On February 8, 1963, Safeway Stores, Inc., filed an application with the Nebraska Liquor Control Commis *819 sion, for a “Beer Off Sale Only” license to engage in the sale of beer at 2924 Leavenworth Street in Omaha. The application was referred to the city council of Omaha, as the statute requires, and on February 19, 1963, the city council recommended to the commission that the application be granted. On March 7, 1963, the chief enforcement officer of the commission protested the grant of the application on the ground that the applicant already had more than two such licenses and that L.B. 105, Laws 1963, c. 308, p. 909 (now sections 53-124.02 to 53-124.07, R. S. Supp., 1963), made the applicant ineligible for further licenses. The commission sustained the protest of the chief enforcement officer and denied the application. On appeal to the district court for Lancaster County, the denial of the application was sustained. Safeway Stores, Inc., thereupon perfected its appeal to this court.
The parties stipulated that Safeway Stores, Inc., had all the qualifications for the granting of a license to it except for the restrictions contained in L.B. 105. It was further stipulated that Safeway was the holder of 10 “Beer Off Sale Only” licenses and one package liquor license on the date of the filing of the application herein. The evidence taken before the commission was also stipulated as evidence in the district court. The sole question is the constitutionality of L.B. 105. In this connection it was stipulated that L.B. 105 was passed on February 26, 1963, with the emergency clause attached, and was signed by the Governor on March 4, 1963. It was further stipulated that the chief enforcement officer filed his protest on March 7, 1963, and that the order of the commission denying the application was rendered on March 22, 1963.
The plaintiff contends that the act discriminates between hotels having more than 25 sleeping rooms, and other types of business in the same class, and, in addition thereto, that it discriminates between members of the same class in that it provides a different application *820 .as between hotels containing 25 sleeping rooms and those containing less than 25.
The general rule as to classification for purposes of legislation has been stated many times by this court to be as follows: “The rule established by the authorities is that while it is competent for the legislature to classify, the classification, to be valid, must rest on some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects classified.” State ex rel. Dawson County v. Farmers & Merchants Irr. Co.,
The Legislature has broad powers in the regulation and control of the sale and dispensing of alcoholic liquors. The statute before us is not a revenue law. Its purpose is the regulation and control of the liquor traffic and, as such, is in a somewhat different position than in the ordinary exercise of the police power for the protection of the health, safety, morals, and welfare of the public. But even so, justification for classification must exist; arbitrary treatment cannot be sustained. It is not always fatal for the Legislature to exempt certain members of a class from the operation of an act applicable to the whole class. In State ex rel. Meyer v. Knutson,
In the United States Cold Storage Corp. case the court was dealing with a taxation matter. All property in the warehouse was taxable. We held that the exclusion of household goods under a taxation statute, without any justifiable reason for its exclusion, was arbitrary and unreasonable, and lacking in uniformity of taxation. In the Knutson case we were dealing with a statute providing for the licensing of architects. The Legislature in determining the scope of the act exempted certain members of the class from the operation of the act. As an example, it excluded architects from the licensing provisions who were engaged in construction work for themselves on buildings of limited size and cost. Such exemptions were held to be reasonable and not in violation of the rule of uniformity as to class.
In the case before us the Legislature has broad powers in the regulation and control of the liquor traffic. Allen v. Nebraska Liquor Control Commission,
ante
p. 767,
The primary issue is whether or not justification exists for exempting hotels with more than 25 sleeping rooms from the limitation of two licenses per person, contained in the act. The hotel is associated with the traveling public seeking a place where it might find lodging, food, and refreshment. The sale of alcoholic beverages is traditionally a part of the hotel business. The cocktail, the drink during the meal, the after-dinner drink, and the nightcap in the room are matters which the Legislature may consider, none of which are ordinarily associated with the chain-store operator. The chain-store operator with his ability to purchase in quantity and undersell the individual small liquor store retail operator can well produce conditions against the public interest in his competition with the small-store operator. Protection of the small package liquor licensee against the competition of multiple licensed operators is in the public interest. It is the province of the Legislature in mitigating the evils of competition between small retail operators and chain stores to so regulate in the public interest. The uncontrolled tendency toward monopoly, or at least the tendency to concentrate liquor licenses • in the hands of a few, is a proper subject of legislation. The hotel has such differences in the operation of its business from that of the chain store that the basis exists for its exclusion from the limitation of two licenses per person. The exemption of present holders of multiple licenses from the limitation of the number of licenses in the hands of a single entity is also a reasonable one which the Legislature in its wisdom may grant or refuse. The applicable rule is stated in State ex rel. Meyer v. Knutson, supra.
In a similar case the court in Grand Union Co. v. Sills, 43 N. J. 390,
We necessarily conclude that the exemption of hotels having more than 25 sleeping rooms from section 2 of the act, now section 53-124.03, R. S. Supp., 1963, is justified on a reasonable basis and it cannot have the effect of nullifying L.B. 105. Nor is the statute unconstitutional in limiting any one person or entity to two licenses.
It is contended that section 2 of L.B. 105 is unconstitutional in limiting hotels with no more than 25 rooms to two licenses while hotels with more than 25 rooms are exempted from the two license limitation. There is authority that Safeway Stores, Inc., is in no position to raise this issue in that the asserted discrimination affects only hotels with 25 sleeping rooms or less. Griffin v. Gass,
In the State of Washington the question arose as to whether or not an act excluding short-order restaurants from eligibility for a liquor licehse was discriminatory when all other restaurants were eligible. The court said: “The appellants claim that initiative 171 discriminates in favor of the operator of a restaurant as that term is defined and limited therein, in that the operator of what is referred to as a ‘short order’ restaurant is not eligible to secure a class H license. Again bearing in mind the plenary power of the state over the dispensing of intociating liquor and its authority to make such classifications as it deems proper as to the places where such intoxicating liquors may be dispensed and consumed, we are of the opinion that the distinction made in the definition of the term ‘restaurant’ is one the lawmakers might lawfully draw. If the citation of adjudicated authority is deemed necessary, we refer to Guillara v. Liquor Control Comm.,
In another similar case the court said: “It will be noted that the section in question, above set forth, expressly excludes hotels from its operation. Appellants claim that such exclusion renders the statute discriminatory and amounts to- a denial of the equal protection of the laws, * * *. Every reasonable intendment must be resolved in favor of the validity of the action of the legislature. It must be assumed that as a result of its consideration of the subject matter that body reached the conclusion that the restrictive provisions of section 26c were not necessary or practicable, insofar as hotels
*825
were concerned.” Beacon Club v. Kalamazoo County Sheriff,
It is urged that section 1 of L.B. 105, now section 53-124.02, R. S. Supp., 1963, is not an attempt to limit the number of liquor licenses one person may hold, but rather an attempt to limit the number of additional licenses one person may acquire after the passage of the act. The act provides that no person, except as provided in the act, shall acquire an interest in more than a total of two alcoholic beverage retail licenses. The language is plain in indicating the legislative intent to limit the number of licenses to two, except that holders of multiple licenses at the time of the adoption of L.B. 105 will not be required to divest themselves of such licenses. This same question was before the Supreme Court of New Jersey on an act which appears to have been the source of the Nebraska law. That court said: “We are satisfied that the statute may not properly be stricken on the ground of vagueness; on the contrary, the legislative language may, within settled principles of statutory construction, readily be interpreted to effectuate the basic goal of the Legislature as it clearly appears from the history and context of the legislation. * * * There must be sensible rather than literal interpretation. * * * Notwithstanding its somewhat awkward terminology, section 1 is to be read as limiting the holding of retail liquor licenses to two per person, without, however, disturbing existing multiple holdings and their renewal.” Grand Union Co. v. Sills, supra.
Section 5 of the act, now section 53-124.06, R. S. Supp., 1963, deals with the rights of persons having a beneficial interest in a liquor license to hold or acquire shares of stock in a corporation which are traded on a national security exchange or regularly traded in an over-the-counter market by a national securities association. The trial court held section 5 to be unconstitutional as being vague, indefinite, and uncertain. It also found that section 5 was not an inducement to the passage of the act and *826 that the valid portions of the act remained as enforcible legislation. Safeway Stores, Inc., contends that the declaration of unconstitutionality of section 5 has the effect of invalidating the whole of L.B. 105.
A mere reading of section 5 shows that it is vague, indefinite, and uncertain. L.B. 105 provides penalties for its violation, including section 5. The meaning, of this section leaves one in complete darkness as to what constitutes a criminal violation of the act. The result is controlled by our holding in State v. Nelson,
It is contended by Safeway Stores, Inc., that the declaration of invalidity of section 5 has the effect of invalidating the whole act. The rule in such cases is: Where it appears that unconstitutional portions of an act can be separated from the valid portions and the latter enforced independent of the former, and it further appears that the invalid portions did not constitute such an inducement to the passage of the valid parts that they would not have been passed without them, the former may be rejected and the latter upheld. State ex rel. Wheeler v. Stuht,
Admittedly, if the portion stricken was such a major part of the act that it was one of the inducements to its passage, the whole act must fall. The question is, then, was section 5 of such importance that it materially contributed to the passage of the act?
The purpose of the act before us, as shown by the title to the act, was to limit the number of alcoholic beverage retail licenses in which any person may be beneficially interested, to provide exemptions, to make certain acts unlawful, and to provide penalties. Section 5 of the act was in fact only incidental to the main purpose of the act. It is not clear to us how a limitation of a two percent interest in any corporation whose shares are traded on a national securities exchange or regularly traded in an over-the-counter market of a national securities association could be germane to the act. If the limitation applied to the stock of manufacturers, wholesalers, distributors, or retailers of alcoholic liquors only, reason might well exist to sustain the validity of the provision, but a limitation on stock of any corporation bears no reasonable relation to the purposes of the act. The striking down of section 5 leaves a working plan in existence by which the purposes of the act can be enforced independent of such section. Whether or not invalid portions of an act were an inducement to- its passage is to be determined from the four comers of the act. It seems to us that section 5 was not an inducement to the passage of the act and that the latter would have been enacted into law irrespective of its presence therein/ The remaining parts of the act are enforcible irrespective of the invalidity of section 5.
L.B. 105 contains no severability clause. It is contended that without such a clause the court may not separate the valid from the invalid and sustain the valid and reject the invalid parts. The issue was passed on in Hubbell Bank v. Bryan,
We have examined the remaining assignments of error and determine that they cannot be sustained. The judgment of the trial court is correct and it is affirmed.
Affirmed.