Village of St. Anthony v. Brandon

• Decision Date: 17 June 1904
• Citation: 10 Idaho 205,77 P. 322
• Parties: VILLAGE OF ST. ANTHONY v. BRANDON
• Court: Idaho Supreme Court

77 P. 322

10 Idaho 205

VILLAGE OF ST. ANTHONY v. BRANDON

Supreme Court of Idaho

June 17, 1904

CITY OR VILLAGE ORDINANCE-TITLE-SUFFICIENCY OF.

The title to an ordinance of a city or village in this state, to wit, "An ordinance regulating and licensing liquor dealers within the village of St. Anthony," is sufficient where the ordinance provides for the payment of a fixed sum for retail liquor dealers only, and prohibits the business of running a restaurant or lunch counter in connection therewith or in the same room, and also requires the doors to be closed on Sunday, and also prohibits music singing and dancing in the room occupied as a saloon.

(Syllabus by the court.)

APPEAL from District Court, Fremont County. James M. Stevens, Judge.

Judgment for respondent, from which defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

Hawley Puckett & Hawley and King & Millsaps, for Appellants.

Had the plaintiff, said board of trustees, power or right to enact that portion of said ordinance making it unlawful to carry on, or allow to be carried on, any other business in the same room wherein intoxicating liquors are sold? We are aware that, under the provisions of section 1916 of the Political Code of Idaho and especially subdivision 15 thereof, the village trustees have the right to license, regulate and prohibit the selling or giving away of any intoxicating malt vinous, mixed or fermented liquors. But this provision of the ordinance in question is not for the purpose, nor does it regulate the sale of liquors, but it is purely and simply an attempt to regulate a legitimate business, and, we might say, to even go further, and prohibit the carrying on of any legitimate business in the same room where intoxicating liquors are sold, and is certainly against public policy, as being in restraint of trade. If the village trustees can prohibit the carrying on of any other business in the same room wherein intoxicating liquors are sold, they could certainly extend it to the same block, the same street, or, why not, even go so far as to say that no other business could be carried on in the same town where intoxicating liquors are sold. (U. S. Const., 14th Amendment.) The ordinance in question is clearly class legislation under the decisions and definitions given by the authors, as it does not affect all alike belonging to the same class; in other words, it only affects those dealers who sell liquor to be drank in, on or about the premises where sold, or, as a matter of fact, retail liquor dealers. The ordinance does not pretend to license or regulate the sale of liquors not to be drank in, on or about the premises where sold, or by druggists. The whole proposition in a nutshell is simply this: It attempts to regulate the sale of liquors at retail, but not the sale of liquors at wholesale, or by druggists, which, we contend, is clearly class legislation, as all ordinances must be impartial, fair and general. (Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642; Dillon's Municipal Corporations, sec. 256; City of Cario v. Feuchter et al., 159 Ill. 115, 42 N.E. 308; City of Monmouth v. Popel et al., 183 Ill. 634, 56 N.E. 348.)

Caleb Jones, for Respondent.

It is suggested that the subject of the ordinance is not clearly expressed in the title of the ordinance, the title being as follows: "An ordinance regulating and licensing liquor dealers within the village of St. Anthony." (State v. Beattie, 16 Mo.App. 131; In re Wilson, 32 Minn. 145, 19 N.W. 723; Smith's Modern Law of Municipal Corporations, sec. 517; Horr & Bemis on Municipal Police Ordinances, sec. 71; State v. Cantieny, 34 Minn. 1, 24 N.W. 461; State v. Gut, 13 Minn. (Gil. 315) 341; State v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765; Board of Supervisors of Ramsey Co. v. Heenan, 2 Minn. (Gil. 281) 330; Tuttle v. Stout, 7 Minn. (Gil. 374), 465, 82 Am. Dec. 108; City of St. Paul v. Colter, 12 Minn. (Gil. 16) 49, 90 Am. Dec. 278.) Examples of reasonable ordinances with similar provisions to that of the ordinance in question can be found in Horr & Bemis on Municipal Police Ordinances, sec. 130; State v. Preston, 48 Vt. 12; Ritchie v. Zalesky, 98 Iowa 589, 67 N.W. 399; Brown v. Lutz, 36 Neb. 527, 54 N. W, 860. Had the plaintiff's said board of trustees power or right to enact that portion of said ordinance making it unlawful for persons engaged in the sale of intoxicating liquors to permit the door or doors of their place of business to be opened on Sunday? I contend that this regulation is in the interest of decency and morality, and the power to make such a regulation concerning the acts of liquor dealers is given to the village trustees in their plenary power to completely prohibit. It is a usual regulation, probably the most common of all regulations in connection with the liquor business, as the following decisions will show: Kurtz v. People, 33 Mich. 279; McNiel v. State, 92 Tenn. 719, 23 S.W. 52; State v. Harris, 50 Minn. 128, 52 N.W. 387, 531; Theisen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L. R. A. 234; Ex parte Abram, 34 Tex. Cr. App. 10, 28 S.W. 818.

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

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.--

This case was submitted to the lower court on an agreed statement of facts, to wit:

1. That the plaintiff, the village of St. Anthony is a municipal corporation duly and regularly organized and existing under and by virtue of the laws of the state of Idaho and is a village, and situated in Fremont county, in the state of Idaho; that M. E. Jamison, B. C. Bowers, W. C. Yager, W. W. Yoemans and J. L. Pratt are the duly qualified and acting board of trustees of the village of St. Anthony; that M. E. Jamison, is the duly qualified and acting chairman of the board of trustees, and that Charles C. Bowerman is the duly qualified and acting clerk of the said board.

2. That the defendants, Thomas J. Brandon, Jr., and J. C. Brandon, are partners and doing business under the firm name and style of Brandon Brothers in said village of St. Anthony, in Fremont county, state of Idaho as proprietors and keepers of a saloon, wherein they sell and dispose of spirituous, malt and fermented liquors and wines to be drank on the premises where sold, and cigars, and that they have been, and are now, engaged in said business at said place.

3. That on the fourteenth day of July, 1903, at a regular meeting of the board of village trustees of said village of St. Anthony, an ordinance No. 90 was regularly presented to said board of village trustees, for their action thereon, which said ordinance and the title thereof is in substance following:

"An Ordinance Regulating and Licensing Liquor Dealers Within the Village of St. Anthony."

Section 1 prohibits the sale of liquors of any kind to be drank in, on, or about the premises where sold, without first procuring a license and giving a bond as hereinafter provided.

Section 2 requires all applications to sell liquors to be drank in, on, or about the premises to be made to the board of trustees in writing, setting forth the names of the parties and a description of the place wherein it is proposed to commence and conduct said business.

Section 3 provides that before any license is issued the applicant shall produce before the board of trustees the receipt of the village treasurer showing payment of the amount due for such license, and execute and deliver to said board a bond to the state of Idaho in the penal sum of $ 1,000, with at least two good sureties.

Section 4 provides that each application shall pay the sum of $ 75 per quarter for such license, and no license under the provision of the ordinance shall be issued for a longer period than three months.

Section 5 provides for a revocation of a license in case of a violation of any of the provisions of the ordinances of the village or of the penal statute of the state, and makes it the duty of the board of trustees to revoke such license in case of any such violation.

Section 6 permits druggists to sell wines and liquors for sacramental, mechanical, medicinal and scientific purposes without a license.

Section 7 provides that on the presentation of an application to the board of village trustees, they shall on the approval of the bond direct the clerk to issue such license.

Section 8 provides that the license shall specify by name the person, firm or corporation to whom it shall issue, and shall designate the particular place at which the business shall be carried on.

Section 9 provides that any person licensed as aforesaid, or any person refusing or neglecting to obtain a license as herein provided, who shall sell, give away or otherwise dispose of any intoxicating drink at any time during the first day of the week, commonly called Sunday, except he be a druggist, and then only for medicinal purposes upon the prescription of a regularly licensed physician, shall be deemed guilty of a misdemeanor.

Section 10 prohibits any idiotic person or any minor under the age of twenty-one years, or any female, to enter, be or remain in said place.

Section 11 prohibits any other business to be carried on in the same place or room, or to permit the door or doors to be opened on Sunday or allow the door or doors to be used as a means of egress or ingress or entrance or exit to any other room where any other different class of business is carried on.

Section 12 prohibits any dancing, music, singing or loud or boisterous talking or any disorderly conduct on the premises where intoxicating liquors are sold.

Section 13 provides punishment for violation of any of the provisions of the ordinance.

It is stipulated that the ordinance was regularly passed and approved by the chairman of the board of truste...