Rohrbacher v. Mayor of Jackson , 51 Miss. 735 ( 1875 )

Simrall, J.,

delivered the opinion of the court.-

The only question seriously pressed is as to the validity of the “ aet ” of 1874 to amend section 2459 of the Code of 1871, regulating the sale of vinous and spirituous liquors, etc. The act to which this statute is an amendment is chap. 56, Code 1871, none of which is affected by the legislation in question except sec. 2459. The first seetion of the chapter declares “ it shall not be lawful for any person, except druggists and physicians under the restrictions hereinafter named, to sell vinous and spirituous liquors in a less quantity than one gallon without first having obtained a lieense therefor.” The prohibition is to sell by the retail (less than a gallon), the privilege so to do, however, may be obtained on certain conditions.

The subject of retailing liquor has, from the earliest time, been subject to regulation. A compilation of the earlier statutes was made June 29, 1822. Hut. Code, pp. 264, 265, 266. The seeond section has the feature of requiring the applicant to be recommended by at least six respectable freeholders (in some casesj householders), and the third section exacts a bond. For cause, the license may be revoked. This was followed by the act of 1837, commonly called the gallon law, which repealed the former license laws and prohibited the sale altogether in less quantities than one gallon. In 1842 the legislature restored the license system, prohibiting all not licensed from selling in less quantities than a gallon, and requiring the applicant to be endorsed as a respectable person by five freeholders, and bond to be given. Hut. Code, 270, 271. This statute was substantially incorporated into the revision of 1857, with additions and alterations. Among others, the applicant shall produce to the board of supervisors, or the town or city authorities, a petition signed by a majority of the voters resident in the police district or in the incorporated city or town which, with the counter petition, shall lay over one month, and if a majority of voters shall petition against such license, it shall not be granted for twelve months after such petition is so presented. Art. IV., pp. 197, 198. The license may be revoked if the party shall become an unfit person, or shall violate the provisions of the act. Art. VII, p. 198. Bond must be given that gaming, drunkenness, or disorderly conduct will not be allowed, but an orderly, peaceable house will be kept. Chapter 56 of the present code is in substance the same.

This review of the legislation indicates that the policy of the state has been to prohibit, in general, the sale of intoxicating liquors by the glass, except that the special privilege was authorized to be granted to applicants who supported their claim by proper vouchers of being respectable persons, and who gave bond that they would not violate the statute, nor suffer disorder or drunkenness on the premises. The assumption in all this legislation has been that it would be unwise and detrimental to permit the promiscuous, unrestricted sale of vinous and spirituous liquors by the small or the drink, and that the privilege should only be granted to the discreet and reputable, and that, too, under the security of bonds and subject to revocation for good cause.

Art. 2459, like a corresponding section in the statute of 1857, demanded that the petitioner for license should support his claim with a recommendation signed by a majority of tbe legal voters of the police district, or of the incorporated city or town that the applicant is of good reputation, and a sober and suitable person to receive a license. Opportunity is given of fully canvassing the matter by allowing counter petitions, etc. Except when the sale by the glass was totally prohibited by the act of 1839, the law from 1822, forward, has always insisted that the privilege should only be granted to a fit person, and the evidence of that under the older statutes should be furnished by six freeholders, or five freeholders, and under the later statutes by a majority of the legal voters of the locality, and under the last amendment of 1874, by a still larger number of persons residing in the district, town, or city, those more immediately affected by it. It would seem that it ought hardly to be questioned at this day that it belongs to the police power of the state to regulate the retail dealing in, and sale of intoxicating liquors. Perhaps all the states have legislated on the subject; some by total prohibition, and others by dealing with the subject under rules and regulations. Such legislation rests on the popular conviction that it is to the interest of morals, sobriety, industry and good order that the state should hold tbe traffic under surveillance.

The state may deal with the subject by absolute prohibition, or by regulations. Bartemeyer v. Iowa, 18 Wall., 129; License Cases, 5 How. (S. C.), 504; Cooley Const. Lim., 581-2-3. The police power extends to wholesome restrictions on property and individuals, in order to secure the general health, comfort and prosperity of the state. The power of the legislature cannot be questioned. Thorpe v. R. & B. R. R. Co., 27 Vt., 149; Commonwealth v. Alger, 7 Cush., 84. If the state may require the recommendation of five or six freeholders, it may enlarge the number to. ten or fifty. In a word, it may, in its discretion, lay down the terms upon which the license may issue. During all the years that these several statutes have been in force, with the many indictments and litigation that have grown out of them, we have been referred to no case that throws doubt or suspicion on their validity. In House v. State, 41 Miss., 737, so far from casting suspicion on art. IV., p. 197-8 of the code of 1857, which is the original of section 2459 of the present code, it was expressly held, that the grant of license “without the petition of a majority of the legal voters resident within the city is null and void. The court says (pp. 742, 743) that the instruction of the circuit court, which embodied that idea, announced a correct principle of law. It will be observed that the statute of 1857 applied more stringent terms to the applicant for license than the former laws, nor was it debated at the bar, or alluded to by the court that it was not as completely in the competency of the legislature to require the petitioner for license to be supported by a majority of voters, as by the few householders, or freeholders under the prior laws.

The statute of 1874 makes a further enlargement of the countenance and support which the applicant must have. He must produce a petition, signed by a majority of the male citizens over twenty-one years, and a majority of the female citizens over eighteen years of age, resident, etc. It would not be controverted if the legislature might require a majority of the legal .voters. It could, in its discretion, have increased the number to two-thirds or three-fourths, or it might have returned to the old statutes and have insisted upon the consent of two-thirds, or a majority of the freeholders or householders. If that be true, upon what rule of constitutional law shall it not be allowed to demand, as in this statute, the consent of a majority of male citizens over twenty-one, and of females over eighteen years of age.

Whether the recommendation and consent of any person resident in the district or town or city shall be obtained or not, or whether the whole matter shall be referred to the judgment of the board of supervisors, or town or city authorities, is purely a matter for the wisdom of the legislature.

However the question may be elaborated, it comes to this complexion at last: Has the legislature the power to regulate the sale of vinous and spirituous liquors ? The answer is, that it has done so from the beginning until now, and no decision has been referred to which so much as doubts the power. These rules and regulations have been variously changed from time to time, at the pleasure of the representative body. Can the judiciary interfere and pronounce judgment on the expediency and fitness of rules which are exclusively committed to the legislative choice and discretion ? A court must be pointed to some provision of the constitution which a statute violates, before it can declare it inoperative. “ As to the policy of legislation, the judiciary have nothing to do; that is wisely left to the lawmaking department. A court only consults the policy of a law, as an aid to attain the legislative meaning and intent.” If a law is touching a subject not given up to the national government, nor prohibited by the federal constitution, nor excepted out of the legislative power in the state constitution, can the judiciary listen to argument founded upon its supposed inutility and inexpediency ? It involves the inadmissible proposition of the judiciary sitting in review upon legislative wisdom and discretion. Donnell v. State, 48 Miss., 679. The premise is that the legislative control over the subject is plenary. If terms are imposed which are harsh and unwisely chosen, the courts cannot interfere to cure or correct legislative indiscretion, nor has it the right or power to suggest other regulations deemed more suitable. The People v. Simeon Draper, 15 N. Y., 545. “ If a particular act of legislation does not conflict with any of the limitations or restrictions of the constitution, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motives that led to its enactment. The remedy for bad legislation is better afforded by frequent removals of the legislative body, than any that can be given by the courts. ”

“ The representative body is entrusted with the responsibility of consulting the public interest and carrying out public policy by the enactment of laws. The power to review their fitness and wisdom does not belong to the courts. In 1857, the legislature said a majority of the voters must petition for the license. In 1874, it has said more than that. The question before the court is not as to the fitness and expediency of the law, but whether the legislature was competent to pass it. The argument made against the validity of the statute of 1874 is, that it submits the question of license or no license to a vote, which, it is urged, involves an abnegation of legislative power, and a devolution of it upon electors, which cannot be done; and, more than that, it authorizes females, some of whom are minors, to have a voice in the election. Is the law fairly obnoxious to that criticism ? It is much freer of that objection than the statute of 1857, under which House’s Case was decided. “ All male citizens over twenty-one ” is a larger denomination than “voters.” It embraces all voters, and many more besides. The inclusion of females over eighteen shows conclusively that the petition for license was not meant to be limited to “ voters,” and that the idea of an “election ” by the class entitled to “ vote” was not in the mind of the legislature. The principle upon which the law rests is, that the license shall not issue unless a majority of the community, who have reached that maturity of mind that qualifies them to judge of the quality of the act and its effects, shall petition for it. Females who participate have attained a marriageable age, and are profoundly concerned that those with whom their future may be linked should be surrounded with influences that contribute to sobriety, thrift and prosperity. That may have been one of the motives of associating them with the males over twenty-one in the right to petition for or against the license. "We are not called upon to say that the conditions are unreasonable. This statute is not framed upon the theory of what are called optional laws. It does not propose to submit the “ question ” to a vote, whether license shall or shall not be granted in the county, or incorporated city or town. The power in the board of supervisors, or the mayor and aldermen, is not made dependent upon a vote in favor of its exercise. The statute grants to these municipal bodies authority to issue license to those applicants who present a petition or recommendation signed by the number of persons named. The application of one person may be thus sustained, whilst another may not be. Just as under the earlier statutes, one person might procure the recommendation of the freeholders and householders, and another might not. As, under the act of 1857, one person might be recommended by the majority of the voters, whilst others might altogether fail. So, too, under any one of these statutes, there might be the requisite recommendation signed; but the party might fail of his license from inability to give the bond.

The parallel of the statutes of 1857, of 1871, and the amendment of 1874, is found in the act of 1833, in reference to the leasing of the sixteenth section (the school lands') leases for ninety-nine years which should be granted by the township trustees, on a request of “ a majority of the resident heads of families ” (minors not excepted). Here the act could be done on “ consent obtained ” of heads of families, including minors, Some of these heads of families might be females, aliens.

Under the statute of 1822, and the early amendments, the freeholders or householders who vouched for the petitioner for license might be females, adults or minors. The statutory qualification was “freeholders” or “householders.”

Legislation on this subject has been tested in various forms. Perhaps experience has shown that the police power of the state, whether put forth in the form of prohibitory laws, or in subjecting the retail traffic to regulations and restrictions, has not been able to suppress intemperance.

The general policy has been to entrust the sale of intoxicating liquors by the drink to those only who could procure evidence of good reputation, and then to put them under bonds, and surround them with such checks as would best provide against excesses and abuses.

A wisely regulated license system is perhaps the best that the state can do.

Whether the existing law is of that character is not our province to say. The rest may be left to those religious and moral influences which continually advance and improve our civilization.

There is no error in the judgment; let it be affirmed.