36 Del. 224 | New York Court of General Session of the Peace | 1934
delivering the opinion of the Court:
Before the enactment of the Liquor Control Act (38 Del. La/ios, c. 18) there was no law in force in this State, authorizing the sale of alcoholic liquor, except for medicinal
When it became apparent to many persons, that the repeal of the Eighteenth Amendment to the United States Constitution was certain to take place, the Legislature of 1933 proceeded to clear the way for the lawful manufacture, sale and possession of alcoholic and malt liquors in this State (see 38 Del. Latos, c. 11 et seq.). It repealed both the Klair Law and the Loose Law; Acts were passed providing for the submission to the vote of the qualified electors of Rural New Castle, Kent and Sussex Counties, on Tuesday next after the first Monday of June, 1933, the question of whether the manufacture and sale of intoxicating liquors should be licensed or prohibited within their limits, as required by Section 2 of Article 13 of the Constitution. Then “The Liquor Control Act” was passed in order that there might be some law for the regulation of the liquor business in the city of Wilmington when the Eighteenth Amendment was repealed, and also in Rural New Castle, Kent and Sussex Counties, in case they should vote in favor of the manufacture and sale of intoxicating liquor.
This is a very comprehensive statute, dealing with all phases of the manufacture, distribution, sale, purchase, importation, transportation and possession of alcoholic liquor, so far as its authorization in this State is concerned. It created a commission under the name of the “Delaware Liquor Commission,” to consist of one person and to be appointed by the Governor on or before May fifteenth, 1933. The appointment of this commission was made within the time provided for by the Act, and it then became vested with the duty and authority of administering the Act, including the granting of licenses to sell alcoholic liquor; and it is in connection with the performance of. that duty that this case is before the Court. In fact, the Commission is the only agency in this state which possesses
That the ordinance passed by “The Mayor and Council of Middletown,” is unconstitutional and in violation of Article 13 of the State Constitution;
That paragraph 1 of Section 24 of “The Liquor Control Act,” means only those counties, or subdivisions of a county, created by Article 13 of the State Constitution, to be local option districts, and consequently, the ordinance of “The Mayor and Council of Middletown” is not binding upon “The Delaware Liquor Commission”;
That “The Mayor and Council of Middletown” had no authority to pass such an ordinance.
Section 2 of Article 13 of the Constitution provides that Sussex County shall comprise one district, Kent County shall comprise one district, the city of Wilmington as its corporate limits are or may hereafter be extended, shall comprise one district, and the remaining part of New Castle County, one district. Section 1 of the above mentioned article, provides for the submission by the General Assembly, to the qualified voters of all, or any one, of the districts mentioned in Section 2, the question whether the manufacture and sale of intoxicating liquors shall be licensed or prohibited within the limits thereof. Is the ordi
There is no doubt that the town of Middletown, is located in one of the districts created by Article 13 of the Constitution, but I cannot see that the ordinance under consideration, in any way interferes with or limits the right to submit to vote of the qualified electors of said district, the question mentioned in said article of the Constitution.
The next reason relied upon to show that the Commission erred in refusing to issue the license applied for by Boyer is that Paragraph 1 of Section 24 of “The Liquor Control Act,” in using the words “any county or subdivision thereof,” meant the districts created by Section 2 of Article 13 of the State Constitution. If this contention is correct, the only prohibitory law which would require the Commission to refuse to grant a license, would be one approved by the qualified electors of one of the districts created by Section 2 of Article 13 of the Constitution. With reference to
If it were true that “The Liquor Control Act,” recognized no other subdivisions of the state than those provided for in Section 2 of Article 13 of the Constitution, I would have to admit that the position taken on behalf of the appellant was correct. But an examination of the Act convinces one that other subdivisions of the state are recognized. Paragraph 1 of Section 2 of the Act, recognized the districts created by Section 2 of Article 13 of the Constitution, by providing that when a majority of the qualified electors of any of said districts should vote against license, its application should be suspended therein. Section 14 of the Act, in referring to stores, warehouses and branches thereof which the Commission may have, contains the following pertinent language:
“No such branch shall be established in any County outside of the City of Wilmington or in the City of Wilmington if a law prohibitory of such branch and applying to such County or City is in force, nor in any incorporated city or town whose governing body has, _ by ordinance, enacted that no such branch may be established therein.” Paragraph 2.
This section not only recognizes the subdivision of counties, but also recognizes the subdivision of incorporated towns, such as Middletown. Again in Paragraph 4 of Sec-lion 33 of the Act, the subdivision of Municipal Corporations is recognized, where in specifying the time for closing any hotel, restaurant, club or tavern holding a license for the sale of alcoholic liquor, it is specified that such closing hour may be made earlier in any Municipality by ordinance of the Municipal Corporation. These separate and distinct references in different portions of the Act to the districts created by Article 13 of the Constitution, also to counties and municipalities, is conclusive that the language used in
The last reason to be considered in determining whether the Commission erred in refusing the license is whether “The Mayor and Council of Middletown,” had authority under its charter, to pass an ordinance limiting the alcoholic content of spirituous liquor to be sold on the premises within its corporate limits. The Act of the Legislature incorporating “The Mayor and Council of Middle-town,” is found in Volume 33 of the Laws of Delaware at Chapter 128. This act confers upon the Mayor and Council the same general rights, powers and privileges that are usually granted to Municipal Corporations by the Legislature of this State. Those which have an important bearing on this case are found in Section 3. One under the title of police regulations, being “To make and enforce within said Town such fire, police and other regulations as may be deemed expedient to protect persons and property, maintain the public peace, prevent crimes and promote the public morals.” One under the title of sanitary regulations, being, “To make and enforce sanitary regulations; to define, abate and remove nuisances injurious to the public health or dangerous to the inhabitants of said Town; and to prevent the introduction of infectious or contagious diseases, for which said purpose its jurisdiction shall extend to any point within one mile beyond the limits'of said Town.” And one found in the last paragraph of said Section 3, being:
“To exercise all municipal powers necessary to the proper administration of the municipal government, and for the well-being of the inhabitants of said Town, whether said powers be expressly enumerated herein or not.”
It is contended on behalf of “The Mayor and Council
The principle is well recognized that a municipal corporation is. a legal creation owing its existence to the Legislature. In Volume 43 of Corpus Juris, at page 68, § 3, is found the very clear general comment:
“A municipal corporation is a legal entity or institution, a body corporate and politic, created by the Legislature. It is a creature of the State, a creature of the law, a creature of the Legislature, a creature of the statute. Each municipality is a separate entity. It must be, borne in mind that the modern municipality is not the medieval corporation, called a “franchise,” and given to a_ favored few to promote commerce and guarantee liberty and exemption from royal burdens, but a public institution for self-government and improvement and local administration of the affairs of State.” .
It follows from the above statement, that the power of a municipal corporation is limited as is expressly conferred upon it by the Legislature, or is necessarily or fairly implied as incident thereto or essential for the accomplishment of the purposes expressly declared.
The State of Maryland v. B. & O. R. Co., 3 How. 534, 11 L. Ed. 714; Hunter v. Pittsburgh, 207 U. S. 161, 28 S. Ct. 40, 52 L. Ed. 151; City of Trenton v. State of New Jersey, 262 U. S. 182, 43 S. Ct. 534, 67 L. Ed. 937, 29 A. L. R. 1471; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753; Green County v. Shortell, 116 Ky. 108, 75 S. W. 251; Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Schigley v. City of Waseca, 106 Minn. 94, 118 N. W. 259, 19 L. R. A. (N. S.) 689, 16 Ann. Cas. 169; Whiting v. Town of West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860, 29 Am. St. Rep. 750; Coyle v. McIntire, 7 Houst. (12 Del.) 44, 30 A. 728, 40 Am. St. Rep. 109; State v. Luce, 9 Houst. (14 Del.) 396, 32 A. 1076; Gray v. Wilmington, 2 Marv. (16
The above authorities clearly show that all powers exercised by municipal corporations are derived from the State; consequently whatever police powers they possess are delegated to them by the State. Being governmental agencies it is necessary for them to have such powers as will enable them to perform their governmental functions. There is no doubt that it is generally recognized, that the police powers of municipal corporations are very broad, yet it is also recognized that there are limitations upon them. It is impossible to set up certain standards, by which the validity of an ordinance claimed to have, been passed under the police powers, can be tested. Generally speaking, it especially applies to all - those things which affect the peace, security, health, morals and general welfare of the community.
Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Spear v. Ward, 199 Ala. 105, 74 So. 27; Spencer Sterla Co. v. Memphis, 155 Tenn. 70, 290 S. W. 608; Commonwealth v. Alger, 7 Cush. (Mass.) 53; H. Krumgold & Sons v. Jersey City, 102 N. J. Law 170, 130 A. 635 Consumers’ Co.v.Chicago, 313 Ill. 408, 145 N. E. 114; Van Winkle v. State, 4 Boyce (27 Del.) 578, 91 A. 385, Ann. Cas. 1916 D, 104; Wilmington v. Turk, 14 Del. Ch. 392, 129 A. 512; Gray v. Wilmington, 2 Marv. (16 Del.) 257, 43 A. 94.
In the case of Gray v. Wilmington, above cited, it was held that a provision of the City Charter authorizing the City Council to provide against the adulteration of milk or cream sold in the city, and for its inspection, does not include the right to demand a license as incident thereto.
There is no doubt that the Legislature can by express grant, confer upon municipal corporations, the right to
That the right to limit the alcoholic content of alcoholic or spirituous liquors to be sold and consumed on the same premises with beer, ale or wine; or to be sold for consumption on the premises alone, to ten per cent, of alcohol by volume, is not expressly granted to “The Mayor and Council of Middletown” by its charter, is not denied. Whether it is a necessary incident to the rights which are granted, as herein above enumerated, is a question concerning which Courts might very properly differ. After thoughtful consideration I have arrived at the conclusion that I am not called upon to determine that question. My reason for taking this position is based on the well known principle, that where there is a general law, or an established policy by the State, municipal regulation must not directly or indirectly be repugnant to such general law or policy. In applying this principle to the case before the court, attention should at first be given to the fact that Article 13 of the Constitution provides a method by which the qualified electors of certain districts thereby created, may determine by vote whether the manufacture and sale of intoxicating liquors shall be licensed therein. No limit is placed upon the alcoholic content of the intoxicating liquors to be manufactured and sold if the result of the vote should be favorable. All of. New Castle County outside of the corporate limits of the city of Wilmington was one of the districts created by said section. This district includes the town of Middletown.
The question of whether the manufacture and sale of intoxicating liquors should be licensed in said district was submitted to the vote of the qualified electors of said district on June 2, 1934, when a majority of said electors voted in favor of licensing such manufacture and sale. At the time said question was so submitted to and passed upon by said
“(5) To control the ‘manufacture,’ ‘possession,’ ‘sale’ and ‘delivery’ of ‘alcoholic liquors’ in accordance with the provisions of this Act; and to control the purchase, possession, transportation and ‘sale’ of ‘alcoholic liquors’ by those licensed to ‘manufacture’ or to ‘sell;’
“(6) To grant, to refuse, or to cancel licenses for the ‘manufacture’ or ‘sale’ of ‘alcoholic liquor’ or other licenses in regard thereto, and to transfer any license granted.”
Section 33 fixes the hours during which alcoholic liquors may be sold in hotels, restaurants, clubs and taverns to which licenses have been granted. But in no place does the act limit, or is the Commission authorized to limit, the
“The Liquor Control Act” passed by the General Assembly of 1933, was intended to control the manufacture, distribution, sale and transportation of alcoholic liquor, wines and beer, in those districts created by Article 13 of the Constitution, in which a majority of the qualified electors voted in favor of the manufacture and sale of intoxicating liquor. It conferred upon the “Delaware Liquor Commission” the exclusive right to grant licenses to sell alcoholic liquors, without limit as to the alcoholic content thereof. That is the only kind of a license the Commission has authority to grant.
It is a general law applicable to the whole State, and, therefore, the ordinance adopted by “The Mayor and Council of Middletown,” limiting the alcoholic content of alcoholic or spirituous liquor sold for consumption on the premises, or sold on the same premises where beer, ale or wine is sold for consumption, to ten per cent., of alcohol by volume, is antagonistic thereto, and, consequently, void and of no effect. Thomas v. Richmond, 12 Wall. 349, 20 L. Ed. 453; Ward v. Markstein, 196 Ala. 209, 72 So. 41; Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491; City of Marengo v. Rowland, 263 Ill. 531, 105 N. E. 285; Town of Randolph v. Gee, 199 Iowa 181, 201 N. W. 567; Simrall v. City of Covington, 90 Ky. 444, 14 S. W. 369, 9 L. R. A.
The application of Martin R. Boyer is hereby remanded to the “Delaware Liquor Commission” for further consideration.