Kitson v. Ann Arbor

• Decision Date: 08 January 1873
• Citation: 26 Mich. 325
• Court: Michigan Supreme Court
• Parties: Charles Kitson v. The Mayor, Etc., of Ann Arbor

26 Mich. 325

Charles Kitson v. The Mayor, Etc., of Ann Arbor

Supreme Court of Michigan

January 8, 1873

Heard October 17, 1872; October 18, 1872.

Error to Washtenaw circuit.

Conviction affirmed, with costs.

Lawrence & Frazer, and H. J. Beakes, for plaintiff in error.

Felch & Grant, for defendants in error.

Campbell J. Christiancy, Ch. J., and Graves, J., concurred. Cooley J., did not sit in this case.

OPINION

Campbell, J.:

The validity of the ordinance under which Kitson was convicted, is assailed on three principal grounds: First, That it violates the clause of the constitution forbidding licenses for the sale of intoxicating liquors; second, that it is an unreasonable restraint of trade; and third, that it is an unlawful attempt to raise revenue.

The first ground rests entirely on the assumption that a saloon is necessarily a place for the sale of intoxicating liquors, and Kitson sold nothing else; and that a license to keep a saloon, amounts to a license to sell such liquors.

This ground is not tenable, unless that definition of the word "saloon," is the only one admissible. The legislation of the state must be construed together; and as the sale of intoxicating liquors is, in general, absolutely forbidden by our statutes, it must be assumed that the legislature, in allowing saloons to be licensed, had in their minds some kind of saloons which could be recognized as doing business otherwise than in dealing in such liquors.

The word "saloon," applied to places of resort, is defined by Worcester to be "a place of refreshment." This is certainly the popular understanding of the term, and it is applied in all orderly communities to all places where persons resort to obtain food or drink, which are not also devoted to some other business. Undoubtedly, a narrower meaning is sometimes applied, as it is to "grocery," and as it once was to "tavern." But saloons, and groceries, and taverns, are mainly designed for innocent purposes, and if a prohibitory law were passed forbidding any of the three to be kept open, it would become necessary to contrive some new phrases, to indicate places essential to the convenience of all communities.

The license of a saloon can only extend to authorize such business to be done as can lawfully be done in a saloon, and to include all that is lawful. If a person sees fit, without license, to sell none but refreshments not authorized by law, he does not thereby cease to keep a saloon. He merely violates two laws instead of one. A pawnbroker might as well attempt to do business without a license, by confining his dealings to stolen goods, or an auctioneer by making no legitimate sales, and holding none but Peter Funk auctions.

It is claimed, however, that if the license only permits the sale of harmless refreshments, it is an unreasonable restraint of trade to discriminate against a lawful business, and unreasonable also to allow the restrictions to go so far as they do here.

It has always been considered improper to pass by-laws in restraint of trade, as tending to discourage enterprise and to create monopolies. But it has been seen for centuries that certain classes of business--not held unlawful in themselves--gave facilities for unlawful conduct, and allowed action dangerous to the public. Such callings have always been held to require some regulation to prevent their abuse. All places of general resort for amusement or refreshment are liable to harbor dangerous persons, and to furnish opportunities for combinations, and for breaches of the peace, and if crowded, for thefts and outrages. If any kind of refreshment is forbidden by law, it is not very difficult for those who may sell a variety of drinks to sell intoxicating liquors among the rest. The license system has always been found desirable to bring these callings--so readily capable of abuse--within more effectual control, in order that crime may be prevented or detected, and disorder checked.

The charter of Ann Arbor distinctly contemplates that public policy requires the business of keeping places of resort for eating and drinking to be restrained. It is to be "prevented," except as it may be licensed. The policy of all license laws which discriminate between different callings, is to limit the number of places where such business is to be done, in order to lessen the mischief, and to make it easier to keep up any necessary supervision, and also to secure, as far as may be, the character and responsibility of those who may carry on such callings. Thus far there have been but two ways devised for these ends. The first is to limit the number of licenses granted, and select the persons licensed on some proof of their character or upon the certificate or application of magistrates or neighbors, vouching for them. The second is that adopted in Ann Arbor, requiring a considerable license fee, and security for good behavior. Both of these methods have been legalized in different times and places, separately or together.

Under the territorial laws, and for many years after the organization of the state, licenses were confined to such number of taverns as should be deemed necessary for the accommodation of travelers, and they could only be granted on satisfactory evidence that the person applying was of good moral character, and of sufficient abilities...