Nance v. Mayflower Tavern, Inc.

Decision Date25 July 1944
Docket Number6704
Citation106 Utah 517,150 P.2d 773
CourtUtah Supreme Court
PartiesNANCE v. MAYFLOWER TAVERN, Inc

Appeal from District Court, Third District, Salt Lake County; M. J BRONSON, Judge.

Action by Pearl Nance, guardian ad litem for Don Nance, a minor against Mayflower Tavern, Inc., to recover damages for the defendant's refusal to serve food to the plaintiff. From a judgment of dismissal, plaintiff appeals.

Affirmed.

D. H OLIVER, of Salt Lake City, for appellant.

HURD & HURD, of Salt Lake City, for respondent.

WOLFE, Chief Justice. LARSON, McDONOUGH, WADE and TURNER, JJ., concur.

OPINION

WOLFE, Chief Justice.

The plaintiff brought this action to recover damages from the defendant for the latter's refusal to serve food to the plaintiff when the plaintiff presented himself at the defendant's restaurant for service. To the plaintiff's complaint the defendant interposed a general demurrer. The demurrer was sustained, the plaintiff failing to plead over, the action was dismissed. From the judgment of dismissal, the plaintiff prosecutes this appeal.

The complaint alleges that on February 20, 1943, the defendant Mayflower Tavern, was a corporation engaged in the operation of a restaurant and cafe business in Salt Lake City, Utah. That on that date the plaintiff presented himself at the defendant's restaurant for service of food, but that the defendant refused to serve him. The refusal was alleged to have been without cause and in "insulting and humiliating language, and in an offensive manner." This is alleged to have caused the plaintiff great humiliation and embarrassment which injured his "pride, reputation, ambition and aspirations."

The plaintiff also alleged that at the time of the defendant's refusal to serve the plaintiff there was in full force and effect in Salt Lake City, an Ordinance (Sec. 674, paragraph 4, Revised Ordinances of Salt Lake City, Utah) which provided:

"The door or doors of every restaurant shall be and remain unlocked and unfastened during all the time any person or persons, including the keeper, or any employee is therein, and during such time no orderly person shall be refused admission thereto."

The only question presented for our determination is: Does the complaint state facts sufficient to constitute a cause of action? In support of his contention that it does, the plaintiff asserts that the defendant was required by the quoted ordinance to serve food to every person who in an orderly manner presented himself to the defendant's restaurant for service. That the refusal of the defendant to serve the plaintiff was a violation of this ordinance and gave rise to a cause of action for ensuing damages. The defendant contends that the ordinance cannot be so construed. We do not deem it necessary to resolve this conflict. If the ordinance were designed as a "civil rights" measure to compel all operators of restaurants to serve all orderly people, it would be void as being beyond the legislative power which has been delegated to the city which enacted it.

As stated by Dillon, "Municipal Corporations," 1, 2 5th Ed., Sec. 237:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment, of the declared objects and purposes of the corporation, --not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."

This language has been quoted with approval in at least three prior cases in this jurisdiction. See Salt Lake City v. Sutter, 61 Utah 533, 216 P. 234; Logan City v. Buck, 3 Utah 301, 2 P. 706; Salt Lake City v. Revene, 101 Utah 504, 124 P.2d 537. From these authorities it appears clear that cities have no inherent or original legislative power. To determine whether or not a city has the power to enact any particular ordinance the court must look to the legislative grant of power and to the Constitution of the State of Utah. If there is a reasonable doubt concerning the existence of a particular power, that doubt should be resolved against the city, and the power should be denied.

The legislative grant of power upon which the plaintiff relies to support his contention that this ordinance as he construes it would be within the delegated power of the city is Section 15-8-39, U. C. A. 1943. This section grants to cities the power to "license, tax and regulate * * * restaurants, eating houses, lodging houses, * * *." The Constitution, Article XI, Sec. 5, grants to cities forming charters pursuant to the procedure outlined in Section 5 of Article XI the power to exercise "all powers relating to municipal affairs, and to adopt and enforce within its limits, local police, sanitary and similar regulations not in conflict with the general law * * *."

Neither the statute nor the Constitution authorized municipalities to legislate in regard to civil rights. If the statute which authorizes cities to tax, license and regulate restaurants were to be construed as empowering the city to pass a civil rights bill regarding restaurants, the section would also have to be construed so as to permit civil rights legislation by cities in regard to all businesses and occupations enumerated in the same section. It is clear that the legislature never contemplated that cities should have such powers. Even the most liberal civil rights statutes do not purport to embrace many of the types of businesses enumerated in this section. For example, the section covers hawking and peddling, pawn brokers and loan agencies, employment agencies, auctioneers, ticket scalpers, distilleries and breweries, brokers, smelters, crushers, sampling works and mills, boarding houses, laundries, barber shops and beauty shops, drivers of stages, busses, sight-seeing and touring cars, porters, expressmen and draymen, second-hand and junk stores, storage houses, photographers, assayers, billboards, billposting and the distribution or display of advertising matter. The inclusion of these various businesses and occupations quite clearly shows that the legislature did not intend by...

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17 cases
  • State v. Hutchinson
    • United States
    • Utah Supreme Court
    • December 9, 1980
    ...City v. Robinson, 77 Utah 168, 292 P. 249 (1930); Salt Lake City v. Sutter, 61 Utah 533, 216 P. 234 (1923). In Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773 (1944), the Court To determine whether or not a city has the power to enact any particular ordinance the court must look to th......
  • John R. Thompson Co. v. District of Columbia
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 22, 1953
    ...inns, but not restaurants, to serve all travellers. Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906 (1946); Nance v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773 (1944); Beale, Innkeepers and Hotels, 1906, ?? 15, 35, 53, 61, 301; Williston, Contracts (Rev.Ed. v. 4, ? 1066, pp. 2964, 2965)......
  • Marshall v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 9, 1962
    ...or liability of citizens among themselves. Accordingly, an ordinance designed as a 'civil rights' measure is void.' Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773, is cited as the sole authority in support of McQuillin's statement in these two sections that a civil rights measure or ......
  • State v. Avent, 654
    • United States
    • North Carolina Supreme Court
    • January 20, 1961
    ...746; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906; Wilmington Parking Authority v. Burton, Del., 157 A.2d 894; Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773. See 10 Am.Jur., Civil Rights, § 21; Powell v. Utz, D.C., 87 F.Supp. 811; and Annotation 9 Am. & Eng.Ann.Cas. 69--statutes......
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