Ex Parte NASH
No. 3029
Supreme Court of Nevada
November 3, 1933
26 P. (2d) 353
Other points are made, but, in view of the fact that the judgment and order must be reversed for insufficiency of evidence to sustain them, we need not consider the other points.
It is ordered that the judgment and order appealed from be reversed, and that the district court еnter a decree finding that the allegations of extreme cruelty alleged in the complaint are untrue, and enter a decree in favor of the defendant, with costs in bоth courts.
By the Court, SANDERS, C. J.:
This is an original proceeding in habeas corpus. The matter is before the court upon the petition for the writ and the return made thereto. The undisputed facts are as follows:
The Schramm-Johnson Company owns and conducts a drug store or pharmacy in the city of Reno. In addition to its usual stock in trade, the company deals in cigarettes. Fred P. Nash, presumably a registered pharmacist, is the manager in charge of the business of the company. During the month of June last the common council of the city of Reno adopted an ordinance which prohibits and makes it a misdemeanor for any person, firm, association, or corporation to keep, sell, or othеrwise dispose of cigarettes in any place of business within the city of Reno where narcotic drugs or poisonous drugs or concoctions or mixtures thereof are kеpt for sale or otherwise disposed of. The ordinance is exceptional, in that it purports to give the reason or the occasion for the enactment, stated in its preamble to be as follows:
“Whereas, cigarettes containing narcotic and poisonous drugs are being sold and distributed within the City of Reno; and
“Whereas, the handling of сigarettes in places where narcotic and poisonous drugs or concoctions or mixtures thereof are also handled makes readily possible the addition of such narcotic or poisonous drugs or concoctions or mixtures thereof to cigarettes, and more readily enables the sale and disposal of said cigarettes containing
said narcotic or poisonous drugs or concoctions or mixtures thereof, and thereby endangers the health, comfort, safety, life and welfare of the inhabitants of the City of Reno: “Now, therefore, * * *”
While the ordinance was in force, Fred P. Nash, the manager in charge of the business of the Schramm-Johnson Company, did sell and offer for sale cigarettes. A complaint was filed in the justice‘s court of the city of Reno charging him with the violation of the ordinance. Upon the filing of said complaint a warrant for his arrest wаs issued and served. While in custody Fred P. Nash filed a petition in this court for a writ of habeas corpus to issue, claiming that the only pretext for his arrest and detention was his admitted violation of said ordinance, which he alleged deprives him of his liberty and property without due process of law, in contravention of the
1. The ordinance is assailed upon practically all of the grounds common to legislation which in any manner interferes with private business or lawful occupations. The difficulty with the argument is that the petitioner‘s business and employment continues uninterrupted after, as before, the еnactment. In point of fact, the ordinance deals with but a relatively small feature of the business, namely, that of cigarettes, which, in point of law, like the business itself, is clearly within thе scope of the police power.
The petitioner argues that his is a lawful business and occupation and to deprive him of the right to deal in cigarettes as an article of trade is an unreasonable, arbitrary, and capricious restraint on his liberty.
2-5. That a city ordinance or police regulation forbids acts theretoforе innocent and lawful affords no
6-9. It is argued on behalf of the petitioner that there is no fact present in the ordinance itself оr in the record to justify making it a crime for one class of merchants to deal in cigarettes and not to make it a crime for other dealers engaged in the same business. The ordinance supplies a reason for the discrimination, namely, that the handling of cigarettes in places where narcotic and poisonous drugs are sold or othеrwise disposed of makes readily possible the addition of such drugs to cigarettes and more readily enables the sale and disposal of cigarettes containing such drugs. The learned counsel for the petitioner insists that in view of the evil found to exist the reason assigned for the prohibitive feature of the ordinance is whimsical, fanciful, conjеctural, illusory, and palpably arbitrary and discriminatory. In answer to these objections we quote from the case of Rast v. Van Deman & Lewis Co., 240 U. S. 357, 36 S. Ct. 370, 374, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455:
“The legislation which regards the differencе is not arbitrary within the rulings of the cases. It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be
assumed. * * * It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. * * *” “It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury, but obstacles to a greater public welfare.”
No principle of the constitution of the United States or of the State of Nevada being violated by the enactment of the ordinance, it is ordered that the writ be and it is discharged, and that the petitioner be and he is remanded to the custody оf the chief of police of the city of Reno.
DUCKER, J.: I concur.
COLEMAN, J., concurring:
The inquiry in this matter is limited to a determination of whether or not the ordinance in question is violative of the
While the ordinance in question goes to a great length in holding that a certain class of business men, usually of a splendid type, are morе likely to indulge in a vicious practice to cater to a class of people with an abnormal, debased appetite, plus a weak mind, in dealing with certain drugs within themselves criminal to handle at all except pursuant to rigid restrictions, than certain other classes of business men, there are certain presumptions of law in favor оf the legislative action of every legislative body, however questionable such action may be in certain instances, which we cannot ignore. For instance, we must presume that every legislative act is constitutional; that every ordinance is adopted in good faith. We must, as a general rule, presume that legislative action is based upon an inquiry into the
It is a well-recognized rule that a lеgislative body cannot, in the exercise of its police power, arbitrarily interfere with private business; but its determination as to what is a proper exercise of such рower will not be overthrown by the courts unless it clearly appears that its determination has been arbitrarily or unreasonably exercised. Dobbins v. Los Angeles, 195 U. S. 223, 25 S. Ct. 18, 49 L. Ed. 169; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 30 S. Ct. 301, 54 L. Ed. 515.
I cannot say that it clearly appears that the city council of the city of Reno, in adopting the ordinance in question, acted either arbitrarily or unreasonably.