Johnson v. Board of Com'rs of Reno County

• Decision Date: 29 January 1938
• Docket Number: 33739.
• Citation: 75 P.2d 849,147 Kan. 211
• Parties: JOHNSON v. BOARD OF COUNTY COM'RS OF RENO COUNTY et al.
• Court: Kansas Supreme Court

75 P.2d 849

147 Kan. 211

JOHNSON v. BOARD OF COUNTY COM'RS OF RENO COUNTY et al.

No. 33739.

Supreme Court of Kansas

January 29, 1938

Syllabus by the Court.

All presumptions are indulged in favor of validity of a statute and doubts concerning constitutionality are resolved in favor of constitutionality.

Unless invalidity of statute clearly appears, courts may not nullify plain mandate of a co-ordinate branch of government.

The Fourteenth Amendment does not affect valid police regulations enacted by state. Const.U.S. Amend. 14.

That beverages containing no more than 3.2 percent. of alcohol by weight had been by statute expressly declared nonintoxicating did not necessarily exclude them from operation of regulatory measures. Laws 1937, c. 213.

Where state had police power to prohibit sale of alcoholic beverages, it also had power to regulate sale and to determine how desired regulation could be more effectively accomplished.

An act vesting in a tribunal or public officials discretion in issuance of a license or permit to operate a trade or business, without prescribing standards or rules of action to guide officials, is not invalid under Fourteenth Amendment where business by its nature or by reason of attendant circumstances may become subversive to morals, health, or general welfare. Const.U.S. Amend. 14.

The statutory discretion of a tribunal or of public officials in issuing a license or permit to operate a trade or business which state is authorized to regulate under its police power must be reasonably exercised, and not represent merely a personal will, prejudice, or caprice. Const.U.S. Amend. 14.

The statute prohibiting county commissioners from granting license for sale of 3.2 beer over objection of township board of township where applicant desired to locate did not violate Fourteenth Amendment, in view of frequent inadequacy of policing in rural communities which might cause sale of beer to become or tend to become an evil. Laws 1937, C. 214, § 2; Const.U.S. Amend. 14.

The statute prohibiting county commissioners from granting license for sale of 3.2 beer over objection of township board of township where applicant desired to locate did not violate constitutional provision authorizing Congress to regulate commerce, where statute was a state regulatory police measure, notwithstanding that cereal malt beverages consumed in Kansas were manufactured in other states. Laws 1937, c 214, § 2; Const.U.S. art. 1. § 8.

The statute prohibiting county commissioners from granting license for sale of 3.2 beer over objection of township board of township where applicant desired to locate was not invalidated by fact that specific authority to enact and enforce statute was not conferred by either Federal or State Constitution. Laws 1937, c. 214, § 2.

The statute prohibiting county commissioners from granting permit for sale of 3.2 beer over objection of township board of township where applicant desired to locate did not violate federal and state constitutional provisions providing that enumeration in Constitution of certain rights should not be construed to deny others retained by people. Laws 1937, c 214, § 2; Const.U.S. Amend. 9; Const.Kan.Bill of Rights, § 20.

The statute prohibiting county commissioners from issuing license for sale of 3.2 beer over objection of township board of township in which applicant desired to locate did not violate constitutional provision authorizing Legislature to confer powers of local legislation and administration upon county tribunals, on ground that veto power could not be lawfully delegated to township board. Laws 1937, c. 214, § 2; Const. Kan. art. 2, § 21.

The statute prohibiting county commissioners from issuing license for sale of 3.2 beer over objection of township board in township where applicant desired to locate did not violate constitutional provision declaring that all men were possessed of equal and inalienable natural rights, including life, liberty, and the pursuit of happiness. Laws 1937, c. 214, § 2; Const.Kan.Bill of Rights,§ 1.

The statute prohibiting county commissioners from issuing a license for sale of 3.2 beer over objection of township board of township where applicant desired to locate did not violate constitutional provision prohibiting Legislature from granting privileges or immunities which could not be altered, revoked, or repealed by same body, since that provision referred solely to political privileges and not to those relating to property rights. Laws 1937, c. 214, § 2; Const.Kan.Bill of Rights, § 2.

The statute prohibiting county commissioners from issuing licenses for sale of 3.2 beer over objection of township board of township where applicant desired to locate did not violate constitutional provision requiring all laws of a general nature to have uniform operation throughout state, where conditions for issuance of licenses were identical in every township, notwithstanding that results might not be the same in every township. Laws 1937, c. 214, § 2; Const.Kan. art. 2, § 17.

The failure of statute prohibiting county commissioners from issuing license for sale of 3.2 beer over objection of township board in township where applicant desired to locate, to create any board to act on behalf of township, and fact that no general statute pertaining to townships designated any township officers as constituting the township board did not invalidate statute on ground that there was no such tribunal as a township board, where township trustee, treasurer, and clerk were commonly considered as constituting the township board. Laws 1937, c. 214, § 2; Gen.St.1935, 80-802, 80-1302, 80-1501, 80-1601.

A petition to enjoin a township board from acting in conformity with a provision of section 2, chapter 214, Laws 1937, which authorized such board to object to the issuance of a license for the sale of beverages, within the township, which contain not more than 3.2 percent. of alcohol by weight, and to require the board of county commissioners to issue such license (notwithstanding such township board had previously objected to the issuance thereof), on the ground such delegation of discretion to the township board violates section 18, art. 1, and the Ninth and Fourteenth Amendments to the Constitution of the United States, and sections 17 and 21, of article 2, and sections 1, 2,

and 20, of the Bill of Rights of the Constitution of the state of Kansas, and for the further reason that the discretion which the law purports to vest in the township board does not constitute a delegation of authority to an existing tribunal or one which is created by the act, examined, and held, the demurrer was properly sustained.

Appeal from District Court, Reno County; J. G. Somers, Judge.

Action by Erwin Johnson against the Board of County Commissioners of Reno County and others to enjoin the defendants from acting under the Beer Permit Law and to require the board to issue a license for the sale of 3.2 beer, wherein Fred Cramm intervened. From a judgment sustaining a demurrer, the plaintiff and intervener appeal.

Roy C. Davis, Warren H. White, Frank S. Hodge, Wm. H. Vernon, Jr., and Eugene A. White, all of Hutchinson, for appellants.

Wesley E. Brown, J. Richards Hunter, and Gerald Stover, all of Hutchinson, for appellees.

WEDELL Justice.

This was an action to restrain and enjoin the Board of County Commissioners of Reno County, and the township officers of Grant township, No. 22, in Reno county, from recognizing or acting under certain provisions of section 2, chapter 214, Laws 1937, referred to as the "Beer Permit Law," and to require the Board of County Commissioners to issue a license for the sale of 3.2 beer, notwithstanding the fact the township officers had objected to the issuance of such a license in the manner provided by that law. A demurrer was sustained to the petitions, and from that ruling plaintiff, a lessee, and intervener, the owner of the building in which the beer was to be sold, appeal.

The pertinent averments of the petition were: The plaintiff is a lessee and in the possession and control of property known as the Hutchinson Country Club, together with the improvements thereon. The premises contained a large three-story clubhouse, golf course, swimming pools, tennis courts, and facilities for dining, dancing, swimming, tennis, picnicking and fishing. The club was operated as a private enterprise by the plaintiff lessee, and was supported by dues or membership fees. The plaintiff had on a previous occasion made application to the Board of County Commissioners for a license to sell nonintoxicating cereal malt beverages as provided by the statute, and had complied with all of the requirements of the law to sell cereal malt beverages, and had paid the required license fee. He had otherwise qualified for such a license, but the license had been refused for the sole and only reason that the township officers had objected in writing to the granting of the same. At the time of filing the suit, plaintiff again applied for a license to sell such beverages in accordance with the rules and regulations adopted by the Board of County Commissioners, which rules and regulations had been made according to the provisions of the law. Plaintiff had complied and would continue to comply with such rules and regulations in all respects. He paid the prescribed fee and was entitled to a license. He would then have received and will now receive a license, except for the fact that the township officers threatened to object, and, unless restrained, will again object in writing to the granting of the license by the Board of County Commissioners. The Board of County Commissioners threaten to, and will unless restrained, treat such objection as prohibiting them from...