Tom & Jerry, Inc. v. Nebraska Liquor Control Commission

• Decision Date: 19 July 1968
• Docket Number: No. 36923,36923
• Citation: 160 N.W.2d 232,183 Neb. 410
• Parties: TOM AND JERRY, INC., a Corporation, et al., Appellants, v. NEBRASKA LIQUOR CONTROL COMMISSION, an Administrative Agency of the State of Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 232

160 N.W.2d 232

183 Neb. 410

TOM AND JERRY, INC., a Corporation, et al., Appellants, v. NEBRASKA LIQUOR CONTROL COMMISSION, an Administrative Agency of the State of Nebraska, et al., Appellees.

No. 36923.

Supreme Court of Nebraska.

July 19, 1968.

Syllabus by the Court

1. The right to engage in the sale of intoxicating liquors involves a mere privilege; and restrictive regulations or even a suppression of the traffic do not deprive persons of property without due process of law, violate the privileges and immunities clause, the due process clause, the uniformity provisions, nor, unless they contain irrational classifications or invidious discriminations, the equal protection of the law as provided by the state and federal Constitutions.

2. While it is competent for the Legislature to classify for purposes of legislation, the classification, to be valid, must rest on some reason of public policy, some substantial difference of situation or circumstance, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects to be classified.

3. The provisions of section 53--168, R.S.Supp., 1967, placing persons having retailer's licenses to sell beer in one class and persons having retailer's licenses to sell alcoholic liquors in another class, for purposes of legislation in regulating the liquor traffic, is not arbitrary or unreasonable and therefore valid.

4. Where an exemption from the operation of a general law dealing with intoxicating liquors is not made applicable to all persons in the same class similarly situated, such provision is invalid as granting special privileges or immunities.

5. There is no vested right in an existing law which precludes its amendment or repeal, and there is no implied promise on the part of the state to protect its citizens against incidental injury occasioned by changes in the law.

6. Where it appears that an unconstitutional portion of an act can be separated from the valid portions and the latter enforced independent of the former, and it further appears that the invalid portion did not constitute such an inducement to the passage of the valid parts that they would not have passed without them, the former may be rejected and the latter upheld.

7. A severability clause in a statute is not a condition precedent to a determination of the question of severability.

8. Where the title of an amendatory or supplemental act sufficiently indicates the nature of the legislation in it contained, or the nature of the changes or additions by it made, it is immaterial whether or not the provisions of the act amended are covered by the title of the amendatory act.

9. Legislative intent, when apparent from the whole statute, is not to be thwarted by strained and unusual interpretations of particular words not required under the circumstances, nor because the statute previously was difficult in detail, or that a subsequent amendment has changed it in some respects.

10. A primary rule of construction is that the intention of the Legislature is to be found in the ordinary meaning of the words of a statute in the connection in which they are used and in the light of the mischief to be remedied.

Seymour L. Smith, Omaha, for appellants.

Clarence A. H. Meyer, Atty. Gen., Robert R. Camp, Asst. Atty. Gen., Lincoln, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, McCOWN and NEWTON, JJ., and KOKJER, District Judge.

CARTER, Justice.

This is a suit for an injunction brought by Tom and Jerry, Inc., and others, against the Nebraska Liquor Control Commission and its members and secretary, to enjoin the enforcement of L.B. 330, now section 53--168, R.S.Supp., 1967, enacted by the 1967 session of the Legislature, for the reason that said act is violative of specified provisions of the Constitutions of Nebraska and of the United States. The trial court found the act to be constitutional with one exception not an inducement to its passage, and entered its judgment accordingly. The plaintiffs have appealed.

The act existing prior to the enactment of section 53--168, R.S.Supp., 1967, permitted the purchase of beer by a retailer licensed to sell it on credit for a period of 30 days and provided a penalty if it was not paid for within 30 days from the date of delivery. S. 53--168, R.R.S.1943. Section 53--168, R.S.Supp., 1967, effective October 23, 1967, provides that the purchase of beer by a licensed retailer must be paid for in cash on delivery and imposes a penalty on a licensed beer retailer not complying with the provision. It is this provision in the new act, among others, which is alleged to be unconstitutional by the plaintiffs.

Plaintiffs contend that the act is violative of Article I, section 25; Article III, section 18; and Article III, section 14, Constitution of Nebraska, and section 1 of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution of the United States.

Plaintiffs assert that the new act, in prohibiting a retailer from accepting credit for the purchase of beer from a wholesaler and permitting a 30-day credit on a retailer's purchases of other alcoholic liquors, violates the due process and equal protection clauses of the state and federal Constitutions and is discriminatory between the holders of retail licenses dealing in beer and those dealing in other liquors. As a corollary to these questions, it is also asserted that there is an unreasonable classification between beer and liquor licensees which is inhibited by constitutional provisions.

The Legislature has broad powers in the regulation and control of the liquor traffic. The control of the licensed liquor business is different than the ordinary exercise of the police power of an unlicensed business for the protection of the health, safety, morals, and welfare of the public. The engaging in the sale of intoxicating liquors is a mere privilege; and restrictive regulations or even a suppression of the traffic does not violate provisions of the state and federal Constitutions relating to due process, privileges or immunities, uniformity, nor, unless wholly arbitrary in their discriminations between persons, the equal protection of the law. But even so, justification for classification must exist; purely arbitrary treatment cannot be sustained. Safeway Stores, Inc. v. Nebraska Liquor Control Commission, 179 Neb. 817, 140 N.W.2d 668; Marsh & Marsh, Inc. v. Carmichael, 136 Neb. 797, 287 N.W. 616.

The very issues before this court were decided in Weisberg v. Taylor, 409 Ill. 384, 100 N.E.2d 748. In that case, the court said: 'Our first inquiry, therefore, is whether or not the imposition of credit restrictions has any relationship to the public health, safety, or welfare within the police powers of the State. The mere statement of the proposition that the extension of credit by a creditor to a debtor does impose on the debtor an interest supervision, power and influence on the part of the creditor proves itself. Indeed, this has been judicially recognized in Sullivan, Inc. v. Cann's Cabins, 309 Mass. 519, 36 N.E.2d 371, 136 A.L.R. 1236, where the Massachusetts court stated: 'Its purpose appears to have been to avoid the evils believed to result from the control of retail liquor dealers by manufacturers, wholesalers, or importers through the power of credit. Those evils do not, as a rule, depend upon the nature of the consideration out of which the credit arose. They depend upon the power of the creditor over the debtor.' * * * The restriction or curbing of credit by legislative enactment is but a logical extension of these prohibitions and is directly connected with the evils long recognized in the 'tied house.' * * * Credit restrictions on a nationwide basis are inaugurated on the theory that they will ultimately reduce sales and the consumption of goods. If the legislature, therefore, believes that the restrictions here imposed will reduce the volume of sales and tend to promote temperance rather than intemperance, then we cannot say as a matter of law that such a conclusion has no connection with the public welfare, safety, or morals, even though we may doubt that it will accomplish in full such result. * * *

'Our next question is whether or not the no-credit provision with respect to beer and the fifteen-day credit limitation on distributors of beer discriminates between such dealers as compared with distributors and retail dealers of other alcoholic beverages. * * * Historically, therefore, there is a sound basis for distinguishing between beer and other alcoholic beverages. The volume of any single brand or product of any single distillery of whiskey, or wine, or spirits, used in a single tavern is hardly sufficient to interest the distillery in the active control and management of that establishment. Most of such products are shipped from a distance. Beer, on the contrary, is more localized than are other alcoholic beverages. The interest of the brewery in acquiring trade in its local area is considerably more self-evident. There is, however, we believe, historically and otherwise, a sound basis for the distinction and classification here made by the legislature. We cannot say that, in drawing that distinction and imposing the credit restriction, the legislature has acted in an arbitrary or discriminatory manner in seeking to avoid a recurrence of the evil which was historically known to them. * * *

'We have already observed that the right to sell liquors is permissive only and the regulations may be much more stringent than those permitted in other businesses. ...