84 P. 27 | Idaho | 1906
— The appellant was convicted of the crime of keeping open his saloon in Boise City after the hour of midnight, or between midnight and the hour of 6 o’clock the following morning; and in another and separate suit he was convicted of keeping open his saloon in said city on the day of the week known as Sunday, in violation of the provisions of ordinance No. 623 of the ordinances of said city. From which convictions he appealed to the district court, where both cases were tried upon an agreed stipulation of facts, and the appellant was again convicted, from which judgments the appellant appeals to this court. It is agreed between respective counsel that as the same legal questions are involved in each case, both eases shall be submitted to this court upon the same briefs and arguments. The cases were tried in the court below upon an agreed statement of facts, which is as follows: “It is stipulated and agreed by and between the parties hereto that the above-entitled cause shall be tried and determined by the court without a jury, and that a jury is expressly waived.
“It is further stipulated and agreed by and between the parties hereto that the facts in this case are as follows:
“1. That on the sixth day of July, 1905, at a regular meeting of the common council of Boise City, Idaho, said common council passed an ordinance No. 623, which said ordinance was on the eighth day of July, 1905, duly approved by the mayor of said city; and which said ordinance since last-mentioned date has not been repealed, and which said ordinance is in the words and figures following, to wit:
“ ‘Ordinance No. 623 — By Barber.
“ ‘An Ordinance Regulating the Hours in "Which Intoxicating Liquors shall be Sold in Boise City, and for Sunday Closing, and Providing for a-Penalty for the Sale Thereof During Prohibited Hours.
“ ‘Boise City Does Ordain as follows:
“ ‘Sec. 1. Any room where intoxicating, spirituous, vinous' or malt liquors are sold by-virtue of a license under the ordinances of Boise City, shall be so arranged that the same shall be securely closed and locked and admission thereto prevented;*726 and the same shall be securely locked and all persons excluded therefrom each and every day, after the hour of 12 o’clock midnight until the hour of 6 o’clock A. M., following, and on Sundays from 12 o’clock Saturday night until 6 o’clock A. M., on Monday mornings, and no intoxicating liquors shall be sold between such hours.
“ ‘And it is hereby made unlawful for the proprietor of such a place and the business herein contemplated of selling intoxicating liquors, to permit any person or persons other than himself and family to enter such room and place where intoxicating liquors are sold during the hours when the sale of such liquors is prohibited.
“ ‘Sec. 2. Any person or persons failing to comply with the provisions of Section 1 of this ordinance, or violating any of the provisions of said Section 1, shall be deemed guilty of a misdemeanor, and upon conviction in the Police Magistrate’s Court of Boise City shall be fined in any sum not exceeding Two Hundred ($200.00) Dollars, or by imprisonment in the city jail for a period not to exceed sixty days, or both such fine and imprisonment.
“ ‘Sec. 3. This ordinance shall take effect and be in full force from and after the 8th day of July, 1905.’
“2. That on the 23d day of July, 1905, defendant, Prank Calloway, was a citizen of the United States and the owner of that certain saloon known as the Exchange Bar, situate in Boise City, Idaho, and was operating said saloon at said time under a saloon liquor license issued by Boise City.
“3. That said defendant, Frank Calloway, did on the twenty-third day of July, 1905, said day being the first' day of the week commonly called Sunday, allow and permit people to enter his said saloon for the purpose of purchasing intoxicating liquors.”
These cases involve the legality or- constitutipnality of said ordinance No. 623, and the only question before the court is whether or not said ordinance is a valid and existing ordinance of said city.
It is first contended that the common council of Boise City is not by the charter of said city given the power to pass such
It is most strenuously contended by counsel for the appellant that this ordinance makes the gist of the offense the entering of such room and place where intoxicating liquors are sold, and that it was undoubtedly the intention of the framers of that ordinance to make the gist of the offense the selling, of intoxicating liquors during the prohibited hours. It is ■clear to me that the object of said ordinance was to prohibit the sale of intoxicating liquors during the prohibited hours, and that the only effective way to do so was to make it a misdemeanor for the proprietor to permit any person other
The supreme court of the state of North Carolina, in the case of Paul v. City of Washington, 134 N. C. 363, 47 S. E. 793, 65 L. R. A. 902, which was a case involving the validity of an ordinance requiring liquor saloons to be closed between 8 o’clock in the evening and 6 o’clock in the morning, and forbidding the doors to be open during those hours, was not unreasonable. That court also held that an ordinance forbidding the owners or employees in places where liquors are sold to be in such places between the hour of closing on Saturday night and the hour for opening on Monday morning, is not so clearly unreasonable as to require the court to set aside an ordinance making such provision. From the language there used the court evidently concluded that the ordinance came very close to the line of “unreasonableness” as they say it is not so “clearly” un
It was contended in that case that said ordinance was arbitrary, oppressive, vexatious, unreasonable and void, in that it deprived the plaintiff of the use and convenience of his property without due process of law. The court held against the liquor dealer on that proposition, and further held that police regulation statutes are valid unless the purpose or necessary effect is not to regulate the use of property but to destroy it. And in the case at bar it certainly will not be contended that the provision of the ordinance prohibiting any person from entering the saloon except the owner and his family would deprive him of the use and convenience of his property without due process of law. In the last-mentioned case the owners of the saloon were excluded from their places of business during prohibited hours and still it was held reasonable, while in the ordinance in question the owner and his family are permitted to enter the saloon during prohibited hours. If people can be legally restrained from working more than eight hours per day in some of the ordinary avocations of life, it certainly does not seem unreasonable that liquor dealers should be restrained from plying their vocation more than eighteen hours per day.
In the case of State of Indiana v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313, the court said: “The power to prohibit the sale of intoxicating liquors in the interests of public safety or welfare during certain prescribed periods is not denied. The legislature possessing the right, as it unquestionably does, may further extend or exercise it so as to require a proprietor of & liquor saloon to securely close the same and permit no person to enter therein during the time when the sale of intoxicating liquor is forbidden.” That case involved the validity of a statute, but that makes no difference so far as this ease is concerned. The legislature in this state has authority to regulate the sale of intoxicating liquors, and the charter of Boise City authorizes the city to regulate the liquor traffic within its corporate limits. A part of the statute under consideration in the case
In McCarty v. City of Atlanta, 121 Ga. 365, 49 S. E. 287, the court said: “If once excuses were admitted for keeping open such places upon prohibited days or after prohibited hours, the law would be practically nullified. It would rarely be possible for the state or city to meet the excuses or to show that the place had been open for an unlawful purpose. The fact furnishing the excuse of the illegal act after the innocent entry would be so blended that they could not be separated. The opening, absolutely prohibited by law, would be legalized by the motive with which the prohibited act was done.. If such excuse could be given in one case, it could be in others, and the issue on each trial would be diverted from the question as to whether the place had been open at an unlawful hour into a consideration of the question as tp whether it had been opened for an innocent purpose. It is manifest that any such construction would in effect repeal the law and be utterly subversive of the very policy on which it was enacted.” In that case and in the case of State v. Binnard, 21 Wash. 349, 58 Pac. 210, it apparently is held that the very gist of
In People v. Waldrogel, 49 Mich. 337, 13 N. W. 620, the defendant was arrested for allowing persons in his saloon for the purpose of cleaning it out during prohibited hours. It was there held that the question of intent is wholly immaterial under the statute there involved; that the legislature in order to guard against the danger of sales being made had directed that the place where liquors are kept should be closed so that no opportunity to violate it by making sales should be afforded, and that such places must be closed and cannot be kept open for any business purpose of any kind.
In People v. Roby, 52 Mich. 577, 50 Am. Rep. 273, 18 N. W. 365, the court said: “The purpose for which the bar was open was immaterial; the offense was committed by opening it for cleaning as much as it would have been by opening it for the sale of liquors.”
In the case of Village of St. Anthony v. Brandon, 10 Idaho, 205, 77 Pac. 322, which was a ease where a restaurant or lunch counter was conducted in a room where intoxicating liquors were sold, this court held that the sole purpose of the ordinance there under consideration was to control the retail liquor trade of that village as to best preserve the quiet and peace of its citizens, and if the room where the saloon was kept is permitted to be kept open during the prohibited hours the officers would be hampered in the enforcement of the ordinance. We therefore conclude from the decided weight of authority and the reason of the case that the letting in and out ordinance is not unreasonable, and that under the charter of Boise City and the general statutes of the state, the city council was authorized to enact the same.
Counsel for appellant contends that said ordinance is unconstitutional, upon the ground that it is class legislation and contravenes section 1 of article 14 of the amendments of the federal constitution, in that it abridges the privileges of the citizen and deprives him of liberty and property. Said section of the constitution provides, among other things, that
In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273, 31 L. ed. 205, it was held that legislation by a state prohibiting the manufacture of intoxicating liquors within such state to be there sold for general use as a beverage, does not infringe any right, privilege or immunity secured by the constitution of the United States. If a total prohibition of the manufacture and sale of intoxicating liquors does not infringe any right, privilege or immunity secured to the citizen by the constitution, certainly a prohibition of the sale of such liquors for six hours out of twenty-four hours would not infringe such, right, privilege or immunity.
It was held in Crowley v. Christenson, 137 U. S. 86, 11 Sup. Ct. Rep. 13, 34 L. ed. 620, that “there is no inherent right in the citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen of the state or of a citizen of the United States. It may be entirely prohibited by state legislation or be permitted under such conditions as will limit the evils. The possession and enjoyment of all such rights are subject to such reasonable conditions as may be determined by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.” In that case it is recognized and also is a well-known fact in history that much evil results from the sale of intoxicating liquors. Liquor dealers are not permitted to engage in that avocation without first obtaining licenses therefor, and such licenses are always issued with the understanding that the granting power may reasonably regulate such a business. That business is looked upon very differently from the ordinary avocations of life. It was said in Adams v. Cronin, 29 Colo. 488, 69 Pac. 590, 63 L. R. A. 67, that “these restraints are not like such as restrict the ordinary avocations of life, which advance human happiness, or trade and commerce— that neither produce immorality, suffering, nor want. This business is, on principle, within the police power of the state, and restrictions which may rightfully be imposed upon it might be obnoxious as an illegal restraint of trade wfhen applied to other pursuits. That the right to sell liquor is not an inherent right of the citizen of the United States is beyond cavil. That plaintiff has not been deprived of any property or civil right without due process of law or denied any privilege belonging to a citizen of the United States, is equally clear.” (See, also, Schwuchow v. City of Chicago, 68 Ill. 444, Ex parte Christensen, 85 Cal. 208, 24 Pac. 747.)
The business of selling intoxicating liquors is not considered as of equal dignity, respectability and necessity as that of the grocery, dry goods or clothing business or many other occupations that might be mentioned, and from time immemorial
The case of State v. Nelson, 10 Idaho, 522, 109 Am. St. Rep. 226, 79 Pac. 79, 67 L. R. A. 808, is not in point in this case. The ordinance under consideration in that case prohibited the wife or mother of a recreant husband or wayward son from going into the saloon in search of such husband or son. This court there held that that provision was unreasonable, arbitrary and oppressive. It is contended that the ordinance under consideration prohibits, and does not regulate nor restrain. There is nothing in that contention. Under the decision of this court in St. Anthony v. Brandon, 10 Idaho, 205, 77 Pac. 322, the court there made some observations on the meaning of the words “regulate” and “license.” While it is true the ordinance under consideration prohibits the conduct of the business therein referred to during certain hours, it is a regulation of that business, and not a prohibition of it. It was said by the court in Re Grand Jury, 62 Fed. 828) that “to prohibit, limit, confine or abridge a thing, the restraint may be permanent or temporary. It may be intended to prohibit, limit or abridge for all time or for a day only.” Restraint does not contemplate an absolute destruction of business, but rather places, it within certain bounds. The ordinance under consideration is simply a regulation and a restraint, but not a prohibition.
It is next contended that said ordinance is defective in form. There is nothing in this contention, as its objects and purposes are clearly shown from the language used therein. It is also contended that the title to said ordinance does not express the object or purpose of the ordinance. Said title is as follows: “An ordinance regulating the hours in which intoxicating liquors shall be sold in Boise City, and for Sunday closing, and providing for a penalty for the sale thereof during prohibited hours.” The object and purpose of the title is to show the general character of the ordinance so that anyone may not be misled thereby. It is well settled that matters of detail need not be specified in the title, nor it need