State v. Nelson

• Decision Date: 14 January 1905
• Citation: 10 Idaho 522,79 P. 79
• Parties: STATE v. NELSON
• Court: Idaho Supreme Court

79 P. 79

10 Idaho 522

STATE v. NELSON

Supreme Court of Idaho

January 14, 1905

ORDINANCES OF CITIES UNCONSTITUTIONAL WHEN-MAY PROHIBIT WOMEN FROM ENTERING SALOONS FOR IMMORAL PURPOSES-REASONABLENESS OF FINE FOR VIOLATION.

1. An ordinance that provides: "It shall be unlawful for any person maintaining any saloon, barroom or drinking-shop, or any apartment thereto attached, to permit females to enter their said places of business," is unconstitutional.

2. A city may by ordinance prohibit females from entering places where intoxicating liquors are sold for immoral purposes.

3. An ordinance that provides a punishment by fine of not less than $25 nor more than $200, or by imprisonment in the city jail for not less than ten days nor more than sixty days for violation of an ordinance that prohibits females from entering their places of business for immoral purposes, is not void or unconstitutional, for the reason that it is unreasonable or oppressive.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Appellant tried in district court, found guilty and fined, from which judgment he appealed. Reversed.

Reversed and remanded.

C. C Cavanah, for Appellant.

The opinion contains all the leading authorities upon the points decided by the courte cited by appellant's attorney.

C. F Neal and B. F. Kinyon, for Respondent.

The occupation of appellant (that of retailing intoxicating liquors) is one in which he had no inherent and infeasible right to engage. (Black on Intoxicating Liquors, secs. 37, 39; Giozza v. Tiernan, 148 U.S. 657, 13 S.Ct. 721, 37 L.Ed. 599; Bartemyer v. Iowa 18 Wall. 129, 21 L.Ed. 929; License Cases, 5 How. 504, 12 L.Ed. 256; Mugler v. Kansas, 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.) Section 2 of article 12 of the constitution of the state of Idaho provides: "Any county or incorporated city or town may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with its charter or with the general laws." The ordinances in controversy are valid exercise of the authority conferred by the charter of Boise city and are reasonable police regulations. (Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.--

This action was commenced before the police magistrate of Boise and charged defendant with permitting a female, one Rena Morrow, to enter and remain in a saloon maintained by defendant, in violation of an ordinance of the said city. A trial was had and defendant was convicted in that court, and an appeal taken to the district court. A trial was had in that court at the February, 1904, term, and defendant was convicted and sentenced to pay a fine of $ 25 and costs. The appeal is from this judgment.

This prosecution is based on the following section of the ordinance of the city of Boise: "Section 858. It shall be unlawful for any person maintaining any saloon, barroom or drinking-shop, or any apartment thereto attached, to permit females to enter their said place of business or maintain any sign, or offer any inducement or any invitation to females to enter any such saloon, barroom or drinking-shop kept within the city of Boise. Approved Sept. 24, 1903."

This section was introduced in evidence and was the state's exhibit "A." State's exhibit "B" follows: "Any person violating any of the provisions of sections 855, 856, 857 or 858, shall, upon conviction before the police magistrate be punished by a fine not less than $ 25, nor more than $ 200, or by imprisonment in the city jail for not less than ten days nor more than sixty days." Section 872 provides: "In all cases where a fine shall be imposed upon a person for a violation of any of the ordinances of said Boise city, such fine may be collected under the ordinances of said city and laws of Idaho or by imprisonment at hard labor in the city prison, or by working any person sentenced to such imprisonment upon the streets, parks, public squares, workhouse or house of correction, during the term thereof, until such fine and costs be paid, at the rate of one day for every two dollars of said fine and costs, provided the total time of imprisonment shall not exceed sixty days."

It is first urged by counsel for appellant that "this objection to the introduction in evidence of sections 858, 859 [plaintiff's exhibits 'A' and 'B'], should have been sustained, for the reason that such sections of the revised ordinances of Boise city are invalid, void, unreasonable and an interference with individual liberty granted to the citizens of Idaho by the constitutional laws of Idaho and in its operation imposes an unjust and illegal punishment upon the owners of places where liquors are sold, whenever a female enters said places, although she may enter there upon lawful business, and creates an unequal, unjust and illegal discrimination against women who enter such places upon lawful business."

This seems from the record to be the sole question presented for our consideration in this appeal. If the section of the ordinance, state's exhibit "A," is valid, we do not think the penalty provided by state's exhibit "B" too severe. The evident intent of both sections above referred to is in the interest of morals and for the general good of the people of the city. All good citizens should join in an effort to protect the people from immoral influences, and especially the young people of the community. With this object in view, we will examine the provisions of the ordinance in controversy. In support of his contention that the provision of the ordinance under discussion is invalid, void, unreasonable and an interference with individual liberty, counsel for appellant cites Gastenau v. Commonwealth, 108 Ky. 473, 94 Am. St. Rep. 386, 56 S.W. 705, 49 L. R. A. 111. The ordinance in that case is dissimilar in some particulars to the one under consideration, but the reasons for declaring the ordinance unconstitutional seem to be applicable to the case at bar. The language of the ordinance is as follows: "Be it ordained by the board of council of the city of Middlesboro Bell county, Ky.: (1) That it shall be unlawful for any woman to go in and out of any building where a saloon is kept offering for sale any spirituous, vinous, and malt liquors, or to frequent, loaf, or stand around said building within fifty feet thereof. (2) That it shall be unlawful for any saloon-keeper, or his clerk or employees to allow or permit any woman or women to come in or out of his building where spirituous, vinous, and malt liquors are sold or offered for sale, and it shall be the duty of said saloon-keeper, clerk or employees to immediately notify the officers that the first section of this ordinance has been violated, giving the name and color of the offender." These two sections are followed by section 3, which provides for the punishment of the proprietor if he violates section 2, and for the offender if she violates section 1. The Kentucky court, speaking through Mr. Justice Gaffy, disposes of the case in the following concise and forcible language: "It is contended for appellee that the sole object of the ordinance is to regulate and control the sale of liquors by reason of the fact that very disreputable, low and vile women congregate in and about saloons and places where liquor is sold, thereby causing affrays, fights, murder and other crimes. . . . It seems to us that the ordinance in question is unreasonable and an unnecessary interference with individual liberty, and tends to subject the vender of liquors as well as citizens to unreasonable prosecutions. If the ordinance only included the persons mentioned in appellee's brief, we are not prepared to say that it would be invalid. But it might be that very good women would, for proper and legal purposes, find it necessary to go into a building where liquors are sold, . . . . and besides, we know of no rule which prohibits a well-behaved woman, for a lawful purpose, and in a lawful manner, from going into or near a saloon. It may be taken for granted that it is not often that such would be the case, but the ordinance in question makes no exceptions. If the citizens of Middlesboro choose to have saloons established where liquor is sold, it follows that all orderly and well-behaved persons have a right in an orderly manner, and for a lawful purpose, to visit such...