264 N.W. 728 | N.D. | 1936
This action was brought to enjoin the defendant the city of Minot from enforcing certain provisions of its ordinance regulating the sale of beer. The case was tried to the court without a jury. Judgment was ordered and entered against the defendant, which thereupon perfected this appeal.
The pertinent facts herein may be stated as follows: Section 8 of the Initiated Measure authorizing the manufacture, sale, and distribution of beer, approved September 22, 1933, see page 495, et seq., Sess. Laws 1935, as amended by chapter
"There is hereby conferred upon the governing bodies of each incorporated city and village the authority to require licenses from retailers of beer in such village or city, and to license, and to deny and revoke licenses for cause, and to regulate the business of vendors at retail of beer authorized to be sold by this act, in their respective jurisdictions, subject to review by the courts of the state, to impose and collect a license fee therefor, and to provide for the punishment of any violation of any such regulations, according to the provisions of law, excepting that such regulations shall be uniform, and that all applicants for license, who are qualified under § 2 of this act, shall be granted licenses by said municipalities.
"There is hereby conferred upon the board of county commissioners of each county the same powers and authority as are herein granted to the governing boards of incorporated cities and villages, relative to the retailing of beer in all territory outside of incorporated cities and villages. . . ."
Pursuant to the provisions of this section of the Initiated Measure, the defendant city of Minot in October, 1933, enacted an ordinance providing for four classes of beer licenses, to wit: Class A, licensing the holders thereof to sell beer at retail for consumption, either on or off the premises where sold, and fixing the annual license charge therefor at $200; class C, licensing the holders thereof to sell bottled beer at retail to be consumed on the premises where sold, and fixing the license charge at $25; class D, licensing the holders thereof *254 to sell bottled beer at retail, to be consumed on or off the premises where sold, and fixing the license charge at $100. The record is silent as to class B licenses. The ordinance further prohibits the sale of beer on Sundays after two a.m. Pursuant to the provisions of this ordinance, during the year beginning July 1, 1934, 42 class A licenses, 2 class C licenses, and 3 class D licenses were issued. The license fees therefor aggregated $8,750. The number of applicants for licenses for the year beginning July 1, 1935, is about the same as the number of those who applied for licenses for the year beginning July 1, 1934. During the year beginning July 1, 1934, the cost of operating the police department of the city of Minot was about $1100 greater than for the year immediately prior to the taking effect of the ordinance in question. During the same period the aggregate cost of operating all departments of the city government was materially decreased. The record discloses that subsequent to the time when the ordinance went into effect and licenses for the sale of beer were issued, greater police supervision was required and the police force was increased by the addition of two policemen; that there was a greater number of people on the streets between the hours of ten p.m. and two a.m. than before the ordinance went into effect, and that there were more intoxicated people on the streets than before the ordinance became effective; that the higher the license fee is, the better the class of men is who go into the beer business; that if beer license charges be reduced appreciably the number engaged in the selling of beer has a tendency to increase; that as the number of places where beer is sold increases, the difficulty and expense of supervision increases.
The plaintiffs are the holders of class A licenses. They challenge the ordinance in question on the ground that the license fee prescribed is exorbitant and unreasonable and that the ordinance in effect is a revenue measure rather than a regulatory measure; that under the terms of the initiated measure, the sale of beer is no longer prescribed and that the city authorities have no right to prohibit the same on Sundays.
The foundation on which the plaintiffs ground their position is that beer permitted to be sold under the initiated measure, supra, is not intoxicating, and therefore the business of selling beer must be regarded and treated the same as any other useful and harmless business or occupation, *255 so any license fee imposed must not appreciably exceed in amount the cost of reasonably regulating the business. That in fact the license charges imposed by the ordinance in question are so disproportionate to the regulatory costs that the license provision is in effect a revenue measure beyond the power of the city to enact; that under the general statutes of the state beer may be sold on Sunday.
On the other hand, the defendant city of Minot insists that the license provision of the ordinance is not a revenue measure; that under the provisions of the initiated measure, supra, the city is empowered to regulate and license the selling of beer; that the license fee imposed is not so greatly disproportionate to the cost of such regulation as to invalidate the measure; that, in any event, the business of selling beer is one that concerns the public morals and the public welfare and that the city has the right to restrict the number and determine the character of those engaged in the business by the imposition of license charges greater than the actual cost of mere supervision and regulation; that if as an incident revenue results, the ordinance is not thereby invalidated; that as a matter of regulation the city has the right to wholly prohibit the sale of beer on Sunday.
By Article 20 of the Constitution of North Dakota, adopted when the state was admitted to the Union in 1889, the manufacture and sale of intoxicating liquor was proscribed and the legislature was directed to enact legislation putting the article into effect. See State ex rel. Ohlquist v. Swan,
On oral argument, counsel for the plaintiffs strenuously urged that the beer permitted to be sold under the provisions of the initiated measure is in fact non-intoxicating. What the fact in that regard may be — and its non-intoxicating character is not conceded — is wholly immaterial in this litigation. It is sufficient to say that the law-making body has seen fit to declare that beer is intoxicating. See § 10105, supra; State v. Fargo Bottling Works Company, supra. See also in this connection, Purity Extract Tonic Co. v. Lynch,
It is true the rule is, as contended by the plaintiffs, that a purely regulatory exaction imposed on a legitimate and useful business or occupation, cannot be sustained if it result in a return unreasonably disproportionate to the cost of regulation. See Goer v. Taylor,
But the plaintiffs insist that the initiated measure, as amended, which delegates to municipal authorities the power to regulate the sale of beer and to fix and collect license charges therefor, provides that the action of such authorities in that behalf is subject to review by the courts, and that accordingly the reasonableness of the license charges imposed by the ordinance here in question is subject to judicial review. With this we cannot agree. Even though that clause in the measure providing for a review by the courts be as broad as plaintiffs contend, it cannot have the effect for which they contend. The provision in question is interpolated in the midst of the first paragraph of Section 8. Giving the words of the whole paragraph their ordinary meaning, this *260 provision can apply only to those portions thereof which precede it. By no reasonable construction can it be said that the clause empowering municipal authorities "to impose and collect" a license fee is at all affected by the clause providing for a review. The position in the paragraph of this latter clause weighs against rather than in favor of the plaintiffs' contention.
The plaintiffs further contend that the ordinance here challenged is invalid for the reason that it prohibits the sale of beer on Sundays after two o'clock a.m. In this behalf they rely upon the rule that in the exercise of authority delegated by the legislature a municipality cannot enact an ordinance contrary to the provisions of general statutory enactments. See Power v. Nordstrom,
In view of what we have said above the judgment must be reversed and the action dismissed. It is so ordered.
*261BURKE, Ch. J., and MORRIS, CHRISTIANSON and BURR, JJ., concur.