Hann v. Fitzgerald
| Decision Date | 06 September 1938 |
| Docket Number | 35491 |
| Citation | 119 S.W.2d 808,342 Mo. 1166 |
| Parties | Daniel Hann et al. v. Thomas F. Fitzgerald, Supervisor of Liquor Control for the State; Richard Surkamp, Assistant Supervisor of Liquor Control for the State; Albert Bond Lambert, President of the Board of Police Commissioners of the City of St. Louis; Samuel H. Liberman, Thomas L. Farrington and Otto F. Harting, Members of the Board of Police Commissioners of the City of St. Louis; John H. Glassco, Chief of Police of the City of St. Louis, and John Carroll, Chief of Detectives of the City of St. Louis, Appellants |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge;
Reversed and remanded.
Roy McKittrick, Attorney General, E. H. Miller Assistant Attorney General, Edgar H. Wayman and Oliver Senti for appellants.
(1) Plaintiffs are operating taverns wherein they are licensed to sell intoxicating liquor. (a) The only relief sought by the plaintiffs is that the defendants be restrained from interfering with them for the sale of non-intoxicating 3.2% beer on Sunday. (b) The record contains no evidence of the State Supervisor of Liquor Control ever having made any rule or regulation. Plaintiffs, therefore, are in no position to question the validity of the statute which authorizes him to make rules and regulations. Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896. (2) No person having a license to sell intoxicating liquor can lawfully sell, give away or otherwise dispose of upon his premises any intoxicating liquor on Sunday. Laws 1935, p. 267, sec. 15. (a) No person holding a license to sell intoxicating liquor can lawfully sell, give away or otherwise dispose of upon his premises any non-intoxicating beer on Sunday. Laws 1935, p. 267, sec. 22. (3) A privilege which the State may withhold altogether can be granted upon such terms as the State may see fit to impose. State v. Bennett, 315 Mo. 1267, 288 S.W. 50. (a) No one has an inherent right to sell intoxicating liquor and the State can withhold the privilege or grant it upon such conditions as it may see fit to impose. State v Parker Distilling Co., 236 Mo. 219. (4) The petition raises no constitutional question. State v Campbell, 259 S.W. 430; Lohmeyer v. Cordage Co., 214 Mo. 688, 113 S.W. 1109; State v. Kramer, 222 S.W. 823. (a) The defendant Supervisor of Liquor Control is an officer of the State. Laws 1933-4, p. 77, sec. 2. (b) A State officer being a party to the cause, this court has appellate jurisdiction. Mo. Const., Art. VI, Sec. 12. (c) This court will not construe a constitutional question not properly raised below although it has jurisdiction of the appeal. St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001.
Godfrey, Schurr & Taylor for amicus curiae.
(1) Full liquor license dealers licensed to sell intoxicating liquor by the drink are not prohibited from remaining open on Sunday, the first day of the week. Laws 1935, p. 267, sec. 15. (2) The contention of appellants that under the Intoxicating Liquor Act a full liquor license dealer is prohibited from selling or dispensing of 3.2 beer on Sunday is without avail because (a) Section 22 of the Intoxicating Liquor Act does not prohibit full liquor license dealers from selling 3.2 beer on Sunday. Joplin Supply Co. v. Smith, 167 S.W. 649, 182 Mo.App. 212. (b) The attempt of the Legislature to restrict those engaging in the sale of intoxicating liquors only, from selling a non-intoxicating beverage, or lawful commodity, on Sunday, constitutes a discrimination in violation of Article II, Section 30, of the Constitution of the State of Missouri. (3) The Intoxicating Liquor Act, in so far as it attempts to regulate the sale or dispensing of a particular non-intoxicating beverage on Sunday, namely 3.2 beer, is unconstitutional because the title of the Intoxicating Liquor Act relates only to the regulation of traffic in intoxicating liquor and the regulation of traffic in a non-intoxicating beverage in said act constitutes more than one subject, which subject is not embraced in the title of said act. Mo. Const., Art. IV, Sec. 28.
Action to enjoin the State Supervisor of Liquor Control, Board of Police Commissioners, Chief of Police, Chief of Detectives of the City of St. Louis and their subordinates from enforcing the Sunday provisions of the Intoxicating Liquor Act, Laws of Mo. 1935, page 267, l. c. 272. The judgment enjoined the defendant officials from interfering with the saloonkeepers selling non-intoxicating beer on Sunday. Defendants appealed.
The action was instituted by three hundred saloonkeepers. One hundred and fifty saloonkeepers intervened. All of them are licensed to sell intoxicating liquors. The petition of the interveners is substantially the same as the petition of the plaintiffs.
It will not be necessary to summarize the pleadings in view of the stipulation, which follows:
"It is hereby stipulated and agreed by and between the parties plaintiff and the parties defendant and the parties to the interpleader in this action that the only injunctive relief, if any, to be granted by this Court in this cause shall be to restrain the defendants from interfering with the sale by plaintiffs and interveners of non-intoxicating beer, having an alcoholic content under 3.2 percent by weight, on the first day of the week commonly called Sunday."
The provisions of the act (Laws 1935, pp. 267, 272, 275) for consideration follow:
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