71 Mich. 234 | Mich. | 1888
Lead Opinion
This case involves the constitutionality of Act No. 31, Laws of 1887, which provides that it shall not be lawful to establish or maintain a saloon or other place of entertainment in which intoxicating liquors are sold, or kept for sale, within one mile of the Soldiers’ Home, and also prohibits the sale or giving of liquor to a soldier, sailor, or marine, who is an inmate or employé of such Home, within the same distance.
The relators, Whitney and Saunders, on September 13, 1884, purchased about three-fourths of an acre of land on the Canal-street gravel road, a few miles 'out from the city of Grand Rapids, and near where a bridge upon said road crosses the Grand river. They built upon these premises a two-story brick building and out-houses and sheds. The relators aver-that these buildings were erected for the express purpose of conducting the business of selling at retail spirituous, malt, brewed, fermented, and vinous liquors, and other refreshments, including warm meals and lunches, usually provided in a wayside inn. The buildings were finished, and relators entered upon the business of selling liquors therein on or about June 1, 1885, which business they have since continued. The expense and cost of the said property, buildings, fittings, and furniture was about $6,000. They aver that the buildings, and the fittings and furniture therein, have been so
On May 31, 1888, being desirous of still carrying on the business of selling liquor, they prepared the necessary bond, complying with' the terms and conditions prescribed by Act No. 313, Laws of 1887, and presented the same, with two sufficient sureties, to the township board of the township of Grand Rapids; that being the township in which their said place of business is located. The board refused to approve said bond because said place of business is within one mile of the Soldiers* Home.
If the law is constitutional, this action of the township authorities was proper; if not, the writ of mandamus should issue, as prayed by the relators, directing said board to approve the bond.
It is claimed that the law is in conflict with section 33 of Article 6 of our State Constitution, which declares that no person shall be deprived of life, liberty, or property without due process of law; and with the fourteenth amendment of the United States Constitution, which declares that—
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state * * * deny to any person within its jurisdiction the equal protection of the laws.**
The facts are that the relators had established and were carrying on a lawful business, under our laws, before the Soldiers* Home was located within one mile of their premises; and it is argued that the State has no right, by this act, to destroy their business, which before its passage was legitimate, and to make useless and valueless their property, without compensation.
It must be remembered, however, that when the premises were purchased by the relators, and the buildings and
It is not necessary, in the present case, to determine whether the Legislature, under the police power, would have the right to destroy, without compensation, a business, and the property connected with it, that had been built up and carried on for years without any restrictions whatever upon it, and which no law had ever undertaken to prohibit or regulate. I am not yet prepared to hold the police power absolute and omnipotent; that the Legislature can arbitrarily and without reason, and in defiance of right, pass any statute it may see fit under this power, provided it does not run against some express provision of our State or Federal Constitutions. It cannot destroy fundamental rights without good reason
But the liquor traffic has ever been considered a business fraught with so much danger and disturbance to the public welfare as to be peculiarly under police surveillance and control. And the Supreme Court of the United
I cannot agree with the Chief Justice that the Legislature can arbitrarily prohibit the sale of liquor in this State, or any portion of this State. I do not doubt the power to prohibit the sale and manufacture of liquor in the whole State by general laws; but the Legislature, in my opinion, cannot, without good reason, prohibit the sale of liquor in one township or county, or a specified number of townships and counties, and legalize the traffic in the rest of the State; and whether a law of this kind is reasonable or not belongs to the courts to determine. If the Legislature can do this without challenge from the courts, why cannot it pass a law allowing liquor to be sold in Detroit and nowhere else? Such legislation is contrary to the spirit of our State government, and would confer special and local privileges against right and reason, and in defiance of the principles upon which our free institutions are based.
I pass no opinion upon the power of the Legislature, by general laws, to authorize townships, villages, and cities to regulate or prohibit the sale of liquor as they see fit, or of the right of the Legislature to provide by a general enactment that the question of such regulation may be determined by vote of the electors of such municipalities, as those questions are not involved here, and the argument above made is confined to the passage of special laws for special localities.
But the State has a right to guard and protect its poor and its unfortunates within and about the State institutions in which they are cared for and maintained, and has a right, under the police power, to make such rea
There was for many years, when liquor selling was practically unrestricted in this State, a statute forbidding' its sale within a certain distance of camp or other outdoor religious meetings. The power 'of the Legislature oould not be doubted, in my opinion, to forbid the sale of liquor within certain distances near to school-houses •and churches. But it is argued that the law must be general, and apply to all school-houses and churches within the State. This can be granted without affecting the present question.
It is the custom and practice of the Legislature to enact laws specially in relation to the government, control, and wants of State institutions, and I know of no constitutional or other good reason why this cannot be done. No one will question the right of the State to enact that liquor shall not be sold, given away, or furnished to the inmates of the Soldiers’ Home, or upon the premises belonging to the State. And I have no doubt of the equal right of the State to forbid such sale or furnishing of liquor upon ground, though it be private property, immediately abutting or adjoining the land belonging to the Home, or within a reasonable distance of it.
These men who are within this Home are the wards of
The limit of one mile is not an unreasonable one, and the law must be sustained. The writ, therefore, should be denied, with costs against the relators.
The petitioners are retailers of spirituous and intoxicating liquors in the town of Grand Rapids. Their place of business is about four miles north of the city of Grand Rapids, where they own about three-fourths of an acre of ground, upon which they erected, in 1885, a large two-story brick building, in which they have ever since carried on their liquor business, selling at retail. The buildings, fixtures, and furniture cost about $6,000, several thousand dollars’ worth of which is worth but little for any other purpose. Desiring to continue the business, the relators prepared and executed a bond, with two good and sufficient sureties, in conformity with
The respondent made no question but that the bond was in compliance with the statute upon that subject, and the sureties were pecuniarily of sufficient responsibility; and, but for the prohibition contained in the statute, the board expressed a willingness to approve the bond. The statute referred to was passed by the Legislature March 17, 1887. The first section declares that it shall not be lawful to establish or maintain a saloon or other place of entertainment in which intoxicating liquors are sold or kept for sale, nor tq give away or dispose of any such liquors, within one mile of the Home for Disabled Soldiers, Sailors, and Marines established by the State. See Laws of 1887, p. 30.
The relators claim that the provisions of this act furnish to the board no sufficient excuse for its refusal to approve the bond. They claim and insist that said statute is in conflict with section 32 of Article 6 of our Constitution, and that it is obnoxious to the fourteenth amend, ment of the Constitution of the United States, which declares that—
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.55
The fact that the relators had established and were
I do not think tbe position taken by the learned counsel for tbe relators is tenable. All property is held at all times subject to the proper exercise of tbe police power of the State, and it makes no difference whether tbe property is tangible and material, or consists of tbe right to use such property, and tbe enjoyment of its use. Foster v. Kansas, 112 U. S. 201 (5 Sup. Ct. Rep. 97.) Tbe carrying on of tbe business of retailing liquor has ever been regarded as accompanied with danger .to tbe lives, health, and happiness of the jjeople; and civilized countries have always regarded it as a proper subject for tbe exercise of tbe legislative power. It has always been regulated, to some extent, under the police power of tbe State, and it has never been attemped to apply any other to it, for tbe reason no .other power exists wbicb has ever been found adequate to furnish tbe remedy necessary to prevent and punish the innumerable wrongs and injuries it inflicts and entails upon tbe citizens, society, and tbe state; and, even in tbe exercise of this power, in many instances, it has been found almost entirely inadequate, while regulating it, to prevent a recurrence of tbe evils. In several of tbe states it has been found necessary to prohibit the business altogether in order to get rid of tbe excesses wbicb seem to
I have no doubt of the right of the State to prohibit the business entirely; and, if so, the Legislature may forbid the 'sale of intoxicating liquors, in the whole or any part of the State, whenever and wherever the lives, health, and welfare of the people may require it. And in so doing no provision of the Constitution is violated; but, on the contrary, the great object for which it was ordained will, in part, be accomplished, wherever such prohibition can be carried out. Cooley, Const. Lim. 482, 744; State v. Rauscher, 1 Lea, 96; West v. State, 9 Humph. 66; Boyd v. Bryant, 35 Ark. 69; O’Leary v. County of Cook, 28 Ill. 534. The application of the law to the locality of the Home in this case is, no doubt, very desirable and beneficial. It will secure, in part at least, the protection of those brave men who have found a home in that excellent institution which they have so richly earned, and now have the right to enjoy in peace and quiet in their declining years. It should not only be accorded, but secured, to them; and they should be protected against the mercenary and merciless.
The police power is a part of the “law of the land,” and all rights are held subject to it. Without it, legal protection to life and property, and the peacefulness of the home, would cease to have any place in the land. The most sacred rights of the citizen would be at the mercy of the lawless and the desperado. Life would be endangered, and liberty and property would scarcely find an abiding place among men. The police power is not
Tbe fact that relators were established in their business before tbe Home was located and erected near them can make no difference. All property is taken, held, and enjoyed subject to tbe law of tbe country in wbicb it is located; and one provision of that law is that it shall bé so used and enjoyed as not to become a nuisance, or seriously impair tbe life, health, and welfare of tbe citizen wherever be makes bis home, or wherever be may engage in any lawful avocation or employment, or to disturb his peace or tbe good order of tbe community. Fell v. State, 42 Md. 71; Beer Co. v. Massachusetts, 97 U. S. 25, 33; Mugler v. State, 8 Sup. Ct. Rep. 273.
Condemnation and compensation are not necessary in any case where tbe business has always been regulated under tbe police power, and parties have built it up, and
Dissenting Opinion
(dissenting). I do not think this case presents any question of the invasion of property rights in the true sense of the term. If relators had invested money in property which was useful for some one purpose and for no other, or where use for any other purpose would directly diminish its value, I am not prepared to say they would not be legally injured by a'forced suspension or destruction of that use.
But here they show that they bought and improved certain real estate for the purpose of a way-side inn and house ■of entertainment generally, furnishing meals and other refreshments. In such a business the furnishing of any particular kind of refreshments is merely incidental to the rest, and not essential. It would be a very violent inference to assume that any of relators’ fixed property had been destroyed, or could be destroyed, by interfering with liquor retailing in their tavern, when, presumptively, many guests would not touch it.
But the business of retailing liquor as a part of their ■other business being lawful under the statutory conditions for all persons who choose to engage in it through the ■State generally, these parties have the right, as citizens, to be protected in it on complying with those conditions, unless it is lawful to put them on an exceptional footing. The right of carrying on any lawful business is a valuable ■one, and courts are bound to protect it.
If the power exist in the Legislature to restrict the conduct of one kind of business in a particular place, no-court can distinguish one business from another in the-exercise of that restriction. It is entirely fallacious to say that the particular business in question here is a dangerous one, and very generally regulated. That is undoubtedly true as a matter of fact, but it is not true as a. source of authority. Legislation has frequently existed for encouraging and for restricting many kinds of business; and, where the power exists, the determination of the policy is a matter of legislative discretion. We have had tariffs which on some articles were prohibitory, and were meant to be so. There has been legislation regulating or checking the cultivation of plants of various sorts, the exportation of domestic raw materal, or the importa
The law under which respondents justify their refusal to accept the liquor tax and approve the bond of relators is somewhat peculiar in more than one aspect. It purports in the title to prohibit either the keeping of saloons, or the sale or giving of intoxicating liquor, within one mile of the Soldiers' Home. But in the body of the act, while it forbids the maintenance of saloons within one mile of the Home, yet it only punishes the sale or gift within that distance to inmates of the Home. This law took effect May 1, 1887. Laws of 1887, p. 30. A subsequent law, taking effect 90 days after the close of the session, forbids the sale or furnishing of liquors to such inmates except when on furlough, and away from the city of Grand Rapids. Page 204. Taking these two laws together, they indicate that the individual soldier on furlough may buy or receive intoxicating liquor anywhere except in Grand Rapids or the mile limit; that in any part of Grand Rapids the trade shall be open except as to sol.diers; and that immediately over the line of the city, when the mile circle is reached, there can be no places of sale for anybody.
This mile circle, which is not a legal territorial' subdivision, is therefore put on a different footing from any other parcel of the State. It cannot rest on the offensive theory that disabled soldiers are not entitled to sui juris,
The apparently benevolent purpose of this statute cannot take away the odious and disagreeable principle which underlies it. It means neither more nor less than that the Legislature may at will put any place or any person or thing under exceptional conditions under the law, from such imagined reasons of policy as seem plausible. If such a power exists, courts cannot review the legislative opinion of policy or the legislative finding of necessity. It is no answer to say that abuses are not probable. All constitutional rules are adopted to prevent possible abuses, and yet there is always a presumption that they will not be allowed. The experience of all time has shown that no one can anticipate the excesses of unlimited power. Most evasions of the Constitution are sought to be excused by good intentions; and every such evasion sooner or later leads to palpable mischief. When the door is opened, it cannot be effectually closed.
Furthermore, the State owes the same duties to all of its citizens. Except for their honorable antecedents, which have no bearing on their helplessness, the temptations ana
I think the relators should have their remedy.