State v. Calloway

Decision Date31 January 1906
Citation84 P. 27,11 Idaho 719
PartiesSTATE v. CALLOWAY
CourtIdaho Supreme Court

CITY ORDINANCE-SALE OF INTOXICATING LIQUORS-SALOONS-REGULATION OF-MIDNIGHT AND SUNDAY CLOSING-ENTERING SALOON DURING PROHIBITED HOURS-REASONABLE REGULATION-RIGHT OF PROPERTY-PRIVILEGE AND IMMUNITY OF CITIZEN-CLASSIFICATION-DUE PROCESS OF LAW-CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT TO UNITED STATES CONSTITUTION-TITLE TO ORDINANCE.

1. Under the provisions of subdivision 4 of section 37 of the charter of Boise City, the city council has power and authority to enact ordinances and make reasonable regulations therein for the sale of intoxicating liquors both at retail and wholesale.

2. Ordinance No. 642 of said city is not repugnant to the general laws of the state.

3. The following provisions of ordinance No. 642 of the said city to wit: "And it is hereby made unlawful for the proprietor of such a place or wherein is contemplated the sale of intoxicating liquors to permit any person or persons other than himself and family to enter such room and place where intoxicating liquors are sold during the hours when the sale of such liquors is prohibited," is a reasonable regulation, and the common council had the power and authority to enact it.

4. The provisions of said ordinance making it a misdemeanor for the proprietor of a place where intoxicating liquors are sold to permit any person or persons other than himself and family to enter such place during the hours when such place must be kept closed, is a reasonable regulation and not contrary to the provisions of the constitution or general laws of the state.

5. The power to prohibit the sale of intoxicating liquors in the interest of the public safety, welfare, good order and happiness of the people during certain prescribed periods by the proper legistive body is no longer an open question.

6. Under the provisions of said ordinance it is immaterial for what purpose the proprietor admits the prohibited person into such building. The offense is committed if he permits any person except members of his own family to enter his place of business during prohibited hours.

7. Said ordinance is equally applicable to all dealers in intoxicating liquors, whether at wholesale or retail, and is not class legislation within the well-defined meaning of that term. The classification there made is natural, practical and reasonable. That being true, it is valid and constitutional. In enacting police regulation, if the classification therein made is usual, practical and reasonable, that is sufficient.

8. Said ordinance does not infringe any right, privilege or immunity secured to the citizen by the federal or state constitution.

9. The control of the liquor business is within the police power of the state, and restrictions which might lawfully be imposed upon it might be obnoxious as an illegal restraint of trade when applied to other pursuits or avocations.

10. The right to sell liquor is not an inherent right of the citizen and to prohibit him from keeping open his place of business from 12 o'clock midnight to 6 o'clock in the morning and from 12 o'clock Saturday nights until 6 o'clock the following Monday morning does not deprive him of property without due process of law. Said ordinance is a restraint upon the business therein named and in no wise contemplates a destruction of the business, but places it within the bounds therein named and is simply a regulation and a restraint.

11. The title to said ordinance, to wit: "An ordinance regulating the hours in which intoxicating liquors shall be sold in Boise City, and for Sunday closing, and providing a penalty for the sale thereof during prohibited hours," expresses the object and purpose of said ordinance, and is sufficiently comprehensive to include all of the provisions of said ordinance.

(Syllabus by the court.)

APPEAL from District Court of Ada County. Case tried by Honorable Frank J. Smith, Judge of the Seventh District.

The defendant was convicted of violating what is known as the closing ordinance of Boise City. Judgment affirmed.

Judgment of the lower court affirmed, with costs in favor of respondent.

Hawley, Puckett & Hawley, for Appellant.

The general requisites of a valid municipal ordinance, one legally binding upon all whom it is designed to operate, are briefly summarized in section 14 of McQuillan on Municipal Ordinances. A municipal corporation has only such powers as have been expressly delegated to it, and their appropriate incidents. (Wilson v. Beyers, 5 Wash. 303, 34 Am. St. Rep. 858, and note, 33 P. 90; South Covington Ry. Co. v. Berry, 93 Ky. 43, 40 Am. St. Rep. 161, and note, 18 S.W. 1026; Phillips v. City of Denver, 19 Colo. 179, 41 Am. St. Rep. 230, 34 P. 902.) In order to be valid under such circumstances the ordinance must be reasonable in its terms. (21 Am. & Eng. Ency. of Law, 985-990; 1 Dillon on Municipal Corporations, 322-325; Bennett v. Pulaski (Tenn.), 52 S.W. 913, 47 L. R. A. 278; Mayor of New York v. Dry Dock etc. R. R. Co., 133 N.Y. 104, 28 Am. St. Rep. 614, 30 N.E. 563; People v. Armstrong, 73 Mich. 288, 16 Am. St. Rep. 584, 41 N.W. 275, 2 L. R. A. 721, and note.) This particular act, however, in our judgment, not only is not constitutional by reason of its being contrary to the fundamental law of our own state, but is further unconstitutional in that it contravenes section 1 of article 14 of the amendments to the constitution of the United States. (State v. Nelson, 10 Idaho 522, 109 Am. St. Rep. 226, 79 P. 79, 67 L. R. A. 808; Gastenan v. Commonwealth, 108 Ky. 473, 94 Am. St. Rep. 386, 56 S.W. 705.) The only grounds upon which it can be urged that this ordinance is unconstitutional is that it is not a proper exercise of the police power. Municipal ordinances, to be valid as an exercise of police power, are presumed to be reasonable and necessary, but if unreasonable or oppressive, the court may hold such ordinances void. (Mayor of New York v. Dry Dock etc. R. R. Co., 133 N.Y. 104, 28 Am. St. Rep. 609, 30 N.E. 563; Robinson v. Mayor etc., 1 Humph. (Tenn.) 156, 34 Am. Dec. 625, and notes; Ritch v. People, 155 Ill. 98, 46 Am. St. Rep. 315, 40 N.E. 454, 29 L. R. A. 79; Lake View v. Rose Hill Cem. Co., 70 Ill. 191, 22 Am. Rep. 71; People v. Gillson, 109 N.Y. 389, 4 Am. St. Rep. 465, 17 N.E. 343.) It is a judicial question whether a trade or calling is of such a nature as to justify police regulations. (Eden v. People, 161 Ill. 296, 52 Am. St. Rep. 365, 43 N.E. 1108, 32 L. R. A. 659; Ragio v. State, 86 Tenn. 272, 6 S.W. 401, In re Morgan, 26 Colo. 415, 58 P. 1071; In re Eight Hour Bill, 21 Colo. 29, 39 P. 328; Low v. Rees Printing Co., 41 Neb. 127, 43 Am. St. Rep. 670, 59 N.W. 362, 24 L. R. A. 702; Ritchie v. People, 155 Ill. 98, 46 Am. St. Rep. 315, 40 N.E. 454, 29 L. R. A. 79; Steffy v. Monroe, 135 Ind. 466, 41 Am. St. Rep. 436, 35 N.E. 121.) A grant of power to a municipality to regulate lawful occupation and business places is not an express grant of power to locate or prescribe the limits of carrying on lawful occupations on private premises; nor does a general welfare clause in a grant of power confer full and specific power upon the city council for such purpose. (Phillips v. City of Denver, 19 Colo. 179, 41 Am. St. Rep. 230, 34 P. 902.) The ordinance is void by reason of defects of form. (McQuillan on Municipal Ordinances, sec. 138.)

J. J. Guheen, Attorney General, Charles F. Koelsch, R. P. Quarles, and Charles M. Kahn, for Respondent.

Subdivision 4 of section 37 of the charter of Boise City by express grant of the legislature of the state of Idaho gives to Boise City the right "to license, tax, regulate and restrain bar-keepers, saloon-keepers, dealers in (and manufacturers of) spirituous (vinous) or malt liquors are kept for sale or in any manner disposed of." Under this power the common council of Boise City had the right to pass the ordinance in question. (McQuillan on Municipal Ordinances, p. 761, sec 480; also Smith v. Knoxville, 3 Head (Tenn.), 245; Gabel v. Houston, 29 Tex. 335; Maxwell v. Jonesboro, 11 Heisk. (Tenn.) 257; Tarkio v. Cook, 120 Mo. 1, 42 Am. St. Rep. 516, 25 S.W. 202; Provo City v. Shurtliff, 4 Utah 15, 5 P. 302; Ex parte Wolf, 14 Neb. 24, 14 N.W. 660; Staates v. Washington, 44 N.J.L. 605, 43 Am. Rep. 402; Decker v. Sargeant, 125 Ind. 404, 25 N.E. 458; Town of Minden v. Silverstein, 36 La. Ann. 912; City of Portland v. Schmidt, 13 Or. 17, 6 P. 221.) The said ordinance is not repugnant to the general laws of the state. (Ex parte Cowert, 92 Ala. 94, 9 So. 225; City of Pekin v. Smelzel, 21 Ill. 464, 74 Am. Dec. 105; Smith v. Knoxville, 3 Head (Tenn.), 245.) Under the law as stated in the brief of counsel for appellant, and under the authorities submitted by respondent, we contend that Boise City had the express power to pass said ordinance, and if this court finds that said ordinance does not violate the federal or state constitution, said ordinance cannot be attacked upon the ground of its being unreasonable. (Skaggs v. Martinsville, 140 Ind. 476, 49 Am. St. Rep. 209, 39 N.E. 241, 33 L. R. A. 781; Commonwealth v. Worchester, 3 Pick. 462; McQuillan on Municipal Ordinances, sec. 181; City of Cairo v. Feuchter, 159 Ill. 155, 42 N.E. 308.) The distinction that counsel attempts to draw between wholesale liquor houses and retail liquor houses or saloons cannot avail for the reason that no such distinction is recognized under the law, and the liquor traffic as a whole is subject to different laws and regulations than any other line of business. (Mugler v. State, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620.) There can be no question that the closing of saloons on Sundays is a reasonable exercise of the police power of cities. (Kurtz...

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