184 So. 153 | Miss. | 1938
Lead Opinion
The appellant O.J. Ford, filed a petition for a writ of prohibition against Geo. Easterling, Justice of the Peace of District No. 5 of Jones county, the members of the Board of Supervisors of the county, and C.H. Thompson, *579 Sheriff, alleging that the Board of Supervisors passed an order or ordinance reciting that certain territory in the unincorporated village of Moselle was "a residential section in which are located several churches, and that it will promote the public health, morals and safety for the hereinafter described territory to be zoned against the sale of beer so as to prohibit the sale of said beer within said territory. It is hereby ordered and 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 judicial district of Jones county, Mississippi, to wit: All that territory at Moselle, First District, Jones county, Mississippi, which lies within 1500 feet of any school or church."
The petitioner alleged that he was engaged in the sale of beer in the business district of the town of Moselle, an unincorporated village of 204 inhabitants — larger than some incorporated towns — and which has been in existence for more than forty years; that the town has a main street facing the east or business section, running approximately north and south; that east of Main street and parallel thereto, or approximately so, is the N.O. N.E. Railroad tracks, with its depot; that farther east of the railroad, and facing west, is a church; that the town of Moselle is not a rural area; that this church is situated on the outskirts of the town; that Main street has been recognized for many years as the business district of said town, being so regarded long before the church, east of the business section, was built; that the said town was laid off in business and residential districts, each separate from the other; that petitioner's place of business is located near the center of Main street, which is the only business street in the town, and about 250 yards by direct line from the nearest church, and about 1200 to 1400 feet from it by the usual and ordinary passway used in going to and from the church. Petitioner states that religious services are held only *580 once a month, and is in nowise interferred with by his place of business; that there are other places of business nearer the particular church than his; that his place is not in the residential section of the town, there being no residences between the business houses on Main street, and the depot is between his place and the church; and that he has at all times conducted his business in a decent and legal manner, at no time allowing any disturbances or any boisterous conduct; that it in nowise interferred with services or worship at any of the churches or schools of the town, and is not a menace to the morals or health of the community. The petitioner further alleged that should he move his place of business out of the business district of Moselle, he would either have to move into the residential section, or go out of business altogether; that there was no part of the business section of the town which was not within 1500 feet of the church. He alleged that the sale of beer had been recognized in the state, that it is a valid business, that the order of the Board of Supervisors is unreasonable, arbitrary, oppressive and confiscatory, and that its enforcement will result in the destruction of his business and property, and deprive him of his liberty and right to make a living without due process of law, contrary to the provisions of section 14 of the Constitution of Mississippi, and that he has no adequate or ordinary remedy at law, etc.; and prayed for a writ of prohibition to issue.
The ordinance in question was made an exhibit to the petition. The Circuit Judge directed process to issue for a hearing before him as to why the writ of prohibition should not be issued as prayed, and the petition was demurred to by the district attorney and the attorney for the Board of Supervisors on the ground that the writ of prohibition does not apply to the Board of Supervisors, in taking the step alleged in the petition; and that the prayer of the petition attempts to restrain the Board of Supervisors from performing an act which is *581 without its jurisdiction, and which has not been attempted by the Board. The district attorney's demurrer is on the ground that the writ was returnable in vacation, and not in term time.
On an amended petition filed by the petitioner on leave of the Judge, it was alleged that the church nearest the place of business of the plaintiff was a distance of 846 feet therefrom on a straight line, the nearest traveled way being 966 feet. The amended petition further alleges that the town was properly policed at the time, a deputy sheriff residing in that vicinity, and being about the town every day; while in the district were two justices of the peace; that Moselle is in a law-abiding section, and that plaintiff has conducted his business in a legal and decorous manner, cooperating with the law-enforcement officers.
On the hearing before the Circuit Judge the latter denied the writ of prohibition as to the justice of the peace, and sustained the demurrer as to the Board of Supervisors and Sheriff, granting an appeal with supersedeas to this Court.
The Legislature in 1934 passed an act, chapter 171, Laws of 1934, Regular Session, which was entitled, "An Act to authorize the transportation, storage, sale, distribution, possession, receipt, and/or manufacture of light wines and beer; to provide the manner in which counties may prohibit such traffic; to regulate the manufacture, distribution, sale, and transportation within the state of Mississippi of light wines and beer; and for other purposes."
By section 18 of this chapter it is provided 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 *582 and regulations as to territory outside of municipalities as are herein provided for municipalities."
Section 22 of the act provides that: "(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, 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 stated by the appellant that the suit does not challenge the constitutionality of the provisions cited, or of the act, but that it is based upon the proposition that the ordinances are unreasonable, and therefore void. In the case of Alexander v. Graves, J.P.,
The question for consideration here, therefore, is whether the ordinance is unreasonable in the sense that it would constitute an arbitrary regulation contrary to due process of law under section 14 of the state Constitution, and the Fourteenth Amendment to the Constitution of the United States, U.S.C.A. Const. Amend. 14.
It is suggested here that the appellant's place of business, where he sold beer, was not in proximity to the church, the distance being given in the statement of facts above; and that it would be unreasonable to prohibit the sale of beer at a point so remote from the church as the distance shown in the petition. In considering the question of reasonableness, we may take into consideration the nature and character of the business sought to be controlled or regulated or prohibited, and the legislative action in reference to such matters heretofore enacted. It seems to be conceded that the Legislature itself could have prohibited the sale within the distance prescribed, the idea seeming to be that it could not delegate that power to the Board of Supervisors, being only able to delegate to the Board powers to be reasonably exercised.
In the act of the Legislature of 1884, at page 200, chapter 182, it was provided that it should be unlawful for any person to make, sell or give away in the city of Corinth, or within five miles of the Alcorn county courthouse, any spirituous, vinous, malt or intoxicating liquors of any kind, or mixtures thereof, except as thereinafter described in the act. The exceptions, giving the right to use wines for sacramental purposes, or in dispensing hospitality, or for persons to manufacture wine from grapes or berries; also for its use by a licensed practicing physician in treatment of patients.
By chapter 183, Laws of 1884, it was provided that it should be unlawful for any person or persons to make, sell, barter, give away, or in any manner dispose of vinous, spirituous or malt liquors or bitters that intoxicate, within five miles of the Masonic hall in the town of Kossuth *584 in Alcorn county, etc., making exceptions of wines made from domestic grapes, and the right of physicians to use liquors for medicinal purposes.
On page 202 of the Laws of 1884, in chapter 184, it is provided that it shall be unlawful for any person to sell, give away or dispose of, in any way, vinous, spirituous or malt liquors within that portion of the second supervisors' district of Alcorn county, "north of a line running east and west, one mile south of, and parallel to the Memphis Charleston Railroad, in said district," excepting certain uses as already set out.
On page 203, chapter 185 of this act provides that it should be unlawful for any person to sell, give away or dispose of in any way, any intoxicating liquor in the town of Sarepta, Calhoun county, Mississippi, and within three miles thereof, but excepts physicians from such provisions, when prescribing for patients.
By chapter 186, on page 204, Laws of 1884, the sale of such liquors was prohibited within the corporate limits of Black Hawk in Carroll county, or within five miles thereof, amending the act of March 22, 1871; and also chapter 187, Laws of 1884, likewise prohibiting such sales in Clarke county. By the next chapter (188) the Legislature prohibits the sale and disposition or giving away of intoxicating liquors in Copiah county, and the next chapter (189), on page 207, makes it unlawful for any person to sell or give away intoxicating liquors in the town of Houston in Chickasaw county, or within three miles thereof, making an exception of physicians.
Likewise, in 1882 the Legislature, in chapter 508, provided that the giving away or selling of any intoxicating liquors, and especially any of the preparations known as bitters, by whatever name, or in any quantity, within three and a half miles of Oak Grove in Chickasaw county, is unlawful. And by chapter 510, laws of 1882, it was provided that it should be unlawful for any person to sell, barter, give away, etc., for any purpose whatever, any intoxicating liquors, whether vinous, *585 spirituous or malt, any bitters, or Jamaica Ginger if intoxicating, in any quantity within supervisor's district No. 1 of Calhoun county, or in the town of Benela in said county, or within five miles of said town; or in the town of Oakland in Yalobusha county, or within three and a half miles thereof, etc.
These acts show that the Legislature, in dealing with intoxicating liquors, do not consider it unreasonable to prohibit the sale, or disposition in any way, of intoxicating liquor within five miles of a given point. So far as reasonableness is concerned, we can see no difference in its being dealt with by the Legislature, and in their authorizing the Board of Supervisors to do so. If it is reasonable in one case it would appear to be reasonable in the other.
In Rohrbacher v. Mayor, etc., of City of Jackson,
In the case of Reed Co. v. Beall,
In the case of Moore v. State,
In Ex Parte Fritz,
In Schulherr v. Bordeaux, Sheriff,
It is therefore clearly established that the legislature may make the sale of liquors, intoxicating in their nature, dependent upon the will of a particular locality; and the determination of the will of that locality may either be confided to the people themselves, or to officers elected by them, in whose judgment the legislature reposes confidence. Boards of Supervisors are generally selected as being men of character and judgment; and it would not be unreasonable to vest in such board the exercise of judgment and discretion in regard to the subject here involved. In dealing with such matters as intoxicating liquors, lotteries, gambling houses, and other things affecting the public morals, health or safety, the Legislature has a wide discretion in framing laws to deal therewith.
In Purity, etc., Co. v. Lynch,
In State v. Phillip,
In discussing the act and its relation to prohibition of the sale of intoxicating liquors, Judge SAM C. COOK reviewed the authorities on the subject, especially with reference to the policy of the state in prohibiting such sale; in the course of his opinion he said (referring to Eidge v. City of Bessemer,
In passing on the law here involved, chapter 171, Laws of 1934, in relation to the policy of the state in regard *591 to the sale of beer and light wines, the Legislature recognized that there were communities where such sale or disposition of such liquors would or might be harmful to the peace, order and morals of the community, as well as the safety of persons in and around such places.
In the first place, it gave to the people of the entire county the right to vote the sale of liquor out of the county under conditions therein set down, regardless of the wish or attitude of the Board of Supervisors. It is recognized that in some counties the sale of intoxicating liquors would be unsatisfactory, and would interfere with the lives and habits, the morals and safety of the people in such communities. But it does not stop there, — it confers upon the authorities of the municipalities, and the Boards of Supervisors outside of municipal corporations in counties, the right to deal with the subject so as to preserve or promote public health, morals and safety, leaving to the judgment of the Board of Supervisors, without prescribing any conditions precedent to the exercise of that power, the decision in regard to the establishment of zones in rural areas in which the sale of liquor shall be prohibited for the good of the community.
In clause (b) of section 22 of the act, it gave the power to municipalities, and to Boards of Supervisors as to rural districts, to designate in what territory surrounding churches and schools in municipalities or in the counties, as the case may be, wines and beer shall not be sold or consumed. We find in the case before us an unincorporated village or town of 204 inhabitants, with churches and schools in the community; and the Board, for reasons satisfactory to themselves, determined, in the exercise of legislative power conferred upon them, to zone territories in the community around churches and schools. In considering the reasonableness of such an ordinance, the fact that such liquors, if drunk to excess, will intoxicate, and that intoxicated persons frequently become a menace to the safety of the public, must be *592 noted. Intoxication itself is an evil, long recognized by reasonable people as tending to undermine moral responsibility, and to promote immorality generally.
The distance prescribed by the zoning ordinance in this instance was one thousand five hundred feet. It is well known that the voices of intoxicated persons are frequently heard at greater distances than here indicated; and that intoxicated persons frequently become reckless and irresponsible, boisterous and violent. They could easily go to the church or school nearby while in that condition, and seriously disturb services in the church, or the operation of the school. It is well known that many persons, reasonable men and women, regard churches, even the buildings used for worship, as being entitled to greater peace and reverence than are ordinary buildings. Many people seek opportunity for prayer and reflection in churches at other times than for religious services, going there for quiet in which to secure the consolations of religion. The preservation of the tranquillity of such places becomes a matter of public interest, and is entitled to the protection of law when, in the judgment of the Legislature, it becomes necessary to protect the right of citizens to seek sanctuary in the church for purposes of reflection, prayer and study. It cannot be said that the law and the ordinance here involved have no reasonable relation to the peace, morals and safety of the public. As said in Alexander v. Graves, supra, under modern conditions people travel from place to place in highpowered automobiles, frequently at high speed, upon the highway, and intoxication, even to a slight degree, disturbs the judgment and vision of the drivers of such automobiles, rendering them highly dangerous; people, especially those who seek the bubble of joy and the cup of folly, go long distances to drink stands where intoxicating or stimulating liquors may be had, frequently indulging to excess. The question is not limited to whether the seller of such liquors preserves order on his own premises, and conducts his *593 business so as to avoid violation of the law. The location of the business is inviting to those in search of intoxicating liquors. It must be assumed that reasonable men can reasonably conclude that villages and towns, unincorporated and without police protection, should not be subjected to the hazard of being annoyed and endangered by the sale of such liquors.
We are therefore of the opinion that the Circuit Judge was correct in refusing to grant the writ of prohibition against the Justice of the Peace; and was eminently correct in sustaining the demurrer as to the Sheriff and Board of Supervisors. The judgment is therefore affirmed.
Affirmed.
Dissenting Opinion
Dissenting Opinion
In my judgment, the laws respecting intoxicating liquors or beverages should be interpreted and administered under the same established rules which appertain to similar legal issues under the laws dealing with other subjects. So far as I know, it may be a fact that every judge of this Court would be glad to see the day when, as an actuality, not a drop of such liquors or beverages could or would be sold or consumed in this State for any purpose or on any occasion whatsoever. But this is no more reason for overstraining the established principles of the law to further what may be thought to be in the interest of prohibition, than to do the reverse if we entertained the opposite views on the general question. It has been the constant argument or reproach by those who oppose the sale or use of any kind of intoxicating liquors or beverages that if those on the opposite side be given an inch under the law they will take an ell. It is important, therefore, that those who are on the side which has thus cast this reproach should not themselves be subject to that same observation, — taking an ell when given an inch.
It is an established principle of the law, secured by constitutional requirements, that when inferior boards, such as aldermen or supervisors, are authorized to enact orders or ordinances, legislative in character, such as here involved, the orders or ordinances must conform to substantial reason, — there must be a substantially reasonable relation between the objects to be accomplished and the facts which form the basis for the action taken. *595 Here, there is within the ordered zone only one church, and therein, according to the record, services are held only once a month; nevertheless it is declared that this is a sufficient factual basis for the prohibition for all the remaining twenty-nine days. The mere statement speaks for itself, — an inch is allowed by the law and an ell has been taken by those in authority under it.
Dissenting Opinion
The reasonableness of the ordinance is for the Courts to determine. In my opinion, the one involved is manifestly unreasonable and therefore void. The Board could have just as reasonably zoned the whole County into a prohibition territory, and thereby held for naught the statute permitting the sale of beer in the County.