Wade v. Horner
170 S.W. 1005
Ark.
1914
Check Treatment
Smith, J.,

(after stating the facts). It is seen from the statement of facts that the same question is involved in each of these appeals. It does not appear in either case whether the appellants desired the issuance of liquor license or not, as neither of them state in their petition what action they desired the county court to take in that behalf. The burden of their complaint is that the county court in each instance should have proceeded to a consideration of the determination of its policy in regard to the issuance of liquor license without reference to the requirements of the Going Act, and that this is true because said act contravenes the various .sections of the Constitution of this .State and of the Constitution of the United States set out in the petitions. Appellants argue that the act in question constitutes a discrimination against them on account of their race, in that they are alike interested with white citizens of the State in the determination of the policy of the court in regard to the issuance of liquor license and that the Going Act prescribes a procedure which is, in effect, an election, and the exclusion of members of the African race from participation in the decision of this question is a deprivation of a privilege granted to them alike by the Constitution of this State and of the United States. It is argued that there are many .communities in this State where the African race largely predominates and that in these, as well as in all other communities, they are deprived of any right to participate in the determination of the policy in regard to the issuance of liquor license.

These arguments are not new and are not now being presented for our consideration for the first time. The appellants in one of the cases recognize the force of our decision in the case of McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174, but insist that that decision should not control here, because the parties to that litigation were not in a position to raise the questions now presented, for the reason that none of the parties to that litigation were members of the African race, .and that, as only a member of that race can raise these questions, the decision in the McClure case, supra, is not decisive of the present case. But we do not agree with this view. The opinion in the McClure case, supra, makes no mention .of the fact that the parties to that litigation were members of the white race, and we there considered all the arguments now advanced, and the authorities were reviewed in the opinion of this court, and the Going Act was there upheld as a constitutional enactment. In that case we expressly held that a proceeding under the Going law was not an election, and it was further held that the right to. sign the petition there provided for was not a privilege, but that the presentation of a petition, signed by a majority of the adult white inhabitants of any given municipality, was a mere condition which the Legislature had seen fit to impose before license to sell liquor might be granted to any one. It was pointed out in that case that the act did not undertake to prescribe the class of persons to whom liquor license might be granted, and there is nothing in the act which gives to any white person the right to sell liquor, when the conditions of the law have .been complied with, which is denied to any other person. This act merely imposes a condition which must be complied with before any .one may lawfully sell liquor, and contains no restriction as to whom license may be granted, when these conditions have been met. As has been said, the authorities were reviewed in the McClure case above, and it would be without profit to again review them here. In the recent case of Hickey v. State, 114 Ark. 526, in reviewing the opinion in the McClure case, it was said:

(1) “We held, in effect, that the statutory provision that a license to sell intoxicating liquors shall not be granted unless the applicant .obtains the recommendation or consent of a majority of the adult white inhabitants ef the city where he proposes to carry on business, is a lawful and proper police regulation, and is not objectionable on the ground that it violates either the State or Federal Constitution.. We said that under the statute now under consideration the petition was a jurisdictional condition upon which the county court acts, when satisfied that it contains the names of the majority of the adult white inhabitants in the city in which the applicant seeks license ,to sell intoxicating liquors, and held that a statute imposing conditions on the business of retailing intoxicating liquors, though such conditions may be more onerous than those imposed upon another business, .and though such conditions may be so burdensome as to render the business unprofitable and, on that account, amount, in its practical results, to prohibtion, may be sustained because the business of selling intoxicating liquors more seriously affects the health, morals and general welfare of the people than another business. ’ ’

No arguments are now advanced which shake our faith in the correctness of that statement.

(2) When the terms and requirements of the Going Act have been met, there still abides with the judge of the county court a discretion as to whether or not he shall adopt the policy of granting license to sell liquor, and this act merely imposes a condition which must be met before the judge may exercise that discretion.

(3) It is insisted that the Going law deprives the colored citizen of the right to remonstrate against the issuance of liquor license. But such is not the case. He may do so in any manner in which a white citizen may remonstrate. He has the right to be made a party to any proceeding under the Going law and to demand that its requirements shall be met before the county court shall adopt the policy of issuing liquor license, and if that court should ignore this law, or fail to find that its requirements had been complied with, the. colored citizen thus made party to this proceeding, would have the same right to prosecute an appeal that any other citizen would have. And if it be found that the requirements of that act have been met, the colored citizen may be heard, and,' of course, should be heard by the judge of the county court, as to the exercise of the courts discretion about granting license at all; and if so, then further upon the segregation of the traffic, or other questions relating to its control or regulation.

(4-5) It is further argued that no race suffers more from the baneful effect of the liquor traffic than the colored race, yet they are allowed no voice in its suppression, and that there are communities in this State in which the colored population very largely predominates, and that a minority of white persons have the exclusive right of determining that liquor shall be sold in such communities, and that the colored citizens are powerless to protect themselves from this traffic. But such is not the case. Under the law of this State, liquor can not lawfully be sold in any county unless a majority of the electors voting on the subject of the issuance of license shall vote for the issuance of license; nor can liquor be sold in any township of any county, nor in any ward of any city, notwithstanding the vote of the county in which such township or ward may be situated, unless such township or ward shall likewise vote for the issuance of license. If the vote on this question, which occurs at the general State election on the second Monday in September of the even numbered years, is favorable to the issuance of liquor license, then a condition under which the county court may exercise its discretion in regard to the issuance of such license.is met, but this favorable vote for license is, itself, a condition precedent to the exercise of this discretion. Another statute permits all adult persons to petition the county court to prohibit the sale of intoxicating liquors within three miles of any given point in this State, and no distinction is made on account of the race of the petitioner, and the court must make its order prohibiting the sale of liquor within three miles of the designated point, if such petition contains a majority of the adults, without any reference whatever to the race of such petitioners. This election, and this proceeding by petition under what is commonly known as the three-mile Local Option Law, are both mere methods by which the State exercises its police power in regard to this traffic. The State has this right, because the authority to sell liquor is a mere privilege, which the State may grant or withhold, as it pleases, or, if it grants this permission at all, it may do so under any conditions which it cares to impose; and this is true, as has been stated, even though these conditions are so onerous as to amount to virtual prohibition of that traffic. The necessity of securing the petition of a majority of the adult whites of any given community is one of these conditions, and is valid as such. The Legislature, if it saw proper, could require that petitions be obtained securing the signatures of the majority of the adults of the colored race, and such requirement would be a valid exercise of the State’s police power, even though none except members of the colored race were permitted to sign this petition.

Both the decree and the judgment are affirmed.