Sherlock v. Stuart

• Decision Date: 23 June 1893
• Citation: 96 Mich. 193,55 N.W. 845
• Court: Michigan Supreme Court
• Parties: SHERLOCK v. STUART, Mayor, et al.

55 N.W. 845

96 Mich. 193

SHERLOCK v. STUART, Mayor, et al.

Supreme Court of Michigan

June 23, 1893

Mandamus by James Sherlock against William J. Stuart, mayor, William A. Shinkman, clerk, and the city of Grand Rapids. Writ denied.

Morse, McGarry, and McKnight, for relator. Wm Wisner Taylor, City Atty., for respondents.

GRANT J.

The charter of the city of Grand Rapids confers upon the common council the power "to enact such ordinances, by-laws and regulations as they deem desirable, * * * to restrain, license, and regulate saloons, and to regulate and prescribe the location thereof." It further provides that "no person shall engage in or exercise the business or occupation of a saloon keeper within the limits of said city until he is first licensed as such by the common council, under such penalty as the common council may by ordinance prescribe." In conformity with its charter the common council enacted an ordinance, the first section of which reads as follows: "No person shall engage in the business of saloon keeping, in any house or place within the limits of this city, without first having obtained a license for that purpose from the common council." Section 2 of the ordinance reads as follows: "Every person desiring to keep a saloon in the city shall, before a license is obtained for that purpose, make an application in writing to the common council for such license, stating the number or location of the saloon where the business for which the license is asked is to be carried on, which application must be accompanied with a recommendation signed by at least twelve reputable and respectable citizens of this city certifying that the applicant is well known to them, and is of means and qualified to keep a saloon, and is of good reputation, fame, moral character, and an orderly person. Such applicant shall also, before receiving his or her license, pay into the city treasury such sum for said license as the common council shall annually fix for that purpose, and take the treasurer's receipt therefor, and also a fee of fifty cents for issuing such license. Such applicant shall also, before receiving said license, execute a bond to the city of Grand Rapids, in such sum and with such sureties as shall be approved by the common council, conditioned that such applicant shall keep and maintain an orderly and well-regulated saloon during the continuance of his or her license, and shall pay all fines imposed and costs therewith assessed upon him or her, according to law, for a violation of any provisions of this ordinance. Said license, when issued, shall state the number or location of the saloon, as designated in the application, and shall not be transferred to any other part of the city without the consent of the common council; and no license issued as aforesaid shall extend beyond the first Monday in May next after the issue of the same." The relator presented his petition to the council under this ordinance, and the council, by a majority vote, granted the license. The mayor, under the power conferred on him, vetoed this action of the council, and no further action thereon has been taken. The relator now asks this court to compel the respondent to issue the license. The reason given by the mayor for his veto is that the place specified in the petition is unsuitable for a saloon. He presented this reason at length in his message, from which it appears that he has acted in entire good faith, and not from mere caprice, or arbitrarily.

It is contended that the power conferred upon the common council should be exercised by a general ordinance fixing districts or limits within which saloons may be kept, and that the council does not possess the power to hear and determine each individual case. The principle upon which is based the regulation of the liquor traffic is found in the police power of the state. No one possesses a natural, inalienable, or constitutional right to keep a saloon for the sale of intoxicating liquors. "To sell intoxicating liquor at retail is not a natural right to pursue an ordinary calling." Black, Intox. Liq. �� 46, 48. By the constitution of 1850 such sales were absolutely prohibited. By the amendment of 1876 the prohibitory clause was removed from the constitution, and the power vested in the legislature to deal with the traffic as it deemed expedient and wise. In some counties of the state the traffic is now prohibited, while in the others it is regulated by the general law of 1887, and by the charters of municipal corporations. The legislature may now determine who may carry on the business, and the time when, and the place where, it may be carried on. It is manifest that the welfare of society requires that this business should be in the hands of reputable, law-abiding persons. It is notorious that the low, the vicious, and the criminal are often engaged in it. The people, under our constitution, have the right to prohibit such persons from engaging in it. The restrictions and conditions upon it are entirely within the discretion of the people, through the legislature. "It is not for the courts to determine its expediency, or, as said by Mr. Cooley in his work on Constitutional Limitations, 'to run a race of right, reason, and expediency with the legislative branch of the state government."' Robison v. Haug, 71 Mich. 42, 38 N.W. 668; Cooley, Const. Lim. 597. "If the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases." Ex parte Christensen, 85 Cal. 208, 24 P. 747; Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13. The system, in this state, is not purely a tax system. The fee to be paid as a condition precedent to entering upon the business is called a "tax," but there are other conditions precedent which are inconsistent with a purely tax system. These provisions partake of the character of a license. It is said by Black: "Any law which requires certain acts, other than the mere payment of the tax, to be done by the party, as a prerequisite to his right to enter upon the pursuit of the trade in question, and makes it a penal offense to engage in the business without such formalities, is in reality a license law, no matter whether it be called a 'tax,' or by any other name." Black, Intox. Liq. � 108. In Ohio a law nearly parallel in its provisions with the act of 1887 was held to be a license, and not a tax law, and therefore void under the constitution of Ohio. State v. Hipp, 38 Ohio St. 199; Butzman v. Whitbeck, 42 Ohio St. 223. Mr. Justice Campbell, in commenting on the law of 1887, calls this provision "the tax or license for doing business." Robison v. Miner, 68 Mich. 552, 37 N.W. 21. Under this comprehensive police power of the state it is, in my judgment, too clear for argument that the legislature may confer upon municipalities the right to determine the places where saloons may be kept, and to determine that question upon each application. The legislature may also enact that only reputable persons shall be allowed in the business, and to authorize the municipalities to determine the question of fitness. If the state possesses this right, the power to determine these questions must, in the first instance, be lodged in the municipality, or some board representing it, or in some other body or court. There is no presumption that the persons charged with this duty will not perform it, or that they will abuse the discretion given them.

Other considerations than the mere locality must often enter into the determination of the suitableness of the place for a saloon. If the building be so arranged as to render violations of the law easy, or if it is to be kept in connection with a house of prostitution, or if it be not situated upon a street or alley, or if it be in one of the upper stories of a building, or in a part of the city occupied for residence only, or near a school, these would certainly afford good reasons for rejecting the application. Mr. Cooley says: "The state has also a right to determine what employments shall be permitted and to forbid those which are deemed prejudicial to the public good. * * * The general rule, undoubtedly, is that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right cannot be taken away. It is not competent, therefore, to forbid any person, or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others to penalties for employing them. But here, as elsewhere, it is proper to recognize distinctions that exist in the nature of things, and under some circumstances to inhibit employments to some one class, while leaving them open to others. Some employments, for example, may be admissible for males, and improper for females; and regulations recognizing the impropriety, and forbidding women engaging in them, would be open to no reasonable objection. The same is true of young children, whose employment in mines and manufactories is commonly, and ought always to be, regulated. And some employments, in which integrity is of vital importance, it may be proper to treat as privileges merely, and to refuse license to follow them to any who are not reputable." Cooley, Const. Lim. (6th Ed.) 742. In the unreported case of Van Dann v. Uhl, Mayor of the City of Grand Rapids, decided October 29, 1891, (no opinion being filed,) the precise question in the present case was involved, and the writ was denied. It is said in Black on Intoxicating Liquors, (section 170:) "The rule obtains in a few of the states that if a person who desires a liquor license brings himself within the terms of the law, by complying with all the statutory preliminaries, and possessing the...