delivered the opinion of the Court.
For the purpose of obtaining a license to operate a retail whiskey store at Berry Hill, a municipality in Davidson County with a population of 1246, Landman requested the proper municipal officials of that town to issue him a certificate of good
“no more than one license shall be issued for each ‘5,000 persons, or any fractiоn thereof, residing in the City of Berry Hill, by Federal Census of 1950, or any subsequent Federal Census. ”
Landman then apрlied in the manner provided by Section 6648.14 of the Code Supplement to the State Commissioner оf Finance and Taxation for a license to operate this liquor store, notwithstanding his failure to obtain a certificate of good moral character. The commissioner refused thе application because of the aforesaid ordinance. Pursuant to the remedy рrovided by Section 6648.17 (10) Landman then filed his common-law writ of certiorari in the Circuit Court on the theory that the Commissioner had acted arbitrarily and illegally in denying his application. The Circuit Court denied thе petition, and from its action in so doing Landman has appealed.
'Landman’s charge of аrbitrary and illegal action upon the part of the commissioner is based upon the insistence that the ordinance in question violates Article I, Section 22 of the Constitution forbidding the creation of a monopoly. In support of that insistence reference is made in behalf of Landman to the Canadian case of Terry v. The Municipality of the Township of Haldiman, decided in 1858, wherein it was held that the power given to the municiрality to limit the number of inns and shops where liquor might be sold “was not fairly exercised by alio wing-only one Inn аnd one shop ’ ’, and created a monopoly. No other case so holding is cited, or hаs been found.
Counsel is proceeding from an erroneous premise in comparing the ordinаnce in question with an imaginary one prohibiting the sale of bread in Berry Hill by more than one persоn. The sale of bread is an ordinary, natural and lawful business in which anyone has a right to engage. The sale of whiskey is illegal without the grant of a special privilege from the state or other authоrized sovereign such as a municipality. Without such permit its sale is a violation of law.
The health, safety and morals of the people require the most stringent regulation of the liquor traffic. It is, therеfore, in the exercise of the police power that such regulating statutes and ordinanсes are enacted. If in the exercise of such police power an incidental mоnopoly happens to be created, it is not one which offends the antimonopoly clause of our Constitution, if the actual and real tendency of such ordinance or statute is to effect the purpose of protecting the safety, health and morals of the public. Checker Cab Co. v. Johnson City,
A limitаtion upon the number of . liquor stores which may be maintained in a municipality is generally recognized as a necessity which the welfare of the people requires. As a practical mаtter, such limitation has a tendency to accomplish that which is monopolistic in that only the few to whom the permit has been issued can engage in that business in that town. It has never been held, however, insofar as we know, that a statute or ordinance so limiting the number offends the anti-monopoly clause of our Constitution. In State ex rel. v. Mayor and Aldermen of Dyersburg,
The case at bar differs from the Dyersburg case only as to the number of stores permitted in proportion to the population. The differencе is not such as to enable the Court to say that the Berry Hill ordinance is manifestly unreasonable аnd arbitrary. The instant case is, therefore, controlled by the Dyersburg case and requires an uphоlding of the Berry Hill ordinance.
The judgment of the Circuit Court will he affirmed.