Trageser v. Gray
| Decision Date | 05 December 1890 |
| Parties | TRAGESER v. GRAY, CLERK, ETC. |
| Court | Maryland Court of Appeals |
Error to Baltimore city court.
Argued before ALVEY, C.J., and MILLER, BRYAN, MCSHERRY, FOWLER, and BRISCOE, JJ.
Jos. S. Henisler and Fred C. Cook, for appellant.
Wm. S. Bryan, Jr., and Peter J. Campbell for appellee.
The act of 1890, chapter 343, prescribed a new system for the regulation of the sale of intoxicating liquors in the city of Baltimore. A board was established consisting of three commissioners, invested with the power of granting licenses to sell these liquors by retail. Every one applying for such license was obliged to file his petition with the board setting forth a number of statements tending to show that he was a fit person to be licensed. It was required to be verified by his own affidavit, and also to be sustained by a certificate of at least 10 respectable persons, declaring that they were acquainted with the petitioner, and that they had good reason to believe that all the statements of the petition were true, and that they therefore prayed that the license should be issued to him. Provision was also made for giving extended notification of the petition, by advertisement in two newspapers of general circulation in the city, and also for the public hearing of this petition, and the petition of other persons in favor of granting the license, and also remonstrances against granting it. It was further provided that licenses to sell by retail should be granted only to citizens of the United States of temperate habits and good moral character. A number of other regulations were made which it is not now necessary to state; but they all show extreme and anxious solicitude on the part of the legislature to diminish the evils arising from the excessive use of ardent spirits. If the commissioners should grant the license, the applicant was required to pay to the clerk of the court of common pleas $250, and thereupon it became the duty of the said clerk to issue it. Trageser, a native of Prussia, and not a naturalized citizen of the United States, instituted this proceeding for the purpose of testing the validity of this law. He contends that the law is null and void, and that he has a right to obtain a license under the law which was in full force before this statute was passed. He accordingly applied to John T. Gray, the clerk of the court of common pleas, for a license to sell spirituous liquors by retail; and offered to pay him the sum of $50, which was the license fee under the former law. The clerk refused to issue the license, and thereupon Trageser filed a petition in Baltimore city court, for a writ of mandamus to compel the issue. After answer and demurrer thereto, the city court dismissed his petition. The case is brought to this court by petition in the nature of a writ of error, and the sole question presented is whether the statute is a valid and constitutional enactment. Under every system of government, there must be power in some of its departments to provide for the regulation of the internal affairs of the state. Public morals, public health, public order, peace, and tranquility are objects of cardinal importance to the well-being of society. Without the power to protect and preserve these interests, civilized government could not exist. The limit and extent of this power are somewhat vague and undefined. Private interests are frequently found in opposition to the public good, and cases may doubtless occur in which it will be a matter of great difficulty and delicacy to settle with justice their conflicting pretensions. But it is not necessary to decide such questions until they arise. The merits of the present controversy will be ascertained by the application of sound principles under the guidance of authoritative adjudications. The habit of drunkenness, and the evils attendant upon it, have always received a considerable degree of attention from the law-making power. And when we consider the poverty, misery, ruin, and wretchedness which intoxication entails upon its unhappy victims, and the unspeakable woes which must be endured by helpless and innocent beings dependent upon them, and also the frequent crimes and disorders produced by the same cause, we may measure in some degree the necessity for a legislative remedy, if one can be found. Every consideration connected with the public welfare imperatively demands it. It is a duty which the legislature cannot evade. Their power over the whole subject under the constitution of this state cannot at this day be questioned. They may prohibit the sale of spirituous liquors entirely if they see fit to do so, or they may restrict it in any manner which their discretion may dictate. No one can claim as a right the power to sell, either at any time or at any place or in any quantity. If he is allowed to sell under any circumstances, it is simply by the free permission of the legislature, and on such terms as it sees fit to impose. In the law which we are now considering, the legislature hedged around this traffic with such safeguards as were deemed advisable for the purpose of protecting the public interest. It was an effort to restrict the licenses to such persons as would not abuse the privilege conferred. To this end the applicant was required to establish his fitness for the privilege by abundant testimony, and to promise under oath that he would not permit on his premises certain violations of the law, which have frequently been associated with the traffic, and which have caused great scandal, immorality, and disorder. And by section 653 j it was enacted that the license should be refused in all cases, "whenever, in the opinion of the said board, such license is not necessary for the accommodation of the public, or the petitioner or petitioners is or are not fit persons to whom such license should be granted; and if sufficient cause shall at any time be shown, or proof be made to the said board, that the party licensed was guilty of any fraud in procuring such license, or has violated any law of the state relating to the sales of intoxicating liquor, the said board shall, after giving notice to the person so licensed, revoke said license, and the criminal court of the city may in like manner revoke said license, if the party should be convicted before it, of any such violation." It was thought proper to confine the licenses to citizens of the United States, of temperate habits and good moral character. The privilege is very liable to be abused, and abuses would produce great public detriment. It therefore seemed wise to the legislature to confer it only on those who, being natives of the country, might reasonably be supposed to have a regard for its welfare, or who, not being natives, had, as required by the naturalization law, proven by credible testimony before a court of justice that they were attached to the principles of the constitution of the United States, and were well disposed to their good order and happiness. It was certainly the function of the law-making department to exercise its judgment on this question, and this court has no right to criticise its conclusion. We do not think that this law is, in any manner, in conflict with the constitution of this state.
We regard it as included "in that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government." Gibbons v. Ogden, 9 Wheat. 203. It has been uniformly held in all courts that no clause in the federal constitution interferes with the power of the states to promote and protect the public health, peace, morals, and good order within their respective limits. In Kidd v Pearson, 128 U.S. 1, 9 S.Ct. 6, the supreme court decided that a state has the right to prohibit or restrict the manufacture of intoxicating liquors within its limits; to prohibit all sale and traffic in them; and to inflict penalties for such manufacture and sale. We quote a passage relating to the manufacture, and necessarily it is equally applicable to sales: "We have seen that whether a state, in the exercise of its undisputed power of local administration, can enact a statute prohibiting within its limits the manufacture of intoxicating liquors, except for certain purposes, is not any longer an open question before this court." And it was further said that this power of local administration, usually called the "police power," was as broad and plenary as the taxing power. It is, however, maintained by the appellant that, although this statute was passed...
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