Whissen v. Furth , 68 L.R.A. 161 ( 1904 )

Hill, C. J.

The appellee, R. A. Furth, petitioned the county court of Pulaski County, pursuant to section 4869, Sandels & Hill’s Digest, to grant him a license to sell liquor during the year 1904. The appellants filed remonstrance against license issuing to him on the ground, inter alia, that he was not a person of good moral character. They became parties to the proceeding, adduced their evidence, and, upon an adverse decision, appealed to the circuit court, where they were again defeated, and they brought the case here. It has been advanced as one of public importance affecting the administration and construction of the liquor laws.

1. A preliminary question of practice arises. It is insisted that appellants had no right to appear in the county court as remonstrants, no right to appeal therefrom, and no right to trial de novo in circuit court. There is no express statutory authority for this proceeding, but it is clearly within the general terms of the statute and its spirit and intent. The right of citizens, on behalf of themselves and the public generally, to make themselves parties to proceedings of a public nature touching the local concerns of the county has been repeatedly recognized and enforced by this court. The right of appeal is guarantied to any party aggrieved, and it may be exercised by the losing party in these proceedings. The cases of Freeman v. Lazarus, 61 Ark. 247, and McCullough v. Blackwell, 51 Ark. 159, have settled all questions raised here on this matter of practice.

2. The circuit court held the burden of proof was upon the remonstrants to prove that the applicant was not a man of good moral character. This was error. The applicant comes to the county court alleging that license may be granted at the place sought, and that he possesses the statutory qualifications of age and character; the remonstrants may deny either or both allegations; and then, like all other issues of fact, the burden rests on him who asserts them. He has no natural right to license to sell liquor. This right can only be acquired by coming within all the provisions of the statute, and one of these provisions is that he must be a person of good moral character. The authorities are uniform in holding that the applicant for liquor license must show that he possesses the character and fitness required by the statute, and in the event of contest on the subject that the burden of proof is upon him. Black on Intoxicating Liquors, § § 162 and 168; 17 Am. & Eng. Enc. Law (2d Ed.), p. 252; Ouachita County v. Rolland, 60 Ark. 516; Goodwin v. Smith, 72 Ind. 113; Raudenbusch’s Petition, 120 Pa. St. 328.

3. Was Furth a man of good moral character, within the meaning of the statute? The Reporter will set out the substance of the evidence. In brief it shows: For several years he has been a saloon keeper in Little Rock, running a gambling house in connection with his saloon, and regularly paying fines for that privilege to the city and- county. These fines were collected by the officers at stated periods, not as bribes, but as fines which permitted him to run a gambling house; which he knew was contrary to law, but which he thought everybody could do on the same terms he did. In other words, the officials were licensing gambling on the terms shown in his testimony. This system was discontinued a few months before he applied for the license in question by the city closing the gambling houses. He was twice raided, and gambling devices seized and burned, in 1903, under orders of court. He testified that he did not expect to reopen his gambling house. In business affairs the evidence shows him to be upright and honorable, and socially he appears to be popular and highly esteemed, and there is nothing shown against his' private character.

The evidence shows him to have been a continuous violator of the criminal laws for many years. That the officers condoned these violations only renders them violators of the law also, and did not change the criminality of his acts before the law, however much or little, it may have changed it in public opinion.

If such a person is entitled to license under the section quoted, then the purpose of this legislation is defeated. This court said of this section: “The object of this limitation (to persons of good morál character), in part, evidently was to aid in the prevention or suppression of the crimes and vices which are sometimes associated with or grow out of the sale of liquor. The enforcement of the laws, doubtless, could be materially aided, in the way of suppressing gaming and violations of the Sabbath and other vices, by granting license exclusively to such persons.” Ouachita County v. Rolland, 60 Ark. 516. It is one of the chief aims of the liquor legislation to keep gaming away from saloons. It is a misdemeanor to permit gaming in the house, outhouse, curtilage or inclosure of a dramshop, and a conviction for so doing forfeits the license, Sand. & H. Dig. § 1904; Brockway v. State, 36 Ark. 629; Ballentine v. State, 48 Ark. 45. In addition to this penalty and forfeiture of license, the dramshop keeper must give bond conditioned to respond civilly for money lost at gaming in the dramshop or any room attached thereto under his control. Sand. & Hill’s Dig. § 4870.

In view of this settled policy to keep gaming away from dramshops, it seems useless to further consider whether an habitual violator of the law in this'respect shall be given license. But counsel urge that the same degree of moral character is not required of a person to conduct a saloon that is required of a superintendent of a Sunday school or a minister of the gospel, and insist that the requirement is fulfilled if the applicant has as good moral character as the other applicants. Because the standard of morality of all the applicants is low is no reason for granting license to all, but is a reason for refusing to all. Suppose all the applicants were keepers of bawdy houses, as the one in the Rolland case was, should the license be granted to all because there was no distinction in the degrees of immorality? The question answers itself. Nor will the other argument avail. The law may not expect the same degree of morality for a saloon keeper as a minister, but it does require of each an equal obedience to the law. It is thoroughly settled by authority that an habitual violator of the laws, even the laws which are only mala prohibita instead of mala in se, is not within the meaning of the statute requiring the applicant to be of “good moral character.” Black on Intoxicating Liquors, § 162; Leister’s Appeal, 11 Atl. Rep. 387; Hardesty v. Hine, 135 Ind. 72; Stockwell v. Brant, 97 Ind. 72.

Not only does this rule apply to applicants for liquor licenses, but to others. In Weiman v. Mabie, 8 N. W. 71, it was applied to an applicant for teacher’s license. In the case of In re O., 42 N. W. 221, it was applied to an applicant for an attorney’s license. In re Spenser, 22 Federal Cases, p. 921, it was applied to an applicant for naturalization. In the latter case the court said: “For instance, the law of the State prohibits gaming and the unlicensed sale of spirituous liquors. These acts thereby become immoral. But their criminality consists in their being prohibited, and not because they are deemed intrinsically wrong, mala in se. Now, if an applicant for naturalization, whose behavior during a period of five or more years was otherwise good, was shown to have committed during that time either of these or similar crimes, I am not prepared to say that his application ought to be denied on account of his behavior. And yet it is clear that anything like habitual gaming or (unlicensed) vending of liquors under such circumstances would constitute bad behavior, immoral behavior — and be a bar under the statute to admission to citizenship.”

Thus it is seen that habitual violation of the gaming or liquor laws takes away that “good moral character” contemplated by the statute, and bars even admission to American citizenship. More is the reason to hold that it takes away the “good moral character” contemplated by this statute which seeks to place the liquor traffic in the hands of the law-abiding, and not the lawbreaking, class.

Therefore it follows that an habitual violator of the law, especially the laws regulating the conduct of the liquor traffic, is not a person of “good moral character,” within the meaning of the statute, no matter how honest he may be in business or clean in private life.

It is said that appellee was not violating the law at the time he applied for license, and that he did not intend to reopen his gambling rooms. The evidence shows that it was the city, and not the appellee, who reformed. The mere fact that in the past a person has offended the laws habitually will not prevent him having a character within this statute if the evidence shows a real reformation. This fact, like all others showing good character, must be established by the applicant, and, when so done, he is then a proper person for license. This restored good moral character is not proved by a mere cessation from violations of the law induced by bench warrants and burning orders.

The granting or denying license is a discretionary matter within the limits defined in Ex parte Levy, 43 Ark. 61, and is a judicial discretion, not an arbitrary one, and hence is subject to review on appeal to the circuit court and to this court.

The judgment is reversed, and judgment entered here cancelling the license granted appellee and for costs.