State v. Clark

28 N.H. 176 | Superior Court of New Hampshire | 1854

Gilchrist, C. J.

The city ordinance prohibits the using or keeping intoxicating liquors, in any refreshment saloon or restaurant, only. It does not prohibit the using or keeping elsewhere, but it selects places of a certain class, and prohibits their use in such places. There is nothing unreasonable in such an exercise of the judgment of the city authorities. The ordinance does not profess to prohibit either the use or the sale of liquors altogether. From motives arising out of a regard for public policy or morals, it declares that liquor shall not be kept in such places. It is, in fact, a sumptuary law, which goes no further than almost any laws of this description, nor is it any more stringent than many other laws which are enacted from a regard to the public peace and safety. By chapter 112, sections 1 and 2 of the Revised Statutes, the keeping of gunpowder, in the compact part of any town, in a greater quantity than twenty-five pounds, is prohibited. There is also a provision in the Revised Statutes, ch. 118, § 9, prohibiting sales, &c., within two miles of places of meeting for religious worship.

In the case of Heisembrittle v. City Council of Charleston, 2 MacMullen 233, the council had passed an ordinance prohibiting shopkeepers, unless licensed, from keeping any spirituous liquors in their shops, or in any adjacent room; and a process was issued against the plaintiff for a violation of it. It was held by the court, (Earl, J.,) that there was nothing in the constitution of the State or of the United States, restraining the Legislature from passing a general law like that under consideration, or from granting the power to do so to municipal corporations.

By the act of 1783, 7th Stats. 98, the City Council of Charleston were vested with the power to pass “ every bylaw or regulation that shall appear to them requisite and necessary for the security, welfare and convenience of the said city, or for preserving peace, order, and good government within the same.” The ordinance provides that no persons, owning or keeping a retail grocery store within the city, &c., not having a license, &c., shall be permitted to keep in such shop, or in any room adjacent thereto, or on the premises connected with such shop, any wine, malt or spirituous liquors. It was said by the court that “ the general powers of legislation, on all matters connected with the security, welfare and convenience of the city, or for preserving peace, order and good government within the same, are. sufficiently comprehensive to cover the ordinance in question.” The appeal of the plaintiff was, therefore, dismissed.

This case has a very strong resemblance to the one now before us, and confirms the views taken by the court upon the question submitted.

In the case of Stokes v. The Corporation of New York, 14 Wend. 87, the ordinance of the corporation required anthracite or hard coal to be sold by weight, and that it should be weighed by weighing-masters, not exceeding six in number, appointed by the common council; and it imposed a penalty upon any vendor of coal who should sell any anthracite or hard coal without being first weighed. A suit was brought to recover the penalty, and upon a writ of error from the superior court, for the city, it was contended by the plaintiffs in error that the ordinance was unconstitutional, and that the power to legislate on the subject could not be delegated to the corporation. It was held by the court that the appointment of weighers, and the law requiring coal to be weighed by them, was not a restraint upon trade, but a regulation of it, and that it was not unreasonable, because if the number of weighers was insufficient, as was suggested, the corporation could remove the difficulty by the appointment of an adequate number, and that the case was one clearly within the power of corporate regulation, and that it was unnecessary to discuss the question of the constitutionality of the ordinance and the law authorizing it.

There is, also, another question in the case.

It appears that the saloon complained of was in a cellar under the building. the ordinance are “ refreshment saloon -v «- ¡ ;n --any, * 'These may as well be in one story as anoth i - cellar, under the building, as is* the attic, at its top. It is enough if the liquors are kept in such places as those described, wherever they may be; and the law is equally violated, whether the whole building or any part of it, was appropriated to such purposes, and the cellar is as much a part of the eating-house as any other portion of the building. The judgment of the police court must, therefore, be affirmed.