Sparger v. Harris
| Decision Date | 08 December 1942 |
| Docket Number | 31221. |
| Citation | 131 P.2d 1011,191 Okla. 583,1942 OK 418 |
| Parties | SPARGER v. HARRIS, City Manager, et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under constitutional provision for adoption of home-rule charter, city adopting such charter is accorded full power of local self-government and, as such, municipal corporation has power to enact, ordain, and enforce ordinances for purpose of protecting public peace, order, health, morals, and safety of inhabitants, even though general statutes exist relating to same subjects. Const. art. 18, sec. 3(a).
2. The provisions of a charter, adopted and approved in accordance with such constitutional provision, supersede all laws of the state in conflict therewith in so far as such laws relate to merely municipal matters.
3. Such charter provisions, where they conflict with the general laws of the state, must give way, and, while they may run current with the general laws of the state, they may not run counter thereto.
4. Where the Legislature has made or may by general law make a specific police regulation, that fact of itself will not prevent the lawmaking power of a city from making further regulations on the same subject, not inconsistent with general laws. A municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction.
5. Provisions of an ordinance of the City of Ardmore prohibiting the sale of 3.2 beer on Sunday held invalid.
Appeal from District Court, Carter County; Marvin Shilling, Judge.
Action by G. W. Sparger against Clarence Harris, City Manager of the City of Ardmore, and Tom Kyle, Chief of Police of the City of Ardmore, to restrain the enforcement of a city ordinance of the City of Ardmore prohibiting the sale on Sunday of beer containing not more than 3.2 per cent. of alcohol by weight. From an adverse judgment, the plaintiff appeals.
Reversed.
Sigler & Jackson, of Ardmore, for plaintiff in error.
J. B Moore, of Ardmore, for defendants in error.
This case is presented on appeal from the District Court of Carter County. It involves the validity of an ordinance of the City of Ardmore, a city operating under a charter form of government, prohibiting the sale on Sunday of beer containing not more than 3.2% of alcohol by weight, commonly called "three-two beer". There are other provisions of a regulatory nature contained in the ordinance which do not constitute the basis of any attack in this proceeding and which will therefore not be a subject of discussion in this opinion.
The action was instituted in the trial tribunal on November 12 1942, by G. W. Sparger, as plaintiff, against Clarence Harris, City Manager of the City of Ardmore, and Tom Kyle Chief of Police of the City of Ardmore, as defendants.
The plaintiff in his petition alleged in substance his ownership of a place of business in the City of Ardmore known as "Puny's Steak House" where he sells all kinds of food and lawful drinks, including 3.2 beer. Plaintiff asserts that his profits from the sale of such beer constitutes a substantial part of his income from the business. That he has, in compliance with and in accord with the law of the State of Oklahoma, procured a license to sell such beer which he asserts entitles him, as a matter of law, to sell beer seven days in the week. He sought injunctive relief against the enforcement of the ordinance.
In their answer the defendants incorporated a general denial, excepting only such matters as should be thereafter admitted. They then admitted that plaintiff was engaged in the restaurant business and sold 3.2 beer. They also admitted that such beer is a legal and lawful commodity in Oklahoma, but asserted that the sale is subject to regulation and that if taken in sufficient quantities it would produce intoxication. They assert that the city ordinance attacked in this proceeding constitutes a valid regulative enactment by the legislative body of the municipality.
To this answer the plaintiff demurred, which demurrer was by the court overruled and the plaintiff thereupon elected to and did stand upon his demurrer. Thereupon the defendants at their own instance introduced proof. Thereafter judgment was rendered for the defendants. The plaintiff appeals, appearing herein as plaintiff in error.
The plaintiff has, by his demurrer and election to stand thereon, admitted the truth of all of the statements in the answer. The proof of the defendants need not be examined for the purpose of determining its sufficiency.
The Prohibition Ordinance of our State Constitution prohibits the sale of intoxicating liquors within the state. The provisions of that ordinance are selfexecuting. Ex parte Cain, 20 Okl. 125, 93 P. 974. Thus, regardless of legislation on the subject, the sale of intoxicating liquors in the state is prohibited and therefore illegal. The admission of the defendant that 3.2 beer is a legal and lawful commodity necessarily includes an admission that the legislative classification of the beverage (37 O.S.1941 § 162a) as nonintoxicating constituted an appropriate exercise of legislative power. This admission of the defendants eliminates the necessity of any discussion of any question relating to the power of the legislature to make the classification which has been made.
In the light of the formal admission above referred to the subsequent assertion to the effect that beer containing as much as 3.2% of alcohol can result in intoxication if consumed in sufficient quantities is not to be taken as a challenge of the legislative classification as to what is intoxicating liquor. Obviously, its appearance in the pleading is to justify its classification by the Ardmore city ordinance for regulatory purposes on a different basis than other beverages which contain no alcohol at all. This because a classification appearing in a regulatory ordinance of a municipality must be based on some real and justifiable difference in the articles, businesses, occupations or other items differentiated by the classification. 37 Am.Jur. 773 et seq.; Shinn v. Oklahoma City, 59 Okl.Cr. 433, 61 P.2d 1126. The truth of the allegation is admitted by the plaintiff.
The foregoing analysis of the pleadings prescribes the limits of the scope of our inquiry. The inquiry may be further simplified by assuming without deciding that the presence of a small percentage of alcohol in the beverage before us affords a proper and justifiable reason for making a classification between it and other beverages which are the subject of sale and disposal. Thus we are assuming that, if the sale of a legal beverage or drink may be prohibited on Sunday, beer as such legal beverage may be isolated and prohibited without prohibiting the sale of other beverages. This assumption eliminates any question relating to unconstitutional discrimination, and brings us to the single question: Can the sale of a drink which may be legally sold throughout the week be prohibited on Sunday by municipal ordinance? In this jurisdiction the answer to the question is, no. This answer is determined upon consideration of our statutes affecting the subject. 21 O.S.1941 § 908...
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