State ex rel. Saperstein v. Bass

• Decision Date: 14 June 1941
• Citation: 152 S.W.2d 236,177 Tenn. 609
• Parties: STATE ex rel. SAPERSTEIN v. BASS, Mayor.
• Court: Tennessee Supreme Court

152 S.W.2d 236

177 Tenn. 609

STATE ex rel. SAPERSTEIN v. BASS, Mayor.

Supreme Court of Tennessee.

June 14, 1941

Error to Circuit Court, Hamilton County; L. D. Miller, Judge.

Proceeding by the State of Tennessee, on relation of Sanford Saperstein against E. D. Bass, Mayor of the City of Chattanooga, wherein relator filed a petition to have an ordinance and amendments thereto declared void and seeking a writ of mandamus. From a judgment dismissing the petition on demurrer, relator appeals.

Affirmed.

T. Pope Shepherd, Jere Tipton, and M. B. Finkelstein, all of Chattanooga, for plaintiff in error.

J. W Anderson, of Chattanooga, for defendant in error.

DeHAVEN Justice.

Relator Sanford Saperstein, filed his petition in the circuit court of Hamilton County, seeking to have ordinance No. 2307, and amendments thereto, declared void, and seeking a writ of mandamus to require E. D. Bass, Mayor of Chattanooga, to issue to him a certificate of good moral character in connection with his application for license to operate a retail liquor store at No. 120 East Fourth Street, Chattanooga, Tennessee.

The circuit judge dismissed the petition on demurrer, and relator has appealed to this court and assigned errors.

It appears from the petition that on May 16, 1939, the City of Chattanooga passed ordinance No. 2307 regulating and controlling the manufacture and sale of intoxicating liquor, and providing, among other things, a retail liquor dealer's privilege license to sell to consumers in sealed packages only. That immediately after the passage of said ordinance, it was amended so as to designate those areas in the city of Chattanooga in which the sale of liquor was permitted.

The ordinance following the general statute (Chapter 49, Public Acts 1939) requires an applicant for retail liquor license to first secure a certificate of good character from the mayor of the city, and a permit from the Department of Finance and Taxation of the State, before the city auditor is allowed to issue permit for the operation of a retail liquor store in the city.

Relator alleges in his petition that he purchased the lot at 120 E. 4th Street, Chattanooga, for the express purpose of erecting a store for the sale of intoxicating liquor, and that the City, on September 1, 1940, granted him a permit for the construction of a store room at this location, and that he obtained a certificate of good character from the Mayor on or about September 19, 1940, after which he obtained a permit from the Commissioner of Finance and Taxation and a license from the city to operate a retail liquor store at No. 120 E. 4th Street, which location was at that time in the area in which such business could be operated under the ordinance. It was further alleged that on the same day the relator obtained a license to operate a liquor store at the above location, the city passed another amendment to ordinance No. 2307 which provided "that no liquor store shall be established or operated on Fourth Street except between Chestnut and Cherry streets;" that the effect of the amendment was to take relator's location out of the permissible retail zone by removing the boundary line one block west on Fourth Street; that notwithstanding the passage of that amendment, relator operated his retail store at this location for the rest of the year 1940, but when he applied to defendant for a renewal of his certificate of good character it was denied him on the ground that the ordinance, as amended, made illegal the operation of a retail liquor store at this location.

Relator further alleged that 120 E. Fourth Street is the southwest corner of Fourth Street and Walnut Street, and is in a commercial zone of the city as established by the city zoning ordinance passed a number of years ago; that all the other three corners of this intersection are occupied by commercial establishments, as are several of the lots adjacent to the corner lots of this intersection.

Relator then sets out in his petition eleven reasons why the ordinance in question is invalid. These reasons may be summarized as follows: (1) Because it attempts to limit the use of his property for a retail liquor store; (2) because it purports in effect to legislate him out of business; (3) because the location was zoned for commercial purposes under the zoning ordinance of the city, and that there are commercial establishments on each of the other three corners of the street intersections; (4) because the state has not delegated to the city the right to regulate and control the sale of alcoholic beverages, or to fix zones in which such a business may be conducted; (5) because the last mentioned amendment was an unreasonable and arbitrary exercise of police power, and in excess of the legislative power of the city; (6) that the amendment is violative of section 8, article 1, and section 8 of article XI, of the constitution of the State of Tennessee, and the second clause of the fourteenth amendment to the constitution of the United States.

Defendant demurred to the petition on the grounds: (1) That defendant's refusal to issue a certificate for relator to obtain a liquor license to operate a retail liquor store at No. 120 E. Fourth Street is not an arbitrary refusal, because defendant is prohibited from issuing such certificate by the provisions of the ordinance set out in the petition; (2) that the ordinance in question was passed by the Board of Commissioners of the City of Chattanooga pursuant to charter authority and in the exercise of its police powers, and is a reasonable ordinance and does not deprive defendant of any property and is not violative of either the State or Federal constitution.

The trial judge was of the opinion that the enactment of the ordinance and the amendments thereto complained of in the petition was a valid exercise of police power...