State ex rel. Grigsby v. Buechler

• Decision Date: 20 July 1897
• Citation: 10 S.D. 156,72 N.W. 114
• Parties: STATE OF SOUTH DAKOTA ex rel. MELVIN GRIGSBY, Attorney General, Relator, v. C. BUECHLER, Hutchinson County Treasurer., Defendant.
• Court: South Dakota Supreme Court

10 S.D. 156

72 N.W. 114

STATE OF SOUTH DAKOTA ex rel. MELVIN GRIGSBY, Attorney General, Relator,

v.

C. BUECHLER, Hutchinson County Treasurer., Defendant. South Dakota Supreme Court Original proceedings Writ issued Melvin Grigsby, Attorney General, Pierre, SD Attorneys for relator. Opinion filed July 20, 1897

FULLER, J.

This original application for a peremptory writ of mandamus made by the state on the relation of the attorney general, is to compel the defendant, C. Buechler, treasurer of Hutchinson County, to transmit to the state treasurer $187.50, being three-eighths, or 37½ per cent., of the money paid by certain saloon keepers to said county treasurer for licenses already granted to sell intoxicating liquors at retail, pursuant to chapter 72 of the Laws of 1897, which, among the things, provides for a license of $400 per annum, beginning July 1st, and expiring June 30th, currently, to be paid to the county treasurer annually in advance, on or before the 1st day of July in each year, or a pro rata portion thereof for the remainder of the year in case application therefor is made at any time after the 1st day of July. Before engaging in the business of selling intoxicating liquors at retail, and on or before theist day of July in each year thereafter, the dealer must file with the county treasurer a bond in the sum of $2,000, with two or more sufficient sureties, to be approved by the board of county commissioners. In addition to the license required to be paid to the county treasurer, it is expressly declared to be the intention of the legislature to allow the authorities of any city, incorporated town, or township to levy and collect a license for the sale of intoxicating liquors therein; and it is made the duty of such authorities to prohibit the party paying the license, and filing the bond as above provided, from engaging in the business until he has paid a license, which must be fixed by said authorities respectively, at not less than $200, nor more than $600. But such authorities are in no event allowed to receive a license fee from one who has not filed an approved bond with the county treasurer, and paid to such officer the required license, nor can they permit such a person to engage in the business. Should the proper officers of any city, town, or township deem an applicant for a license unfit to carry on the business, they may, in their discretion, refuse to grant a license; and in that event the money paid to the county treasurer shall be returned to such person upon the warrant of the board of county commissioners. Section 7 of the act provides that

“all moneys received by any county treasurer under section 1 of this act shall be by him placed to the credit of the general fund of the county and upon each license granted in any county of the state, the county treasurer of such county shall transmit the sum of one hundred and fifty dollars ($150) to the state treasurer which shall by said state treasurer be placed to the credit of the general fund of the state. …”

The statute contains numerous other provisions designed to regulate the traffic and carry the law into effect, which will be incidentally noticed later on if found to be essential to a determination of the questions presented. Counsel for the defendant demur to the amended and verified application for a peremptory writ of mandamus on the ground that the same does not state facts sufficient to justify the issuance of the writ, but without devoting space to a vindication of the averments of that pleading, we are disposed to regard the application sufficient with respect to form, and proceed to determine from an examination of the various provisions of the enactment what effect should be given to section 7, above quoted, in case the same is found to be within some recognized legislative power.

No claim is made that the aggregate license which under the law may be imposed is unreasonable, but counsel contend that Sec. 7, in so far as the same requires a remittance to the state treasurer, is plainly a revenue measure, and therefore repugnant to Art. 11 of the constitution, which requires the legislature, by general law, to provide funds for the disbursement of all lawful demands against the state by a uniform tax, levied only upon real and personal property according to the value thereof in money, and that every tax so levied shall specify the object thereof, from which the same must never be diverted. Pursuant to the will of a majority, aroused to consciousness of the fact that the retail liquor traffic is an expensive evil, resulting in irreparable injury to society, entailing upon the public the burden of increased pauperism and additional criminal prosecutions, often to no avail, the legislature deemed the license system to be the most effective scheme by which to restrict, regulate, and control the business, and the law enacted unmistakably partakes of the nature of a police regulation, designed to impose upon the dealer the burden of liquidating, so far as practicable, the damage thus occasioned. The primary object of the law, as specifically declared by the title, is to “provide for the licensing, restriction, and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors” and the fact that the general revenue is incidentally increased is not sufficient to invalidate the act, or subject the same to an constitutional objection. The general proposition is founded on reason, and well supported by authority, that constitutional provisions prohibiting taxation except in pursuance of law, and requiring a uniform levy upon all real and personal property sufficient to defray the ordinary annual expenses of the state, have no application to a police regulation of the liquor traffic imposing a license thereon, calculated to partially prevent and alleviate the direful influences and inherent consequences of the business. Territory v. O’Connor, 5 Dak. 397, 41 N.W. 746; State v. Doherty, (Idaho) 29 Pac. 855; Pleuler v. State, 11 Neb. 547, 10 N.W. 481; Commissioners v. Nelson, 19 Kan. 243; People v. Murry, (Sup.) 38 NY Supp. 909; Territory v. Connel, (Ariz) 16 Pac. 209; United States Distilling Co. v. City of Chicago, 112 Ill. 19; Chilvers v. People, 11 Mich. 43; Mitchell v. Williams, 27 Ind. 62; Slate v. Aiken, 42 SC 222, 20 S.E. 221; People v. Thurbor, 13 Ill. 554.

The occupation being one which the lawmaking power had the right to prohibit entirely or partially suppress by the issuance of a license under specified restrictions to persons only who possess certain moral attributes, the...