State ex rel. Jones v. Board of County Commissioners of Natrona County
| Decision Date | 09 December 1909 |
| Docket Number | 612 |
| Citation | 105 P. 295,18 Wyo. 153 |
| Parties | STATE EX REL. JONES v. BOARD OF COUNTY COMMISSIONERS OF NATRONA COUNTY |
| Court | Wyoming Supreme Court |
ON RESERVED QUESTIONS from the District Court, Natrona County HON. CHARLES E. CARPENTER, Judge.
The facts are stated in the opinion.
Norton & Hagens, for relator.
The provisions of the Constitution are mandatory. (21 Am. St 272; State ex rel. Hynds v. Cahill, (Wyo.) 75 P 433.) A license authorizing the carrying on of a particular business is not a contract which vests a right, but merely the grant of a privilege, and such license is not protected by the Constitutional prohibition of the impairment of the obligation of a contract. It may at any time be revoked by a general law operating equally upon all persons in the same class. The constitutional restrictions upon legislative enactments apply equally to subordinate corporations, municipalities and boards created by the legislature. (33 Am. St. 842; 57 Am. Rep. 128.) A law which is general in form but special in effect is a special law and therefore contrary to the constitutional provision which requires all laws of a general nature to be uniform. A law general upon its face but which has effect only upon particular individuals is nevertheless class legislation and unconstitutional. So, a law which does not designate the particular persons or individuals which it affects, but leaves its execution to an individual or body of individuals, to be exercised by them arbitrarily and without express limitation, which must necessarily affect all persons in the same class alike, is, nevertheless, class legislation and void. (32 Am. St. 36; 28 N.E. 812; 58 N.E. 1031; 75 Am. St. 93; 32 Am. St. 36; 37 N.W. 21; 118 U.S. 356; 33 Am. Rep. 233.) Statutes and ordinances which permit subordinate officers to grant or deny to individuals in the same class the privilege of engaging in certain kinds of business is uniformly held unconstitutional and void as class legislation. (88 Pa. St. 258; 84 Ill. 590; 31 Ohio St. 592; 106 Pa. St. 377; 44 O. St. 248; 47 O. St. 90.)
The relator has been engaged in the retail liquor business in a certain place outside of an incorporated city or town for many years, holding licenses authorizing him to conduct such business; he has acquired considerable property adapted to the use of that particular business; and his license would expire shortly after the statute in question was enacted. There are other individuals no better qualified than the relator to engage in the same business whose licenses might not expire until the end of the year, or several months after the expiration of the relator's license. The legislature had undoubted authority to revoke all licenses by a general law operating uniformly upon all persons in the same class. The statute in question does not apply equally to all persons in the same situation. (Crowley v. West, 78 Am. St. 355; State v. Kuntz, 16 So. 651; Mandeville v. Band, 35 So. 915; State v. New Orleans, 36 So. 999; Zanone v. Mound City, 103 Ill. 552; City v. Wehrung, 46 Ill. 392; City v. Popel, (Ill.) 36 N.E. 348; Mitchell v. State, (Ala.) 32 So. 687; Elba v. Rhodes, (Ala.) 38 So. 807.) The statute discriminates between persons proposing to sell liquors within incorporated cities and towns and those proposing to sell liquors outside of cities and towns. (Chicago v. Netcher, 75 Am. St. 93; Rawlins v. State, 28 L. Bull. 66; Smith v. State, (Ga.) 15 S.E. 682; Crabb v. State, (Ga.) 15 S.E. 455; State v. Hinman, 65 N.H. 103; State v. Pennoyer, 65 N.H. 113; Busch v. Webb, 122 F. 655; Noel v. People, (Ill.) 58 N.E. 616; State v. Gordon, 58 O. St. 599; 9 So. 480; 6. O. St. 269; 83 Ill. 585; 183 U.S. 79; 118 U.S. 356; 31 P. 245; 82 F. 632; 26 F. 471, 611; 13 F. 229; 10 P. 327; 33 Am. Rep. 243.)
Legislation which singles out certain corporations, such as railways, &c., which applies to them only, but might as well include other corporations, are unconstitutional and void. (19 S.W. 910; 23 F. 791; 7 N.E. 631; 10 S.E. 287; 109 U.S. 24; 13 F. 722; 110 U.S. 525; 22 S.W. 350; 31 N.E. 395; 25 Am. St. 891; 6 Am. Dec. 174; 15 Nev. 234; 118 Pa. St. 201; 110 F. 916.) An ordinance requiring a license from produce dealers but not requiring other merchants to take out a license is unconstitutional. (Kans. City v. Grush, 52 S.W. 286.) Also, one which prohibits all persons not residents of the city to engage in peddling or selling goods from house to house without a license is void. (Sayre &c. v. Phillips, 33 Am. St. 842; Graffty v. Rushville, 57 Am. Rep. 128; 100 P. 296.) In the cases cited, statutes which plainly discriminate between individuals in the same class; those where the discrimination was not apparent except in their indirect effects; those which delegated to subordinate corporations and boards the power to arbitrarily discriminate; in whatever form the question was submitted, such statutes have been held void, no matter what the business might be, so long as the law granted privileges to certain persons which were denied to others in the same class.
By the statute in question the relator is deprived of his property without due process of law. (State v. Wallruff, 26 F. 178; Beebe v. State, 63 Am. Dec. 391; Bartelmeyer v. Ohio, 18 Wall. 129; Winehamer v. People, 13 N.Y. 378; Com. v. Murphy, 10 Gray 1; People v. Toinbee, 2 Park. Cr. 329.) A law which discriminates between individuals in the same class, and thereby grants to certain individuals the exclusive privilege of engaging in a certain business, trade or profession, either throughout the state or in certain designated localities, creates a virtual monopoly and is inimical to that provision of the constitution which prohibits the granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise. (Sayre v. Phillips, supra; Graffty v. Rushville, supra; Mandeville v Band, supra; Crowley v. West, supra; Elba v. Rhodes, supra; Mitchell v. State, supra.) If the business is pernicious, and needs regulation for reasons of public policy, such regulation should operate uniformly upon all persons and not give to one individual an exclusive privilege, and deny it to others in like circumstances. (33 Am. St. 842, (Pa.); 57 Am. Rep. 128, (Ind.); 35 So. 915; 27 So. 53, (La.); 32 So. 687, (Ala.); 38 So. 807, 810, (Ala.).) The business of selling liquor was not unlawful at common law. (23 Cyc. 172; Welch v. State, (Ind.) 25 N.E. 883; State v. Hafsoos, (S. Dak) 47 N.W. 400; Sopher v. State, (Ind.) 81 N.E. 913; State v. Gilliland, (W. Va.) 41 S.E. 131; Meehan v. Comm'rs, (N. J.) 64 A. 689.) Under the police power the Legislature has authority to make reasonable regulations with reference to the liquor business. The common law, so far as applicable, is part of the law of the land, and where our constitution or the Legislature, by constitutional enactment, has not expressly prohibited the sale of liquor, it is as lawful as though it had been affirmatively recognized by the constitution. Further, the business is recognized by our Legislature as lawful, since a general prohibitory law has not been enacted, but the business is permitted under license upon certain conditions. There is no merit, therefore, in the contention that cases applied to other business than the sale of liquor are not applicable in this case. When the state authorizes the conduct of the retail liquor business, and grants a license to engage therein, the Legislature is prohibited by the constitution from granting the privilege of a license to one individual without granting the same privilege to all others equally qualified. The doctrine that no one has an inherent right to sell intoxicating liquors merely means that such a right is subject to the police power of the state. (Curr. L. Sec. 418; Sopher v. State, 81 N.E. 913.)
W. E. Mullen, Attorney General, and John B. Barnes, Jr., County Attorney, for respondent.
All statutes regulating or prohibiting the manufacture and sale of intoxicating liquors are enacted under what is known as the police power of the state. There is a certain broad and general sense in which the scope of the police power may be made to include all legislation and to embrace almost every function of governmental activity. There is also a more particular and restricted sense, in which the term is almost always used when it enters into the discussion of constitutional questions, and especially in connection with the regulation or prohibition of the manufacture and sale of intoxicating liquors. In this manner, this scope is limited to the protection and preservation of the public safety, the public health, and the public morals. (Beer Co. v. Mass., 97 U.S. 25.) We do not deny, but concede, that constitutional provisions are mandatory, and that a license is not a contract, and therefore is not affected by the constitutional prohibition as to the impairment of the obligation of contract.
It is universally recognized, that the states, in the exercise of their police powers, have authority to regulate, or entirely prohibit, the manufacture and sale of intoxicating liquors. (In re. Raher, 140 U.S. 545; Munn v. Illinois, 94 U.S. 113; Beer Co. v. Mass., 97 U.S. 25; Foster v. Kansas, 112 U.S. 205; Crowley v Christensen, 137 U.S. 86; Mugler v. Kansas, 123 U.S. 623; Bartelmeyer v. Iowa, 18 Wall. 129; Sheppard v. Dowling, 127 Ala. 1; Foster v. Police Comm'rs, 102 Cal. 483; People v. Griesback, 211 Ill. 39; Drake...
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