Howard v. Christmas

• Decision Date: 08 January 1944
• Citation: 176 S.W.2d 821,180 Tenn. 519
• Parties: HOWARD et al. v. CHRISTMAS, Mayor, et al.
• Court: Tennessee Supreme Court

176 S.W.2d 821

180 Tenn. 519

HOWARD et al. v. CHRISTMAS, Mayor, et al.

Supreme Court of Tennessee.

January 8, 1944

Appeal from Chancery Court, Roane County; J. H. Wallace, Chancellor.

Suit in equity by Louis Howard and others against J. D. Christmas Mayor, and the Board of Aldermen, of the City of Harriman and such city, for a declaratory judgment determining the unconstitutionality of a city ordinance and an injunction pendente lite against enforcement of such ordinance. From a decree dismissing the bill of complaint, complainants appeal.

Affirmed.

Haile & Harris, of Cookeville, and Poore, Kramer & Overton, of Knoxville, for complainants.

D. O. Harris and J. W. Stone, both of Harriman for defendants.

CHAMBLISS Justice.

We quote from appellants' brief this 'Statement of the Case':

'Appellants on March 12, 1943, filed a bill of complaint against the Mayor and the Board of Aldermen of the City of Harriman. Tennessee, attacking the constitutionality of city ordinance No. 548 passed by the Board of Aldermen, and approved by the Mayor, praying for a declaratory judgment, and an injunction pending the termination of this suit. The bill of complaint was later amended so as to make the City of Harriman a party defendant. The injunction was granted. The appellees demurred to the bill, and gave notice for a hearing on bill and demurrer. Appellants moved to strike the demurrer. The Court, on the hearing, sustained the demurrer and dismissed the bill, and the cause is now before this Court on an appeal properly prayed and granted.

* * *

* * *

'The pertinent questions raised by the bill are that the ordinance complained of is unreasonable, in conflict with the general statute of the State, and beyond the powers of the municipality and, therefore, void.'

The ordinance complained of repealed an existing ordinance, under which appellants were operating places for the sale of beer in the town of Harriman, and enacted new regulations for the licensing and sale of alcoholic beverages.

Diligent counsel for appellants challenge this ordinance on numerous grounds, among these that the body of the ordinance is broader than the caption; that the ordinance was irregular in form in that it purported both to repeal a former ordinance and enact a new one; that it vested arbitrary discretionary powers in the Mayor to revoke licenses; that it required a deposit on unreasonable terms, etc., but we conceive the determinative question to be this: Paragraph 2 of Section 1 of this ordinance is as follows:

'It shall be unlawful for any person, firm or corporation to manufacture or sell any beer or other liquid concoction, used as a beverage, and containing more than 5% alcoholic content, by weight, and no beer or other alcoholic beverage of any kind shall be manufactured or sold retail within 2000 feet of any church, school, public library, or any other public gathering place.'

It is alleged that if this restrictive provision be given effect no places for the sale of beer may be lawfully operated in the corporate limits of the town of Harriman. Not only is this provision in this ordinance, but the charter of Harriman not only confers broad powers of regulation and licensing, of the sale of such beverages, etc., but expressly prohibits sales thereof within certain prescribed areas. We quote therefrom:

'Provided, that it shall be unlawful for any person to sell or tipple any intoxicating liquors, including wine, ale, and beer as a beverage in the City of Harriman within one mile of any schoolhouse, public or private, where school is kept, whether the school be in session or not, or within one mile of a church building in which people usually congregate for religious worship, or within one thousand (1,000) feet of any dwelling-house occupied by a family, and the City Council is authorized to make ordinances for the punishment of any violation of the provisions of this section.' Art. 2, § 18, subd. 12.

The charter of Harriman, from which we quote, was enacted in 1917 and is published as Chapter 165, pp. 529-596, of Private Acts of that year. This being the underlying governing law of this municipality, if it be valid, the issue of invalidity of this ordinance becomes immaterial, since no ordinance of the City could be so framed as to confer the right on appellants to sell beer in Harriman under any conditions.

We have considered the points of attack made on the ordinance, and do not find them maintainable. The caption of a...