Norman v. City of Las Vegas

• Decision Date: 07 February 1947
• Docket Number: 3470.
• Citation: 177 P.2d 442,64 Nev. 38
• Parties: NORMAN et al. v. CITY OF LAS VEGAS et al.
• Court: Nevada Supreme Court

177 P.2d 442

64 Nev. 38

NORMAN et al. v. CITY OF LAS VEGAS et al.

No. 3470.

Supreme Court of Nevada

February 7, 1947

Appeal from District Court, Eighth Judicial District, Clark County Frank McNamee, Judge.

Action by Barbara Jeane Norman and others against the City of Las Vegas, Nevada, a municipal corporation and others to enjoin enforcement of a city ordinance requiring employees of establishments where alcoholic beverages are sold at retail for consumption on the premises, to register with the police department of the city and submit to finger printing and thumb printing and photographing, wherein defendants filed a demurrer. From on order vacating the temporary restraining order and sustaining the general demurrer to the complaint the plaintiffs appeal.

Affirmed.

See also 175 P.2d 429.

Morse & Graves, of Las Vegas, for appellants.

C Norman Cornwall, of Las Vegas, for respondents.

BADT District Judge.

Do the provisions of Sections 3, 4 and 5 of Ordinance No. 305 of the city of Las Vegas, requiring the finger printing and photographing of all persons seeking employment in establishments selling alcoholic beverages at retail for consumption on the premises (excepting the employees of cafes and restaurants) and requiring the imprints to be forwarded to the California and Federal Bureaus of Indentification, and requiring that the Chief of Police of Las Vegas be notified of the returns thereon, and making it unlawful for the owners of establishments to employ such persons without such registration, violate the privileges and immunities clause of the United States Constitution, Art. 4, § 2, or Nevada's constitutional guarantees of life, liberty and the pursuit of happiness, Art. 1, § 1?

The trial court answered this question in the negative and sustained a general demurrer to the complaint (which sought a declaratory judgment, declaring the sections void and enjoining their enforcement) and vacated the temporary restraining order that had been issued ex parte restraining the enforcement of the ordinance. The plaintiffs declined to plead over and appealed from the order. No final judgment was entered, but both parties have treated the order as a final disposition of the case in the District Court. The applicable parts of the ordinance, generally and loosely described above, are as follows:

Section 1, Subdivision B: "Employees of Establishments where Alcoholic Beverages are sold at Retail on the Premises' shall mean bartenders, waiters and any other person who serves alcoholic beverages to patrons for consumption on the premises, save and excepting the employees of cafes and restaurants.'

Section 2: 'It is hereby declared to be the policy of the City of Las Vegas, as herein expressed by the Board of Commissioners of the City of Las Vegas, that the safety, morals, good order and general welfare of the inhabitants of the City of Las Vegas will be better protected and served, by requiring the registration with the Police Department of said City, and the thumb, finger-printing, and photographing of all employees of gambling houses, taxi dirvers, and employees of establishments where alcoholic beverages are sold at retail and served on the premises, as such employees and establishments are defined in Section 1 of this Ordinance.'

Section 3 of said Ordinance provides as follows: 'It shall be unlawful for any person to accept employment in any gambling house, as a driver or operator of any taxicab, or in any establishment where alcoholic beverages, as defined in Section 1 hereof, are sold at retail and consumed on the premises, unless such person shall first have registered his name and address with the Police Department of the City of Las Vegas and shall have had his thumb, fingerprints, and photograph taken and filed with the Bureau of Identification of the City of Las Vegas.'

Section 4 of said Ordinance provides as follows: 'Upon such employee complying with the provisions of Section 3 hereof the Chief of Police shall issue a certificate to such employee showing compliance therewith, and the Bureau of Identification shall forthwith send a copy of such imprints to the Bureau of Identification of the State of California, and one copy to the Identification Bureau of the Federal Bureau of Investigation at Washington, D. C., with the request that all information as to the previous record, if any, of such person, be forthwith transmitted to the Bureau of Identification at Las Vegas, Nevada. Upon receipt of such information the Bureau of Identification at Las Vegas shall forthwith notify the Chief of Police. The information, if any, received as aforesaid shall be treated as confidential and shall only be made accessible to the Mayor and Board of Commissioners of the City of Las Vegas, the employer of such person, and to law enforcement officer.'

Section 5 of said Ordinance provides as follows: 'It shall be unlawful for any person, firm or corporation operating a gambling game, taxicab or taxicabs, or an establishment where alcoholic beverages are sold at retail for consumption on the premises, to employ any person required to register with the Police Department by the terms of this Ordinance, unless such person shall have so registered with the Police Department of the City of Las Vegas and had his thumb, fingerprints and photograph taken and filed with the Bureau of Indentification of the City of Las Vegas.'

Several preliminary matters require attention. Plaintiff Norman is a waitress employed in an establishment at Las Vegas where alcoholic beverages are served to patrons at retail for consumption on the premises, and in the course of her employment she serves alcoholic beverages to patrons for consumption on the premises. Plaintiff McGovern is likewise an employee of an establishment at Las Vegas where alcoholic beverages are sold at retail on the premises, and his employment consists of dispensing alcoholic beverages at retail on the premises to patrons of his employer for consumption on the premises. These two plaintiffs allege that they bring this action on their own behalf and on behalf of all persons similarly situated. Plaintiff Bartenders Union, Local 165, is an organization consisting of bartenders, some of whom are employees of establishments in the City of Las Vegas where alcoholic beverages are sold at retail on the premises to patrons for consumption on the premises. Plaintiff Culinary Workers Union, Local 226, is an organization in the City of Las Vegas whose members comprise waiters and waitresses, some of whom are duly and regularly employed at Las Vegas in establishments where alcoholic beverages are sold at retail on the premises to patrons for consumption. Both plaintiff unions allege that they join as plaintiffs on their own behalf and also in a representative capacity on behalf of all of their members so employed.

Respondent contends (1) that neither of the plaintiff associations or organizations has such existence in law as to be capable of maintaining an action in its own name; (2) that neither is a real party in interest; (3) that neither is a citizen of the United States and therefore not entitled to the privileges and immunities guaranteed by the Constitution of the United States; (4) that this is not a true class suit and that the two individual personal plaintiffs may not sue on behalf of all persons similarly situated. By reason of the views hereinafter expressed it becomes unnecessary to pass upon these points.

Appellants go to some length in attacking the validity of the ordinance as applied to taxi drivers and gambling house employees. Respondent also has devoted a material part of its brief to an exposition of the reasonableness of the classification of taxi drivers and gambling house employees as subject to the requirements of the ordinance. The learned District Judge, in dealing with this phase of the case, said: 'The plaintiffs, being associated in one form or another only with the business of dealing in liquor, as appears from the complaint, cannot legally complain of the ordinance insofar at it provides regulatory measures for taxi drivers and for employees of gambling houses. Adams v. American Agricultural Chemical Co., 78 Fla. 362, 82 So. 850; Murphy v. People of California, 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229, 41 L.R.A., N.S., 153. In other words, the validity of the ordinance with respect to taxi drivers and gambling house employees is not involved in this action.'

We are in entire accord with this view. Although appellants complain that there is an unreasonable discrimination between taxi drivers, on the one hand, and chauffeurs, bus drivers, station wagon drivers, truck drivers, etc., on the other, none of the plaintiffs in this case would be affected by such alleged unreasonable discrimination, would not suffer thereby, and 'is not in position to complain.' Murphy v. People of California, supra [225 U.S. 623, 32 S.Ct. 699].

It is further maintained that the Board of City Commissioners of the City of Las Vegas, was without statutory authority to adopt the ordinance in question. We consider the authority ample. N.C.L.1931-41 Sup.Sec. 3681, 3690, 3691, 3690.17. Las Vegas Charter, Laws 1911, c. 132, § 31, subds. 10, 81, as amended, Stats.Nev.1939, Chap. 155, § 10; State ex rel. Grimes v. Board of Commissioners, 53 Nev. 364, 1 P.2d 570.

We are confronted then with the question presented at the beginning of this opinion, namely, whether the sections in question are valid and are not in violation of the constitutional rights asserted, so far as these sections apply to persons accepting employment in an establishment where alcoholic beverages are sold at retail and consumed on the premises. Although the parties stipulated to submit their appeals without...