State ex rel. Major v. Cummings

• Decision Date: 14 February 1942
• Citation: 158 S.W.2d 713,178 Tenn. 378
• Parties: STATE ex rel. MAJOR v. CUMMINGS, Mayor.
• Court: Tennessee Supreme Court

158 S.W.2d 713

178 Tenn. 378

STATE ex rel. MAJOR v. CUMMINGS, Mayor.

Supreme Court of Tennessee.

February 14, 1942

Appeal from Chancery Court, Davidson County; Thomas A. Shriver Chancellor.

Suit in equity by the State, on the relation of C. W. Major, against Thomas L. Cummings, Mayor of the City of Nashville. Decree for respondent, and relator appeals.

Affirmed.

W. C Cherry, of Nashville, for defendant.

PREWITT Special Justice.

The mayor of the City of Nashville refused to grant a certificate of good moral character to the complainant, not based on his moral turpitude, but because the granting of the certificate would have been to license him to sell liquor in an area prohibited in a segregation ordinance. The complaint charges that the mayor acted arbitrarily in refusing to issue the certificate. Ordinance No. 1220 of the city confined the sale of liquor to an area comprising the uptown business district of the city. Later on, amendments were made to this ordinance enlarging the area.

The instant case is controlled by State ex rel. Saperstein v Bass, Mayor, 177 Tenn. 609, 152 S.W.2d 236, 239. In that case, Mr. Justice DeHaven, speaking for this Court, said:

"In the exercise of the power conferred by the legislature 'to license, tax, and regulate *** retailers of liquor,' the Board of Commissioners enacted ordinance No. 2307 and amendments thereto. By the first amendment, the area of the City of Chattanooga in which a retail liquor store could be licensed was specified, and a penalty was fixed for a violation of the ordinance. The second amendment did nothing more than further restrict the area in which liquor can be sold.

"The power to exercise a sound discretion is implicit in the power to regulate. The Board of Commissioners of the City of Chattanooga elected to exercise the power to regulate retailers of liquor by segregating such business to a described area of the city. Those persons whose property was left outside the area in which liquor stores could be licensed have no basis for constitutional complaint that their property was not included within such area. As said by Justice Field in Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 15, 34 L.Ed. 620: 'There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority.'

"The chief complaint of petitioner seems to be that having erected a store room and having been granted a license for the conducting of a retail liquor business thereon, for the year 1940, the change of the boundaries of the area in which liquor could be sold so as to exclude his property amounted to a discrimination against him and a personal wrong. Why the Board of Commissioners made this change does not appear. The judiciary cannot inquire into motives prompting the enactment of a statute, or ordinance. Madison v. City of Maryville, supra [173 Tenn. 489, 121 S.W.2d 540].

"One who assails a classification made in a police measure must carry the burden of showing that such classification is essentially arbitrary. McConnell v. City of Knoxville, 172 Tenn. 190, 110 S.W.2d 478, 113 A.L.R. 966. The basis on which petitioner asserts the ordinance here involved is discriminating and arbitrary is that the three other corners at the street intersection are

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