173 So. 417 | Miss. | 1937
Lead Opinion
The appellant filed a petition in the circuit court of Hinds county, praying for a writ of prohibition against C.L. Graves, justice of the peace, restraining enforcement of an ordinance adopted by the board of supervisors of Hinds county, creating a zone in a residential section adjoining the city of Jackson on the north, and prohibiting the sale of beer within the said zoned territory. The order of the board of supervisors provided "that the board finds that the property hereinafter described is a residential section adjoining the city of Jackson, and it will promote the public health, morals and *590 safety for the hereinafter described territory to be zoned against the sale of beer and wine, so as to prohibit the sale of the same within said territory. It is therefore ordered that there is hereby zoned against the sale of beer and wine, and the sale of beer and wine is hereby prohibited at all times in the following described territory lying in the first district of Hinds county, Mississippi, to-wit: (describing the territory). This action is by virtue of authority conferred by chapter 171, Laws of 1934."
The petitioner averred that he was engaged in business in the said territory, and that he had secured, prior to the passing of the zoning ordinance, a license to sell beer in said county; and that by chapter 171, Laws of 1934, the sale of beer and wine was legalized by the Legislature, and that the sale of beer constitutes the principal part of the business of the petitioner. He alleged, in general terms, "that said ordinance is unreasonable, arbitrary, oppressive and confiscatory and that its enforcement would have the effect of destroying his business and deprive him of his property without due process of law if he should undertake to comply with same; or, if he should continue the sale of beer, as he is authorized to do under the laws of Mississippi, he would be subjected to multitudinous vexations and oppressive prosecutions; and that the said ordinance stands as a vexatious menace to his personal liberty and the destruction of his property rights, all without due process of law and contrary to provisions of section 14 of the Mississippi Constitution." He further averred that he had no plain, adequate remedy at law.
The petition was demurred to, the demurrer sustained by the circuit court, and an appeal was granted, with a stay of proceedings, or a prohibition, pending appeal. It will be observed from the statement of the petition that no facts are specified, showing that the ordinance was unreasonable if it was within the power of the board of supervisors to enact it. Chapter 171 of the Laws of *591 Mississippi of 1934, and section 1, provide "that it shall hereafter, subject to the provisions hereinafter set forth, be lawful in this state to transport, store, sell, distribute, possess, receive, and/or manufacture wine and beer of an alcoholic content of not more than four per centum by weight." By section 2 it was provided "that if any county, at an election held for the purpose under the election laws of the state, shall by a majority vote of the duly qualified electors voting in the election determine that the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages, shall not be permitted in such county, then the same shall not be permitted therein," etc.
Several of the sections dealing with the licensing, transportation, and possession are stated or provided for in the chapter. By section 16 of the chapter it is provided that "no permit shall be granted to a distributor unless the applicant therefor shall have been a resident of the state of Mississippi for at least two years." Section 17 provides that "no sale of light wine or of beer shall be made to a minor." Section 18 provides that "municipalities may enforce such proper rules and regulations for fixing zones and territories, prescribing hours of opening and of closing, and for such other measures as will promote public health, morals, and safety, as they may by ordinance provide, and the board of supervisors of any county may make such rules and regulations as to territory outside of municipalities as are herein provided for municipalities."
By section 22 of the act it is provided: "(a) It is hereby declared that it is the legislative intent that this act privileges the lawful sale and manufacture, within this state, of light wines and beer as described herein; and that the provisions of this act are severable; and if any word, clause, sentence, section, paragraph, or part of this act shall be held unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the same shall not affect any of the remaining parts, *592 sections, paragraphs, sentences, clauses, or words of this act. (b) Provided, however, that nothing in this act shall prohibit the governing body of any municipality from designating what territory surrounding churches and schools in said municipalities, and the board of supervisors of any county from designating what territory surrounding churches and schools outside of any municipality, in which said wines and beer shall not be sold or consumed."
It is the contention of the appellant that the power of a municipality, and of boards of supervisors outside of municipalities, under section 18 above quoted, is merely to fix regulations for the hours of opening and closing, and to provide zones for such regulations as may be enacted thereunder; and that the section does not authorize the board of supervisors to prohibit the sale of beer within such zones — that it is a mere regulation, and not prohibition that municipalities and boards of supervisors may make. The appellant relies upon Crittenden v. Booneville,
Prior to the enactment of chapter 171 above referred to, the state had outlawed the sale of all liquors, including beer and wine, containing in excess of 1.5 per cent of alcohol. See Laws of 1908, cc. 113-117, pp. 112-120. The Legislature was departing from the policy of total prohibition to a limited sale of intoxicating liquors. They were aware of the history of legislation in reference to the sale and possession of intoxicating liquors dating back many years. It was recognized that there might be portions of the territory within the county where the sale of beer and wine might be hurtful to morals and to the safety of the community. They recognized that a vote of the entire county might authorize the sale of beer and light wines in the county, or that a majority might prohibit it; but they also recognized that in some parts of a county favorable to the sale as a whole, there might be zones where it would be hurtful and injurious to public morals and public safety. In our opinion, it was intended to confer upon the board of supervisors in territory outside of the municipality, and upon the municipality within its territory, the power to fix zones in which the sale might be conducted, and other zones in which it might be prohibited. They were not dealing with a subject entirely harmless within itself. They knew that such liquors when drunk to excess produced intoxication. Fuller v. Jackson,
"It is therefore a consideration of supreme importance to state and nation that the home and desirable home surroundings in cities and large towns shall be preserved and made permanently secure. . . . We need not elaborate upon considerations so distinctly vital; we merely introduce this as among those in the mature view of which we have no hesitancy in declaring that those reasonable regulations which will preserve the home from intrusion and will secure its permanency is within the legitimate field of the police power of the state; and that zoning laws, such as those now in the statute books of the state, to that end, are valid."
Surely, it is as important that the safety and security of the homes of the smaller towns and rural sections shall also be matters for legislative consideration, and we think that the Legislature had in mind the securing of the peace and safety of communities wherein the necessity for regulations to that end exist in the judgment of the board of supervisors.
In the opinion in the case of City of Jackson v. McPherson, supra, the court cited Euclid, Ohio, v. Ambler Realty Co.,
It is argued that paragraph (b) of section 22 gives the exclusive power to the boards of supervisors and to municipalities to prohibit the sale of beer and wine. Surely it was not the purpose of the Legislature to permit a person actuated solely by the spirit of gain to establish a beer saloon in any community, whether within the municipality, or outside of the police district, and to limit the city merely to the fixing of regulations for the hours of opening and closing thereof. Surely it was *597 intended that the municipality could bar a business which in its very nature might be hurtful to the peace, quiet, and safety of a particular portion of the municipality. Surely, also, it was intended that the county authorities were to have power to fix the territory, as well as the hours of opening and closing, and other necessary police regulations — certainly that must have been in the minds of those enacting the statute.
In regard to the powers conferred by section 18, they must be based upon reasonable conditions — some basis of fact ascertained by the board which would have a material bearing upon whether the sale of such liquors should be by a resident of the state for a period of two years, omitting any requirement that the applicant shall be a person of good moral character — a requirement which ran through our law for many years prior to the enactment of total prohibition in 1908. For instance, it was provided in section 2459 of the Revised Code of 1871 that, "No license shall be granted to any person to retail vinous or spirituous liquors . . . unless the applicant shall first produce a petition for the issuance of such license, recommending the said applicant to be of good reputation, and a sober and suitable person to receive such license, which petition shall be signed by a majority of the legal voters resident in the supervisor's district, where the liquors are intended to be sold," etc. This requirement ran through all subsequent laws authorizing the sale of intoxicating liquors, until the present enactment. It will be noted from the case before us that the zoning of the territory in which the sale was prohibited was here in a residential section contiguous to the largest city in the state, and upon a much traveled highway. While this fact is not controlling, yet it is very desirable, in thickly settled territories within easy reach of large populations, and without police protection, that such zones be created if, in fact, any necessity therefor exists. And we think that we must accept the finding of the board of supervisors as justified by the facts *598 where the petition does not set forth specific facts, but merely general conclusions.
In deciding this case, we recognize the fact that the Legislature has the constitutional power either to prohibit or permit the sale of intoxicating liquors, and that it is the judge as to the conditions upon which they base their action. Our past history shows that the Legislature has frequently provided for the segregation of particular territory for prohibition, where sales were permitted in other places. Businesses of the kind here treated of are peculiarly such as need police supervision. The legislative will must prevail, and no personal opinion can obstruct it within its constitutional limits.
We think the language we have quoted from the statute clearly indicates the legislative will, especially when considered in connection with the public policy of the state as evidenced for many years in dealing with this subject. The circuit judge having held in accordance with these issues, the judgment is affirmed.
Affirmed.
Smith, C.J., did not participate in the decision of this case.
Dissenting Opinion
The ground for the adoption of the ordinance involved was that the territory is a residential section, and the public health, morals, and safety would thereby be promoted. In other words, that the public health, morals, and safety would be promoted because it is a residential section.
There is no authority in the statute, either expressed or implied, to prohibit the sale of beer and wines in any territory because such territory is residential. The only authority to absolutely prohibit their sale is contained in the latter part of paragraph (b) of section 22, and that is in territory "surrounding churches and schools." There are no churches and schools involved here — it is a residential section alone.
The ordinance makes no attempt to regulate — it is simply a prohibition ordinance. The power to zone is a power to regulate, not prohibit, and that is true of the power to suppress. Ex parte O'Leary,
In the Crittenden case the statute involved gave the power to municipalities to "regulate, suppress and license" pool rooms. Crittenden was operating a licensed pool room. The municipality passed an ordinance prohibiting their operation. The court held the ordinance void upon the ground that the power to regulate and suppress did not carry with it the power to prohibit. In the Comfort case the court held that the power to suppress hog-pens in municipalities did not carry with it the power to prohibit by a general ordinance. In the Fitzhugh case the court held void an ordinance of the city of Jackson prohibiting business houses in residential sections of the municipality. It was an ordinance, not *600
to regulate, but to prohibit. Regulation is permissible; City of Jackson v. McPherson,
According to the controlling opinion, the board of supervisors and municipal authorities of a county together could zone the whole county into a residential section, and prohibit the sale of beer and wines therein, and thereby repeal chapter 171 of the Laws of 1934, without an election, as therein provided. The majority opinion is a good temperance lecture, and might be good legislation, but it ought not to be declared the law now — a harmful precedent for the future is the trouble with it.
Griffith, J., joins in this dissent.