29 Colo. 488 | Colo. | 1902
delivered the opinion of the court.
The district court issued a permanent writ of injunction restraining the defendants below, appellants here, from enforcing the provisions of sections 745 and 746 of Article 15 of the general ordinances of the city of Denver, upon the ground that they are unconstitutional and that plaintiff had no adequate remedy at law. They read:
“Sec. 745: Each and every liquor saloon, dram shop, or tippling house keeper, * * * * who shall have or keep, in connection with or as part of such liquor saloon, dram shop or tippling house, any wine room or other place, either with or without door or doors, curtain or curtains, or screen of any kind, into which any female person shall be permitted to enter from the outside, or from such liquor saloon, dram shop or tippling house, and there be supplied with any kind of liquor whatsoever, shall, upon conviction, be fined as hereinafter provided.”
“Sec. 746: No person *, * * * having charge or control of any liquor saloon, or place where in.
This ordinance was before our court of appeals in Walker v. The People, 5 Colo. App. 38, and in City of Denver v. Domedian, 15 Colo. App. 36, 1st Colo. Dec. p. 441.
In the former case, under the evidence, and in the atter, upon t he stipulated facts, it was held that the cases as made did not come within the prohibition. In speaking of these regulations, however, Mr. Justice Wilson in the latter case said:
“We agree that the ordinance is a good one, that its objects are most praiseworthy, and that its rigid enforcement would meet with the approval of every good citizen.”
The question of its constitutionality was not there mooted, but this expression of Judge Wilson, if only
The power to make these particular regulations was expressly conferred by the general assembly upon the city council of the city of Denver by the 5th clause of subdivision twelve of sec. 20 of the charter, which provides:
“That no liquor saloon, dram shop or tippling house shall have or keep in connection with or as part of such saloon, tippling house or dram shop, any wine room or other place, either with or without doors, curtain or curtains, or screen of any kind, into which any female person shall be permitted to enter from the outside, or from such tippling house or dram shop, and there be supplied with any kind of liquor whatsoever.”
Plaintiff does not deny that he has kept a wine room into which he permits women to enter and there be supplied with liquor and suffers them to remain therein for that purpose contralto the specific provisions of these sections. Indeed he admits that he has violated the ordinance in both particulars, and proposes, unless prevented by the municipal authorities, to continue to do so. So that the principal question in the case is as to the constitutionality of the charter, rather than of the ordinance, for the latter confessedly is authorized by the charter. The ordinance is good if the charter provision is constitutional. Two questions are pressed by plaintiff for determination: First, was the case as made by the complaint one calling for the interposition of a court
1. The plaintiff does not contend that he is entitled to equitable relief by injunction unless the charter is void. Since, as appears later in the opinion, we hold it valid, it is not absolutely necessary to decide whether the admitted facts of the complaint warrant the granting of an injunction. This court does not look with favor upon the practice of restraining municipal authorities from executing municipal ordinances which so vitally concern the tranquility of the community and good order of society. While i.t is true, as said in the case of City of Denver et al. v. Beede, 25 Colo. 172, that in exceptional cases a court of equity will restrain a prosecution at law when the legal question involved is the same at law as in equity, such is not the general rule; and a clear case should be made out before such extraordinary relief is awarded. It is not necessary here, to indicate in what cases such relief will, and in what it will not, be given. But it is doubtful if this complaint is so essentially different from that in the Beede case as to render inapplicable the rule there announced. We mention this point for the purpose of again emphasizing our view that only in extreme and exceptional cases should a court of equity interfere with municipal authorities in the enforcement of such ordinances.
2. So far as the question at issue is concerned, these sections of the ordinance practically prevent a saloonkeeper from permitting women to frequent ■what are called wine rooms, there to be supplied with liquor; and it is only with respect to that feature of the ordinance that we are at present concerned, although it may be that the principles which govern this par
With respect to the latter contention, it is sufficient merely to say that if this section, when enacted, gave to women the right equally with men to frequent saloons, and if such right depended solely upon statute, it was taken away by the general assembly, when at a later date it adopted a charter for the city of Denver, whereby authority was conferred upon the city to deprive women of the enjoyment of the so-called right.
Probably plaintiff’s theory may be made still more clear by a summary of the argument of his counsel. He argues that the saloonkeeper has as much right to sell liquor to women and to allow them within his place of business, whether in the saloon proper or in a room adjacent thereto, as he has to sell to men and to permit them within such places; that a woman has as much right to buy and drink liquor as men, and if so, the keeper of a saloon has the correlative right to sell to her with as much freedom as to men; that
If this ordinance was passed under cover of the incidental powers of the city, and if it also appeared to the court to be unreasonable, unfair, partial, arbitrary, or oppressive, it might be nullified. But, if it is subject to such objections only, which does not seem to us to be true, still it could not be set aside upon any of those grounds for the general assembly has expressly given to the city council authority to pass it in the form in which it is expressed, and if constitutional, it must stand.
Phillips, v. Denver, 19 Colo. 183.
The charter provision comes clearly within the general police power, which every sovereign state, through its legislative department, possesses; and while, as counsel for plaintiff contends, under the guise or pretense of passing laws for the protection of the public morals and the general welfare and safety of the people, the legislature may not contra
Under the-license laws of this state no one may engage in the business of selling liquor without a license. He has no absolute right to sell at all. It is only a privilege he gets when a license is granted. The city of Denver, under its charter, has the exclusive power to prohibit, restrain, tax and regulate the sale of intoxicating liquors. It may exercise that power to prohibit the sale altogether; or, if it see fit, it may regulate the sale and impose such conditions as it deems necessary. Under these license laws, one may not engage in the liquor traffic as of common right, but may do so only upon compliance with prescribed regulations, and if he applies for a license under which only he may lawfully sell, he is held to take that license with whatever restrictions or limitation's are imposed by the authority which, and which only, can give him the coveted privilege. One of the conditions which the charter of Denver requires to be inserted in every liquor license, is the one of which plaintiff complains. He vigorously contends that the question is not one of morality at all, but merely whether or not, in the pursuit of a lawful calling, one may be deprived of the right of selling his property to whomsoever he pleases, and whether he may permit to enter his place of business all persons, both female and male, who wish to buy.
It is to be observed that no woman is here to as
If a discrimination is made against women solely on account of their sex, it would not be good; but, if it is because of the immorality that would be likely to result if the regulation was not made, the regulation would be sustained. That injury to public morality would ensue if women were permitted without restrictions to frequent wine rooms, there to be supplied with liquor, is so apparent to the average person, that argument to establish so plain a proposition is unnecessary. But, if some people might not be willing to concede this, it is enough to say that the general assembly, speaking through the city council,
Again we say, the selling of liquor is not a lawful calling in the city of Denver, unless a license is secured for it, and it becomes such only when conducted as the license specifies. Plaintiff’s whole argument proceeds upon false premises, and his conclusion is necessarily wrong. The right to sell liquor is not an inherent right of a citizen of the United States. The traffic in it is unlawful without a license, and it may be prohibited in Denver. It necessarily follows that all regulations for its sale and the privilege of selling when granted are solely within the lawful discretion of the city council under the existing charter of the city. This ordinance does not operate as a discrimination between different licenses. It applies equally to every one of that class, and the fact that it restricts the classes or persons to whom sales may be made in certain places or localities does not make it invalid. All courts can readily see that the restrictions therein found and. the classification made with respect to the persons permitted to frequent wine rooms for supplying themselves there with liquor, are based upon reasons that have their seat in the facts of nature, and that such regulations are conducive to, and are reasonably adapted to secure, the worthy object of preserving public moral-, ity. We might well stop here, but, to show how
The supreme court of the United States in the case of Crowley v. Christensen, 137 U. S. 86, has thus effectually disposed of plaintiff’s argument:
“The sale of such liquors in this way (by retail) has therefore been, at all times, by the courts of every state, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can thus be disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of the state is fully competent to regulate the business—-to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the state or of a citizen of the United States.”
The supreme court of Indiana in the case of Blair and others against Kilpatrick, 40 Ind. 312, and in Welsh v. The State, 126 Ind. 71, h'as held that a law providing for the grantingof license to retail intoxicating liquors, which requires that the vendor shall be a male inhabitant of the state, is not in conflict with the United States constitution, which provides that the citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states. The supreme court of Ohio in Bergman v. Cleveland, 39 Ohio St. 651, decided that an ordinance which makes it an offense for the proprietor
The laws of many states prohibit the sale of intoxicating liquors to Indians, minors, habitual drunkards, and other classes of people, and, in many of the southern states, before the civil war, sales to slaves and free negroes were forbidden. The holding in all the states has been uniform that such regulations when deemed by the legislature necessary or proper in the interests of good morals, may not be interfered with by the courts.
We conclude this brief review by referring to the authorities which are collated in the 17 American and English Enc. of Law, second editition, p. 210, et seq.) to Mugler v. Kansas, 123 U. S., 623; the License Cases, 5 How. 504 (16 Curtis 513); and Exparte Christensen, 85 Cal. 208, where many cases are cited, and exhaustive opinions of learned judges may be examined.
In In re Mary Maguire, 57 Cal. 604, it was held that a regulation which prohibited women from being employed in saloons to serve drinks, the same as men,
A case quite in point is that of Schwuchow v. City of Chicago, 68 Ill. 444, and as the principles which govern this case are so well expressed there, we take the liberty of quoting from the opinion. The court speaking by Mr. Justice Walker, said:
“The legislature, then, having conferred such power, it was for the common council to determine whether they would wholly suppress the sale of intoxicating liquors, or grant the privilege on such terms and conditions as they might choose. And the power was ample, under this grant, to impose as a condition, that when a license is granted it should be liable to revocation on the violation of the ordinances regulating the traffic, or, having absolute control over the whole subject of granting licenses, they may impose any other condition calculated to protect the community, preserve order and to suppress vice.
And as to the point that appellant in that case had accepted a license from the city which contained certain restrictions which he sought to repudiate, the court uses this language:
“But above all, appellant, by accepting and acting under this license, consented that the mayor might in his discretion, revoke it, and, having agreed to it he now has no right to insist that it shall be adjudged forfeited by a'judicial tribunal—by some process which does not occur to us as applicable to that end.”
In the supreme court of Kentucky in Gastineau v. Commonwealth of Kentucky, a recent case reported in 49 Lawyers’ Reports, Annotated, p. in, a municipal ordinance was declared void which made it a misdemeanor for a woman to go into any building where
That the regulations attacked here are a legitimate exercise of the police power of the state we have no doubt; that their object is to protect the morals of the community, to secure good order, and advance the general welfare cannot be gainsaid; that the right to sell liquor is not an inherent right of a citizen of the United States is beyond cavil; that plaintiff has not been deprived 0/ any property or civil right without due process of law, or denied any privilege belonging to a citizen of the United States, is equally clear. As so aptly expressed by the supreme court of Illinois in the Schwuchow case, supra, restraints and limitations upon the liquor traffic may be upheld, which might not be sustained as to callings that may be pursued as of common right. We are clearly of opinion that the regulations here complained of are not inhibited by any provision of the federal or state constitution.
The judgment is therefore reversed and a judgment entered here dismissing the action.
Reversed and action dismissed,