State ex rel. Thornbury v. Gregory

• Decision Date: 27 July 1937
• Docket Number: 26705.
• Citation: 70 P.2d 788,191 Wash. 70
• Parties: STATE ex rel. THORNBURY v. GREGORY et al.
• Court: Washington Supreme Court

70 P.2d 788

191 Wash. 70

STATE ex rel. THORNBURY v. GREGORY et al.

No. 26705.

Supreme Court of Washington, En Banc.

July 27, 1937

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Injunction proceedings by the State of Washington, on the relation of R E. Thornbury, against L. E. Gregory and others, constituting the Washington State Liquor Control Board. From a judgment dismissing petition, relator appeals.

Affirmed.

Harold P. Troy and Julia Waldrep Ker, both of Olympia, for appellant.

G. W Hamilton and R. G. Sharpe, both of Olympia, for respondents.

BEALS Justice.

Plaintiff R. E. Thornbury, operates a restaurant in the city of Olympia, and has been licensed by the Washington State Liquor Board (hereinafter referred to as the Board) to sell wines and beer. Under authority of Rem.Rev.Stat. § 7306-79 (Washington State Liquor Act, Laws Ex.Sess.1933, c. 62, pp 173, 211, § 79), the Board promulgated certain regulations, by one of which the sale of beer and wine by a licensee was prohibited from midnight Saturday of each week to 6 o'clock on the following Monday morning.

Mr. Thornbury filed in the superior court for Thurston county his petition alleging that he was conducting a restaurant in the city of Olympia, and in connection therewith selling beer and wine, under license from the Board. He further alleged that during the hours referred to in the regulation, he ordinarily sold a considerable quantity of beer and wine to patrons of his restaurant; that the Board's regulation above referred to was in excess of the powers and rights vested in the Board by law; and that the enforcement of this regulation would leave plaintiff without adequate or immediate remedy. Plaintiff therefore prayed for an order enjoining the Board from enforcing its regulation. He also asked for general relief.

The Board demurred to Mr. Thornbury's petition on the following grounds:

'(1) That the court has no jurisdiction of the subject matter of the action; '(2) That the relator has no legal capacity to sue;

'(3) That said petition does not state facts sufficient to constitute a cause of action or entitle relator to the relief prayed for or to any relief.'

After argument, the trial court sustained the demurrer, whereupon plaintiff elected to stand upon his petition and refused to plead further. The court then entered judgment dismissing the action with prejudice, from which judgment plaintiff has appealed.

The sole question presented is the sufficiency of appellant's petition to entitle him to relief. Appellant argues, first, that the ownership of his business and the enjoyment of his license to sell beer and wine vest in him a sufficient property right to entitle him to maintain this action and obtain relief against what he argues is an abuse of the regulatory power vested in the Board by statute; that the enforcement of the regulation will cause him to suffer irreparable damage, and that he has no speedy or adequate remedy at law; and, finally, that the regulatory power vested in the Board by statute does not vest the Board with authority to absolutely prohibit, during any specified day or days, the sale of beer and wine by one enjoying such a license as that issued to appellant.

For the purposes of this case, we will assume without deciding that appellant is entitled to maintain such an action as this, for the reason that no speedy or adequate remedy at law is available to him, and that, if the regulation be in fact illegal, he would suffer irreparable damage.

Appellant admits that, generally speaking, there is no property right in such a license as he enjoys, but argues that, while this rule may operate to prevent his maintaining an action to enjoin revocation of his license, he does enjoy under his license a privilege which authorizes him to maintain a property action against any person other than the State of Washington, if it be attempted to unlawfully restrict his license.

In the recent case of State v. Thornbury, 69 P.2d 815, this court held that Rem.Rev.Stat. § 2494, forbidding sales of certain personal property on the first day of the week, was not repealed by implication by chapter 62, Laws Ex.Sess.1933, above referred to. The question presented in the case at bar has not been rendered moot by the recent decision above referred to, as the regulation of the Board here under attack prohibits the sale of beer and wine from midnight each Saturday until 6 o'clock the following Monday morning, covering, therefore, a period of six hours after the close of the first day of the week. If, then, the holders of licenses issued by the Board cannot sell beer and wine between midnight Sunday and 6 o'clock the following morning, the prohibition against such sales is found in the regulation promulgated by the Board, and not in the statute.

The following sections of the act are pertinent to this inquiry:

Rem.Rev.Stat. § 7306-2 (Laws Ex.Sess.1933, c. 62, p. 173, § 2): 'This entire act shall be deemed an exercise of the police power of the state, for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose.'

Rem.Rev.Stat. § 7306-27, subd. (5) (Laws Ex.Sess. 1933, c. 62, p. 189, § 27, subd. 5): 'Every license issued under this section shall be subject to all conditions and restrictions imposed by this act or by the regulations in force from time to time.'

Rem.Rev.Stat., § 7306-79 (Laws Ex.Sess.1933, c. 62, p. 211, § 79): '1. For the purpose of carrying into effect the provisions of this act according to their true intent or of supplying any deficiency therein, the board may make such regulations not inconsistent with the spirit of this act as are deemed necessary or advisable. All regulations so made shall be a public record and filed in the office of the secretary of state, together with a copy of this act, shall forthwith be published in pamphlets, which pamphlets shall be distributed free at all liquor stores and as otherwise directed by the board, and thereupon shall have the same force and effect as if incorporated in this act.

'2. Without thereby limiting the generality of the provisions contained in subsection (1), it is declared that the power of the board to make regulations in the manner set out in that subsection shall extend to * * *

' l. regulating the sale of liquor keep by the holders of licenses which entitle the holder to purchase and keep liquor for sale; * * *

'r. prescribing the conditions, accommodations and qualifications requisite for the obtaining of licenses to sell beer and wines, and regulating the sale of beer and wines thereunder.'

The regulation and control of the liquor traffic is manifestly a problem of the greatest difficulty and importance, involving an immense amount of detail, and including many matters which, if successful operation and control is to be established and maintained, must be left to some regulatory body other than the State Legislature.

In the case of Tacoma v. Keisel, 68 Wash. 685, 124 P. 137, 140, 40 L.R.A. (N.S.) 757, this court, in upholding an anti-treating ordinance enacted by the city of Tacoma, said:

'The modern conception of the legal status of the liquor traffic in the United States is clearly expressed by Justice Field speaking for the supreme court of the United States in Crowley v. Christensen, 137 U.S. 86, 91, 11 S.Ct. 13, 15, as follows:

"By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dramshop, where intoxicating liquors in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every state show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in this way has therefore been, at all times, by the courts of every state, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon Before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of the state is fully competent to regulate the business--to mitigate its evils or to suppress it entirely. 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 attendant 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 right of the state to control the traffic in intoxicating liquors has been recognized by this court in the following decisions: Gottstein v. Lister, 88 Wash. 462, 153 P 595, Ann.Cas.1917D, 1008; State v. Hemrich, 93 Wash. 439, 161 P. 79, L.R.A.1917B, 962;...