McClure v. Topf & Wright

• Decision Date: 06 April 1914
• Docket Number: 248
• Parties: MCCLURE v. TOPF & WRIGHT
• Court: Arkansas Supreme Court

166 S.W. 174

112 Ark. 342

MCCLURE v. TOPF & WRIGHT

No. 248

Supreme Court of Arkansas

April 6, 1914

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

Judgment reversed and cause remanded.

Isgrig & Cannon, for appellant.

1. The act is not unconstitutional. It does not violate art. 2 § 3, Constitution, nor § 18, art. 2, of this State nor the Fourteenth Amendment to the Constitution of the United States. The act is solely a police regulation, and States have the right to regulate, control or entirely suppress the liquor traffic. The sale of liquor is not a privilege nor immunity within the Constitution. 39 Ark. 353; 27 Vt. 140; 43 Id. 42; 69 Id. 525; 33 Id. 443; 148 F. 513; 16 Wall. 36; 97 U.S. 659; 177 Id. 595; 85 Cal. 208; 118 U.S. 356; 137 Id. 86; 187 U.S. 606; 254 Ill. 624; 101 Va. 323; 148 U.S. 657; 152 Id. 133; 26 F. 196; 72 Ark. 171; 167 U.S. 43; 177 Id. 183. The courts universally recognize cases which are not harmful or dangerous, and distinguish them from those universally recognized to be dangerous to the public health, safety or morality of the community. The former are privileges; the latter are not. Cases supra.

Morris M. & Louis M. Cohn, for appellees.

1. The act discriminates against races, which is in violation of the Constitution. The petition is in the nature of an election. 51 Ark. 164; 70 Id. 175; 77 Id. 154; 81 Id. 208.

2. The act violates the Fourteenth and Fifteenth Amendments to the Constitution of the United States, and art. 2, §§ 3 and 18, of the Constitution of Arkansas. 16 Wall. 36-81; 92 U.S. 542, 555-6; 110 Id. 664; 206 N.Y. 231; 182 F. 223; 207 Mass. 601; 121 F. 250; 61 L.R.A. 437; 55 Ala. 468; 48 Cal. 36; 23 F. 634; 72 Id. 689; 83 Ky. 49; 94 N.C. 800; 67 F. 829.

3. No discrimination can be made between whites and negroes; all are entitled to the equal protection of the laws. The petition for liquor is a privilege. 26 Ark. 523; 27 Id. 625; 43 Id. 42; 43 Id. 53; 161 S.W. 154; 129 Cal. 337; 54 L.R.A. 771; 57 Id. 115; 188 Ill. 176; 52 L.R.A. 283; 20 Am. St. 176; 83 N.E. 215; 158 F. 5, 9, 10, 11; 231 Ill. 302.

4. The Fourteenth Amendment is compulsory upon the States. 16 Wall. 36; 143 U.S. 135; 118 Id. 368; 195 U.S. 223.

J. W. & J. W. House, Jr., for appellees.

1. The act is unconstitutional. Const. Ark., art. 2, §§ 3, 18; Fourteenth Amendment Const. of U. S. It discriminates between classes, denying privileges to one class of persons. 54 (U.S.) Fed. 338; 50 Tenn. 287; 38 N.W. 95; 38 Minn. 366; 33 Am. Dec. 633; 41 P. 635; 3 Okla. 677.

2. Petitions of this character are held to be in the nature of an election. 51 Ark. 159; 73 Id. 421; 75 Id. 158; 70 Id. 175. The act is a clear discrimination against the negro, and is void. 43 Ark. 42; 161 S.W. 154; 75 Ark. 542; 37 Id. 362; 53 Id. 490; 148 Pa.St. 482; 120 U.S. 488; 184 Id. 540; 50 So. 493; 41 A. 126; 73 S.E. 154; 103 U.S. 370; 107 Id. 110-199; 110 Id. 651; 146 Id. 1; 100 Id. 313; 170 Id. 213.

3. Although the act is intended to be a mere police regulation, the discrimination as between whites and blacks can not be made. 113 U.S. 32; 118 Id. 356; 100 U.S. 303.

H. C. Mechem, amicus curiae.

Only a person injured or discriminated against can raise the question of the unconstitutionality of a statute. None signing the petition are negroes. 20 S.W. 285; 4 Id. 316; 80 Ga. 775; 79 Ky. 22; 54 Miss. 592; 22 Gratt. 833; 47 Oh. St. 478; 30 P. 293; 72 N.Y. 911; 88 Pa.St. 42.

N. B. Scott, amicus curiae.

If the exclusion of negroes be unconstitutional, the balance of the act is constitutional. The void part may be excluded and the act held constitutional. 192 U.S. 418; 24 S.Ct. 383, 48 Law Ed. 504; 93 Ark. 612; 89 Ark. 466; 53 Id. 490; 37 Id. 356.

HART, J. KIRBY, J., not participating.

OPINION

HART, J.

The only issue sought to be raised by this appeal is as to the constitutionality of Act No. 59 of the last (1913) General Assembly, entitled "An Act to regulate the issuance of liquor license in Arkansas."

Other questions might be discussed and determined, but, as said by the court in considering the local option act of 1881 in the case of Trammell v. Bradley, County Judge, 37 Ark. 374, "in view of the grave public interests involved in the question, the court consents" to waive every point except that of determining the constitutionality of the act, and we proceed at once to a consideration and decision of that question.

So much of the act as is necessary for a determination of the issue raised by the appeal is as follows:

"Section 1. It shall be unlawful for any court, town or city council, or any officer thereof, to issue a license or permit, or any other authority to any corporation, person or persons, to sell, barter, or give away, any alcoholic, malt, vinous or spirituous liquors, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, within the State of Arkansas, except as provided in this act.

"Section 2. When a majority of the adult white inhabitants living within the incorporated limits of any incorporated town or city in this State shall have signed a petition to the county court of the county in which said town or city is situated, asking that license for the sale of intoxicating liquors be issued for that town or city, then the said county court may issue such license for a period already provided by law.

"Provided, that the majority of the votes cast at the last general election in that county on the question of 'For License' and 'Against License' was in favor of 'For License.'"

It is not to be doubted that the Legislature has the power to make the written laws of the State unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.

In regard to the objection that the act in question is in conflict with the Fourteenth Amendment to the Constitution of the United States, it may be said that it has uniformly been held by the Supreme Court of the United States that the right to engage in selling intoxicating liquors is not one of the privileges or immunities of citizens of the United States, which the States are forbidden to abridge by the Fourteenth Amendment to the Constitution. Bartemeyer v. Iowa, 85 U.S. 129, 18 Wall. (U.S.) 129, 21 L.Ed. 929; Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205, 8 S.Ct. 273; Crowley v. Christensen, 137 U.S. 86, 34 L.Ed. 620, 11 S.Ct. 13; Giozza v. Tiernan, 148 U.S. 657, 37 L.Ed. 599, 13 S.Ct. 721.

The courts generally treat the liquor traffic as being wholly within the control of the State through the exercise of its police power, and its sale may be regulated or restricted as the State sees fit, even to the extent of total prohibition. 23 Cyc. 81; 17 Am. & Eng. Enc. of Law, 211, 212.

In Crowley v. Christensen, supra, the Supreme Court of the United States, through Mr. Justice Field, said:

"The sale of such liquors in this way has theretofore been at all times by the courts of every State considered as the proper subject of legislative regulation. * * * It is a question of public expediency and public morality and not of Federal law. The police power of the State is fully competent to regulate the business, to mitigate its evils, and to suppress it entirely. There is no inherent right of a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of a State or of a citizen of the United States. * * * The manner and extent of regulation rest in the governing authority. * * * It is a matter of legislative will only. As in many other cases, the officers may not always exercise the power conferred upon them with wisdom or justice to the parties affected. But this is a matter which does not affect the authority of the State, nor is it one which can be brought under the cognizance of the courts of the United States."

Again, in the case of Giozza v. Tiernan, supra, Mr. Chief Justice Fuller, speaking for the court, said:

"But it is contended that the act conflicts with the provisions of the Fourteenth Amendment that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' The privileges and immunities of citizens of the United States are privileges and immunities arising out of the nature and essential character of the National Government, and granted or secured by the Constitution of the United States, and the right to sell intoxicating liquors is not one of the rights growing out of such citizenship. Bartemeyer v. Iowa, 85 U.S. 129, 18 Wall. (U.S.) 129, 21 L.Ed. 929. The amendment (Fourteenth) does not take from the States their powers of police that were reserved at the time the original Constitution was adopted. Undoubtedly it forbids any arbitrary deprivation of life, liberty or property and secures equal protection to all under like circumstances in the enjoyment of their rights, but it was not designed to interfere with the power of the State to protect the lives, liberty or property of its citizens, and to promote their health, morals, education and good order."

The same principles have been reaffirmed by later decisions of the Supreme Court of the United States. See Eberle & Carroll v. The People of the State of Michigan, 232 U.S. 700, 58 L.Ed. 803, 34 S.Ct. 464, opinion by Mr. Justice Lamar, delivered March 23, 1914.

Counsel for appellees rely upon the case of Yick Wo v Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064, relating to the regulation of laundries. The court held the...