State ex rel. Veal v. Mayor and Aldermen of Dyersburg

• Decision Date: 01 June 1946
• Citation: 195 S.W.2d 11,184 Tenn. 1
• Parties: STATE ex rel. VEAL v. MAYOR AND ALDERMEN OF DYERSBURG.
• Court: Tennessee Supreme Court

195 S.W.2d 11

184 Tenn. 1

STATE ex rel. VEAL v. MAYOR AND ALDERMEN OF DYERSBURG.

Supreme Court of Tennessee.

June 1, 1946

Appeal from Probate Court, Dyer County; Robert D. Jones, Judge.

Mandamus proceeding by the State of Tennessee, on the relation of J C. Veal, against the Mayor and Aldermen of Dyersburg, Tenn. From a decree dismissing the petition, relator appeals.

Affirmed.

Milburn N. Cooper, of Dyersburg, for appellant (relator below).

M Watkins Ewell, of Dyersburg, for appellee.

TOMLINSON Special Justice.

In 1941 the Board of Mayor and Aldermen of Dyersburg adopted a resolution limiting to five the number of retail intoxicating liquor stores which might be maintained within its boundaries. In March of 1945, this board passed an ordinance to the same effect. The number of such liquor stores permitted never exceeded five since the enactment of Chapter 49 of the Acts of 1939 permitting the sale of intoxicating liquor under the terms and provisions of said general law. On November 1, 1945 relator, appellant here, applied to this board for the issuance of a certificate of good moral character. There were five such liquor stores being maintained in Dyersburg at the time. The purpose of the certificate was to enable appellant to procure from the state commissioner of finance and taxation a permit and retailer's license to sell intoxicating liquor in Dyersburg. The Mayor and Board of Aldermen refused to grant the certificate. This refusal was not based on the moral turpitude of appellant, but because the granting of the certificate would have made it legally possible to maintain more than five liquor stores in Dyersburg in violation of its ordinance.

Thereupon appellant, as relator, filed his petition seeking a writ of mandamus to require these town officials to issue him this certificate. This appeal is the result of the dismissal of his petition in the court below.

The officials of a municipality have the right to refuse to grant a certificate of good moral character, notwithstanding the absence of moral turpitude, if the issuance of such certificate would make it legally possible to violate a legally authorized ordinance regulating the sale of intoxicating liquor within the boundaries of the municipality. State ex rel. Major v. Cummings, 178 Tenn. 378, 158 S.W.2d 713, 139 A.L.R. 837.

However it is insisted by the appellant that the board was not authorized by its charter to enact the ordinance referred to. The charter of Dyersburg is Chapter 410 of the Private Acts of 1903. That charter empowers the Board to enact ordinances for the following, among other purposes:

'8. To make regulations to secure the general health of the inhabitants and prevent and remove nuisances.'

'14. To license, tax and regulate merchants, peddlers and all privileges taxable by the State.'

'21. To provide for and regulate the inspection, weighing, measuring and vending of all kinds of fuel, provender or feed, provisions, oils, whiskies and other spirits, milk, butter, lard and all kinds of provisions, meats, poultry, fish and vegetables.' Section 16.

It is specifically insisted by appellant that these provisions of the charter do not authorize the board to enact an ordinance limiting the number of retail liquor stores which may be maintained in Dyersburg. Our case of State ex rel. v. Bass, 177 Tenn. 609, 616, 152 S.W.2d 236, 238, makes this statement: 'The general rule is well settled that the number of saloons in a municipality, or in a particular portion thereof, may be validly limited by statute, or ordinance, when the power to enact such ordinance is conferred. Annotation, Ann.Cas.1913E, 365.'

Possibly this statement of the Court was not necessary to the decision of the question being considered in that case, since the exact question before the Court was with reference to the legality of a zoning ordinance. However that may be, the statement is in accord with the general rule as expressed in the North Dakota case (Thielen v. Kostelecky, 69 N.D. 410, 287 N.W. 513, 124 A.L.R. 820) quoted from in our State ex rel. v. Bass, supra, 177 Tenn. at page 615, 152 S.W.2d at page 238, as follows: 'The power 'to regulate the retail sale of alcohol and alcoholic beverages,' which the legislative act conferred upon the governing body of a city, vests such governing body with power to fix, by ordinance, a reasonable limit on the number of retail liquor licenses to be issued, and thus limit the number of retail stores that may be operated in the city at any one time.'

This Court has repeatedly recognized the authority of municipalities in the exercise of their general police powers to adopt stringent regulations governing the retail sale of intoxicating beverages within its borders. It was stated in State ex rel. v. Bass, supra, 177 Tenn. at page 617, 152 S.W.2d at page 239, that the business of selling intoxicating liquors by retail '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.' In the case of Howard v. Christmas, 180 Tenn. 519, 524, 176 S.W.2d 821, 823, this Court said that 'running through these cases is emphatic recognition of the broadest powers of regulation of the sale of intoxicating beverages, including beer, in Municipalities.' In the case of McCanless v. State ex rel. Hamm, 181 Tenn. 308, 314, 181 S.W.2d 154, 156, 153 A.L.R. 832, this Court said: 'It is everywhere now accepted that the business of dealing in intoxicating liquors is subject to the most stringent regulation as to places where it is conducted, persons who shall conduct it, and as to whether it shall be conducted at all.'

It is the opinion of this Court that the above quoted provisions of the charter of Dyersburg clearly authorized the passage of the ordinance limiting the number of retail intoxicating liquor stores in that town.

We find no merit in the insistence that such ordinance violates the constitution either of the State or of the Federal Government. A complete and very apt answer to that insistence is contained in the Illinois case of People ex rel Fitzgerald v. Harrison, 1912, 256 Ill. 102, 99 N.E. 903, 905, Ann.Cas.1913E, 362, wherein the court said: 'The city council having determined that the interests of the municipality will be subserved by limiting the number of saloons within its boundaries, its discretion cannot be controlled by the court, even if the latter should not agree with the conclusion. No one's constitutional right is impaired, and if the limitation prevents some persons from keeping dramshops who might do so under an unlimited ordinance, that result is merely an incidental effect, which does not affect the validity of the limitation imposed with a...