Schmidt v. City of Indianapolis

• Decision Date: 21 March 1907
• Docket Number: No. 20,798.,20,798.
• Citation: 168 Ind. 631,80 N.E. 632
• Parties: SCHMIDT v. CITY OF INDIANAPOLIS.
• Court: Indiana Supreme Court

168 Ind. 631

80 N.E. 632

SCHMIDT

v.CITY OF INDIANAPOLIS.

No. 20,798.¹

Supreme Court of Indiana.

March 21, 1907.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Prosecution of Gustav G. Schmidt by the city of Indianapolis. Defendant was convicted, and appeals. Affirmed.Harvey, Pickens, Cox & Kahn, for appellant. Frederick E. Matson, City Atty., and Joseph F. Cowern, for appellee.

MONTGOMERY, C. J.

In the police court of the city of Indianapolis appellant was convicted of violating an ordinance which prohibits the conduct or maintenance within the city of a brewery, or a depot or agency of a brewery, without a license. He appealed from this judgment to the superior court of Marion county, wherein he refiled his answer in two paragraphs. The first paragraph was a general denial, and the second pleaded certain facts affirmatively. The court sustained appellee's demurrer, for want of facts, to the second paragraph of answer, to which decision appellant duly excepted, and thereupon withdrew the general denial, and announced an election to stand upon the sufficiency of the second paragraph, declined to amend or to plead further, and the court adjudged appellant guilty as charged, and assessed a fine of $5 and costs.

The only error assigned is the sustaining of appellee's demurrer to the second paragraph of answer. The ordinance in question provides (1) that it shall be unlawful for any person, firm, association, company, or corporation to establish, conduct, or maintain in the city of Indianapolis any brewery, distillery, or depot or agency of any brewery or distillery without complying with the provisions of the ordinance; (2) that an annual license fee of $1,000 shall be charged and paid for each brewery, distillery, depot, or agency, so established, conducted, or maintained, and on the payment of such a fee a license shall be issued for one year, designating the place where such brewery, distillery, depot, or agency is to be established, conducted, or maintained; (3) that “any structure or enclosure within said city used by any person, firm or corporation for the receipt and storage of liquors brewed by any brewery without said city and shipped to said city for sale or distribution to wholesale or retail dealers in such liquors shall be considered a depot of a brewery under the provisions of this ordinance, whether such deposit or storage be made by the owner of said brewery, or the agent of such owner, or by a purchaser from said brewery handling said liquors on his own account”; (4) that a register of the name of the receiver, date of issuance, and expiration of such licenses and location of such distillery, brewery, depot, or agency shall be kept; (5) that during business hours all such places shall be open to inspection by the police officials, board of health, and chief of the fire force of the city; (6) that no liquors shall be distilled, brewed, or kept containing poisonous or injurious drugs, or other deleterious substances, and all liquors kept at such places shall be subject to examination and tests as to their purity by inspectors of the board of health; (7) that all such places and premises shall be kept clean and free from any unwholesome material or by-product giving of noxious or offensive odors, and requiring immediate removal of any accumulation of such material on notice from the health officers; (8) that such liquor shall be guarded from contact with fire, and making it the duty of the fire chief to see that the storage of such liquors is not subject to danger from fire; (9) that it shall be unlawful to allow minors to congregate on the premises of any such brewery, distillery, depot, or agency; (10) that it shall be unlawful to sell in less quantity than a quart or to give away any liquors to be drank upon any such premises; (11) that a penalty not exceeding $100 per day for a violation of any provision of the ordinance may be assessed; (12) that all conflicting ordinances be repealed; (13) that the ordinance take effect from and after its passage and publication.

The second paragraph of answer set out verbatim the ordinance upon which the prosecution was founded, exhibited the manner in which it was amended at the time of its adoption, alleged that the Pabst Brewing Company is a corporation organized under the laws of the state of Wisconsin and engaged in the manufacture of beer at Milwaukee and for more than 10 years has been engaged in selling the same in Indiana and other states, described the manner in which it is inclosed in casks, barrels, and bottles, transported and stored; averred that it is pure, prepared for shipment under the supervision of competent scientists, sold at wholesale only in original packages to dealers and consumers, and that none is sold on Sunday or sold or given away to minors or to persons in the habit of becoming intoxicated or to be drank upon the premises where sold; that the premises are kept clean and free from unwholesome substances and noxious odors, and minors are not allowed to congregate in the vicinity thereof, and that there is no more danger of fire or explosion from the storage of such beer than from the storage of other merchandise; that appellant is the special agent of the Pabst Brewing Company and charged with the duty of receiving, storing, and caring for shipments of beer at Indianapolis, and selling the same in said city and surrounding territory; that the ordinance discriminates in favor of personswho may handle and deal in beer brewed in the city of Indianapolis, and also in favor of distilleries and against breweries; that it grants to citizens of Indianapolis privileges and immunities which upon the same terms are witheld from citizens outside of said city, in violation of section 23, art. 1, of the Constitution of Indiana; that it denies to citizens of other states privileges and immunities granted to citizens of Indiana; that it levies a tax upon commerce between the states in violation of section 8, art. 1, of the Constitution of the United States; that the license fee charged is excessive; that three other brewing companies are located within the city of Indianapolis, and engaged in the manufacture and sale of beer in competition with the Pabst Brewing Company; that other persons within the city are engaged in buying beer from breweries and selling the same in like manner as appellant, from whom no license is required; that the object of the ordinance is not police regulation, but to oppress and discriminate against the business of breweries located outside of the city, and the same is so enforced as to favor the business of breweries located within the city of Indianapolis. The charter of the city of Indianapolis empowers its common council to enact an ordinance “to tax, license and regulate distilleries, and breweries, and the depots and agencies established in said city of all breweries and distilleries.” Section 3794, Burns' Ann. St. 1901. The ordinance was enacted in pursuance of this statute, and its subject-matter was plainly within the authority expressly granted. Under such circumstances the motives and purposes inducing the passage of the ordinance are irrelevant, and courts will not inquire into or consider a charge of an improper or sinister purpose on the part of members of the common council in the adoption of such ordinance. The allegations of the answer concerning the purpose of the council in the passage of the ordinance must be disregarded. Downey v. State, 160 Ind. 578, 67 N. E. 450;Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495;Lilly v. City of Indianapolis, 149 Ind. 648, 49 N. E. 887; Buell v. Buell, 20 Iowa, 282;Freeport v. Marks, 59 Pa. 253; 26 Am. & Eng. Ency. of Law, 569. The charge that the ordinance at a given time was unfairly enforced is too general to present any question. No facts were alleged upon which to rest the conclusion of the pleader that the ordinance is so enforced as to favor the business of breweries located within the city. Without intimating that the validity of a penal ordinance may be assailed on the ground of partiality in its enforcement, we hold that, in the absence of facts pleaded showing a fixed and continuous policy of unjust discrimination on the part of the municipality, we will not enter upon a consideration of the question suggested. The general purpose of the ordinance is manifest from its terms and from the charter provisions quoted, and the question for determination is whether this enactment for the achievement of that purpose violates the fundamental law.

Appellant's counsel contend that this is a taxing ordinance, and that the police regulations were embodied as a mere cloak to conceal its true character and object. We are required, at the threshold, to decide whether the sum exacted by this ordinance is a license fee imposed under the police power or a tax for revenue. Ordinances enacted in relation to the comfort, health, convenience, good order, morality, security, and general welfare of the inhabitants are comprehensively known as police regulations. Where a fee is imposed for the purpose of such regulation and the ordinance requires compliance with prescribed conditions in addition to the payment of the fee, such sum is a license proper imposed by virtue of the police power; but, where the fee is imposed solely for revenue purposes, and payment thereof gives the right to carry on the business without the performance of any further conditions, it is a tax. 21 Am. & Eng. Ency. Law, 774, and cases cited. Where a municipal regulation is adopted, which would be lawful if intended for one purpose, and unlawful if for another, the presumption is that the purpose was lawful, unless the contrary clearly appears. Johnson v. Philadelphia, 60 Pa. 445;Lansdowne Borough v. Springfield Water Co., 16 Pa. Super. Ct. 490;Robson v. Doyle, 191 Ill. 566, 61 N. E. 435;...