, Michigan, which has a population, according to the last Federal census, in excess of 50,000. In the Nadroski case, the plaintiffs are a barmaid and a female bar owner, both acting as barmaids in Detroit, Michigan, a city having a population of over 50,000.

The vices in the act, according to the plaintiffs, may be summarized as follows:

1. It sets up an arbitrary standard of 50,000 as the population of any city to come under the act.

2. It discriminates against women owners of bars.

3. It discriminates against women bartenders.

4. It discriminates between daughters of male and female owners.

5. It discriminates between waitresses and female bartenders.

The first question to be considered is whether the statute is unconstitutional because it shows upon its face an unjust and unfair classification as to cities based upon population. The Legislature may have reasonably concluded that the need for regulation of women bartenders was much more urgent in the larger cities and we hold that such classification is not unreasonable and repugnant to the Federal Constitution. In Radice v. People of the State of New York, 264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690, a New York statute prohibiting the employment of women in restaurants in cities of the first and second class during the night hours was upheld against the charge that it violated the equal protection clause of the Fourteenth Amendment by making an unreasonable and arbitrary classification. The Court said at page 296 of 264 U.S., at page 327 of 44 S.Ct.:

"The limitation of the legislative prohibition to cities of the first and second class does not bring about an unreasonable and arbitrary classification. (Citing cases) Nor is there substance in the contention that the exclusion of restaurant employees of a special kind, and of hotels and employees' lunch rooms, renders the statute obnoxious to the Constitution."

Plaintiffs do not challenge the right of the Legislature under its police power to regulate and even prohibit the sale of alcoholic liquor, Twenty-First Amendment to the Constitution of the United States, Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 60 S.Ct. 163, 84 L.Ed. 128; State Board v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38; but the plaintiffs say that when the state has legalized the sale of liquors and has authorized the establishment of a place to sell alcoholic beverages, it must treat all persons in the same class alike. They recognize the right of the Legislature to bar all women in the state from acting as bartenders, but they say that to permit women to act as waitresses in establishments selling liquor and not permit the same women to act as bartenders in the same establishment, to permit wives and daughters of male license holders to act as bartenders but not women owners or daughters of women owners, constitutes a violation of the Federal Constitution.

The plaintiffs rely heavily on Glicker v. Michigan Liquor Control Commission, 6 Cir., 160 F.2d 96. We find that case readily distinguishable from the instant case. It furnishes little support to plaintiffs' contentions. In the Glicker case the plaintiff alleged discriminatory conduct on the part of the defendant, Michigan Liquor Control Commission. It was the discriminatory action on the part of defendant which allegedly deprived plaintiff of the equal protection of the laws as guaranteed by the Fourteenth Amendment. In passing on the motion to dismiss the complaint, the Court held it was controlled by the allegations of fraudulent, wilful and deliberate discrimination against the plaintiff which required a trial of the facts. The instant case presents totally different questions. No allegations of discrimination by conduct are made. Rather, the only allegations of discrimination arise from the interpretation of the statute attacked. In construing the statute and in determining whether it violates the Fourteenth Amendment, we are not confronted with or controlled by any allegations in this case respecting the conduct of the defendant. Instead, we read the statute and determine its constitutionality.

The equal protection clause of the Fourteenth Amendment does not prohibit all classification, per se. Atchison, Topeka & Santa Fe R. Co. v. Matthews, 174 U.S. 96, 103, 19 S.Ct. 609, 43 L.Ed. 909.

The rules for determining whether a statute is arbitrary in its classification and consequently denies the equal protection of the laws to those whom it affects have been succinctly stated in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, at page 78, 31 S.Ct. 337, at page 340, 55 L.Ed. 369, Ann.Cas.1912C, 160:

"1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary."

Further, in New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 at page 578, 58 S.Ct. 721, at page 724, 82 L. Ed. 1024:

"Although the wide discretion as to classification retained by a Legislature often results in narrow distinctions, these distinctions, if reasonably related to the object of the legislation, are sufficient to justify the classification. (citing cases) Indeed, it has long been the law under the Fourteenth Amendment that `a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it.' (citing cases) `The rule of equality permits many practical inequalities.' (citing cases) `What satisfies this equality has not been, and probably never can be, precisely defined.'"

Having these principles in mind we turn to the Michigan statute under consideration. It is conceivable that the Legislature was of the opinion that a grave social problem existed because of the presence of female bartenders in places where liquor was served in the larger cities of Michigan. It may have been the Legislature's opinion that this problem would be mitigated to the vanishing point in those places where there was a male licensee ultimately responsible for the condition and the decorum maintained in his establishment. It may have determined that the self interest of male licensees in protecting the immediate members of their families would generally insure a more wholesome atmosphere in such establishments. The Legislature may also have considered the likelihood that a male licensee could provide protection for his wife or daughter that would be beyond the capacity of a woman licensee to provide for herself or her daughter. The power of the Legislature to make special provision for the protection of women is not denied.

We next consider the claimed discrimination in the statute between female bartenders and female waitresses, and we conclude that the Legislature may also have reasoned that a graver responsibility attaches to the bartender who has control of the liquor supply than to the waitress who merely receives prepared orders of liquor from the bartender for service at a table. It may have determined that the presence of female waitresses does not constitute a serious social problem where a male bartender is in charge of the premises, or where a male licensee bears the ultimate responsibility for the operation therein. It may reasonably be conceived that the Legislature deemed it necessary to have male control of and responsibility for the...

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10 cases
  • Anderson v. City of St. Paul
    • United States
    • Minnesota Supreme Court
    • 7 Mayo 1948
    ...in such places did not deprive women of property without due process or deny them the equal protection of the laws. In Goesaert v. Cleary, D. C., 74 F.Supp. 735, a three-judge federal court (one judge dissenting) held in an action to enjoin the enforcement of the Michigan statute that the s......
  • Cardinal Sporting Goods Company v. Eagleton
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 11 Enero 1963
    ...does not insulate and immunize the statute from another constitutional attack thereon in a federal tribunal. Goesaert v. Cleary (E.D.Mich., S.D. 1947), 74 F.Supp. 735, aff'd 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163; United States ex rel. Touchy v. Ragen (7 Cir., 1955), 224 F.2d 611, As the ......
  • Bogue v. Faircloth
    • United States
    • U.S. District Court — Southern District of Florida
    • 30 Julio 1970
    ...constitutionality is not controlling in a Three-Judge Court determination; however, it is certainly persuasive. Goesaert v. Cleary, 74 F.Supp. 735 (D.C. Mich.1947). See also, Kilgarlin v. Martin, 252 F.Supp. 404 (D.C.Tex.1966) (Opinion of State Attorney General is The Florida Supreme Court ......
  • Eskridge v. Division of Alcoholic Beverage Control
    • United States
    • New Jersey Superior Court — Appellate Division
    • 10 Mayo 1954
    ...S.Ct. 609, 43 L.Ed. 909 (1899). The ordinance in the instant case is not so discriminatory as to render it invalid. Goesaert v. Cleary, 74 F.Supp. 735 (D.C.E.D.Mich.1947), affirmed 355 U.S. 464, 69 S.Ct. 198, 199, 93 L.Ed. 163 (1948). There the court had before it for consideration a statut......
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