Safeway Stores, Inc. v. Nebraska Liquor Control Commission

• Decision Date: 04 March 1966
• Docket Number: No. 36105,36105
• Citation: 140 N.W.2d 668,179 Neb. 817
• Parties: SAFEWAY STORES, INCORPORATED, a Corporation, Appellant, v. NEBRASKA LIQUOR CONTROL COMMISSION et al., Appellees.
• Court: Nebraska Supreme Court

Page 668

140 N.W.2d 668

179 Neb. 817

SAFEWAY STORES, INCORPORATED, a Corporation, Appellant, v. NEBRASKA LIQUOR CONTROL COMMISSION et al., Appellees.

No. 36105.

Supreme Court of Nebraska.

March 4, 1966.

Syllabus by the Court

1. Whether it appears that unconstitutional portions of an act can be separated from the valid portions and the latter enforced independent of the former, and it further appears that the invalid portions did not constitute such an inducement to the passage of the valid parts that they would not have been passed without them, the former may be rejected and the latter upheld.

2. While it is competent for the Legislature to classify for purposes of legislation, the classification, to be valid, must rest on some reason of public policy, some substantial difference of situation or circumstance, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects to be classified.

3. The Legislature has plenary powers over the control and regulation of the manufacture, distribution, sale, and dispensing of alcoholic liquors.

4. Where exemptions from the operation of a general law dealing with intoxicating liquors are made applicable to persons of the same class similarly situated, such provisions are not invalid as granting special privileges or immunities.

5. A provision in a general law regulating and controlling the sale of intoxicating liquors exempting hotels with more than 25 sleeping rooms from a limitation of two package liquor licenses per person, is the grant of an exception or privilege not prohibited by the Constitution where it operates uniformly upon all alike in the same situation.

6. The right to engage in the sale of intoxicating liquors involves a mere privilege; and restrictive regulations or even a suppression of the traffic do not deprive persons of property without due process of law, violate the privileges or immunities clause, the due process clause, the uniformity provisions, nor, unless they contain irrational classifications or invidious discriminations, the equal protection of the law as prohibited by the state and federal Constitutions.

7. A statute providing that no person, with certain exceptions, should thereafter acquire more than two liquor retail licenses, but that persons holding multiple licenses on the effective date of the act would not be required to divest them, is to be read as limiting the holding of retail liquor licenses to two per person, without, however, disturbing existing multiple licenses in the hands of one person.

8. Section 5 of L.B. 105, Laws 1963, c. 308, § 5, p. 910, now section 53-124.06, R.S.Supp., 1963, is unconstitutional for vagueness, indefiniteness, and uncertainty.

9. Section 5 of the act was not an inducement for the passage of L.B. 105, (Laws 1963, c. 308, p. 909), and, a workable and enforcible plan remaining, the valid portions will be upheld and the invalid parts rejected.

10. A severability clause expressing legislative intent is not essential to a court's declaration of severability of the void portions of a statute. Such a clause when placed in a statute is merely an aid to judicial interpretation.

Kennedy, Holland, DeLacy & Svoboda, R. A. Skochdopole, Yale, C. Holland, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Robert R. Camp, Asst. Atty. Gen., Lincoln, for appellees.

Jack W. Marer, Michael L. Lazer, Omaha, Emory P. Burnett, Lincoln, amicus curiae.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.

CARTER, Justice.

On February 8, 1963, safeway Stores, Inc., filed an application with the Nebraska Liquor Control Commission for a 'Beer Off Sale Only' license to engage in the sale of beer at 2924 Leavenworth Street in Omaha. The application was referred to the city council of Omaha, as the statute requires, and on February 19, 1963, the city council recommended to the commission that the application be granted. On March 7, 1963, the chief enforcement officer of the commission protested the grant of the application on the ground that the applicant already had more than two such licenses and that L.B. 105, Laws 1963, c. 308, p. 909 (now sections 53-124.02 to 53-124.07, R.S.Supp., 1963), made the applicant ineligible for further licenses. The commission sustained the protest of the chief enforcement officer and denied the application. On appeal to the district court for Lancaster County, the denial of the application was sustained. Safeway Stores, Inc., thereupon perfected its appeal to this court.

The parties stipulated that Safeway Stores, Inc., had all the qualifications for the granting of a license to it except for the restrictions contained in L.B. 105. It was further stipulated that Safeway was the holder of 10 'Beer Off Sale Only' licenses and one package liquor license on the date of the filing of the application herein. The evidence taken before the commission was also stipulated as evidence in the district court. The sole question is the constitutionality of L.B. 105. In this connection it was stipulated that L.B. 105 was passed on February 26, 1963, with the emergency clause attached, and was signed by the Governor on March 4, 1963. It was further stipulated that the chief enforcement officer filed his protest on March 7, 1963, and that the order of the commission denying the application was rendered on March 22, 1963.

The plaintiff contends that the act discriminates between hotels having more than 25 sleeping rooms, and other types of business in the same class, and, in addition thereto, that it discriminates between members of the same class in that it provides a different application as between hotels containing 25 sleeping rooms and those containing less than 25.

The general rule as to classification for purposes of legislation has been stated many times by this court to be as follows: 'The rule established by the authorities is that, while it is competent for the legislature to classify, the classification, to be valid, must rest in some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects classified.' State ex rel. Dawson County v. Farmers' & Merchants' Irr. Co., 59 Neb. 1, 80 N.W. 52. See, also, United States Cold Storage Corp. v. Stolinski, 168 Neb. 513, 96 N.W.2d 408; Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N.W.2d 475.

The Legislature has broad powers in the regulation and control of the sale and dispensing of alcoholic liquors. The statute before us is not a revenue law. Its purpose is the regulation and control of the liquor traffic and, as such, is in a somewhat different position than in the ordinary exercise of the police power for the protection of the health, safety, morals, and welfare of the public. But even so, justification for classification must exist; arbitrary treatment cannot be sustained. It is not always fatal for the Legislature to exempt certain members of a class from the operation of an act applicable to the whole class. In State ex rel. Meyer v. Knutson, 178 Neb. 375, 133 N.W.2d 577, in dealing with this precise question, we said: 'But the Legislature may properly prescribe the limits of its regulation. Here the Legislature concluded to exempt all persons from the statute while engaged in construction work for themselves, in the construction of buildings covering less than 5,000 square feet and the construction cost is less than $20,000, and other similar exemptions. The exemptions are uniform as to class. The extent of the regulation under such circumstances is within the scope of the Legislature's prerogative.' On the other hand, we held in United States Cold Storage Corp. v. Stolinski, supra, that a statute requiring warehousemen to furnish the tax assessor with lists of property in their warehouses was void because it excluded household goods from the act, thus creating an arbitrary classification of warehousemen and granted privileges and immunities to some which it denied to others. The question before us resolves itself into a determination of which of the two principles applies in the instant case.

In the United States Cold Storage Corp. case the court was dealing with a taxation matter. All property in the warehouses was taxable. We held that the exclusion of household goods under a taxation statute, without any justifiable reason for its exclusion, was arbitrary and unreasonable, and lacking in uniformity of taxation. In the Knutson case we were dealing with a statute providing for the licensing of architects. The Legislature in determining the scope of the act exempted certain members of the class from the operation of the act. As an example, it excluded architects from the licensing provisions who were engaged in construction work for themselves on buildings of limited size and cost. Such exemptions were held to be reasonable and not in violation of the rule of uniformity as to class.

In the case before us the Legislature has broad powers in the regulation and control of the liquor traffic. Allen v Nebraska Liquor Control Commission, 179 Neb. 767, 140 N.W.2d 413. In regulating and controlling the sale and dispensing of alcoholic liquors it is dealing with a business believed to have a tendency to produce pauperism, vice, misery, and crime. In re Jugenheimer, 81 Neb. 836, 116 N.W. 966, 18 L.R.A.N.S., 386. The right to engage in the sale of intoxicating liquors involves a mere privilege; and restrictive regulations or a suppression of the traffic do not violate provisions of the state and federal Constitutions relating to due process, privileges or immunities, uniformity, nor, unless wholly arbitrary in their discrimination between persons, the equal protection of the law. Marsh & Marsh, Inc. v. Carmichael, 136 Neb. 797, 287 N.W. 616.

The primary issue is whether or not justification exists for exempting...