Ex Parte Nash , 55 Nev. 92 ( 1933 )

The fourteenth amendment to the constitution of the United States, and article I, sections 1 and 8, of the constitution of the State of Nevada, both serve to fix the limits which may not be transcended by valid legislation under the guise of police power. 12 C.J. 929, 931, 932; McQuillin Municipal Corporations (2d ed.), vol. II, pp. 713, 716, 717, 718-720, 721-722, 729.

It has been held that competition between vendors of ordinary merchandise may not be eliminated in furtherance of public welfare. New St. Ice Co. v. Liebmann, 285 U.S. 262, 76 L.Ed. 747.

Also, it has been held that it is beyond the power of the state, under the guise of protecting the public, arbitrarily to interfere with private business, or prohibit lawful occupations, or impose unreasonable and unnecessary restrictions upon them. Jay Burns Bkg. Co. v. Bryan, 264 U.S. 504, 68 L.Ed. 813; Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 73 L.Ed. 204.

Here an inspection of the ordinance in question, in the light of the common knowledge possessed by all men, clearly reveals that it is unreasonable, arbitrary and oppressive. It is the contention of the petitioner that the ordinance has no natural tendency to accomplish any purpose within the police power of the city; that it is arbitrary; that it is for the purpose of restricting competition; that it is confiscatory; and, finally, that it is for the exclusive benefit of particular individuals or classes. That an ordinance cannot be declared unreasonable which is expressly authorized by the legislature is held in Ex parte Noyd,48 Nev. 120, 227 P. 1020; and hence, the legislature having authorized the city of Reno to pass an ordinance of this kind, its reasonableness cannot be questioned.

Legislation regulating the sale of cigarettes and tobacco has been held in a number of cases to be within the police power of the legislative body. State of Kansas v. Mossaman, 107 Kan. 715,193 P. 347; State of North Dakota v. Olson, 26 N.D. 304,146 N.W. 661; Gundling v. City of Chicago, 176 Ill. 340, 177 U.S. 183,44 L.Ed. 725, 20 Sup. Ct. 633; Austin v. State, 101 Tenn. 563,179 U.S. 343, 45 L.Ed. 224, 21 Sup. Ct. 132.

The rules of construction applicable to statutes are also applicable to city ordinances. Carson City v. Red Arrow Garage Auto Co., 47 Nev. 473.

Therefore this court does not have to inquire strictly into the motives or reasons for the ordinance in question. State v. Olson, supra; Ex parte Boyce, 27 Nev. 299, 75 P. 1; Worthington v. District Court, 37 Nev. 214, 142 P. 230; Soon Hing v. Crowley,113 U.S. 703, 5 Sup. Ct. 730, 28 L.Ed. 1145.

This ordinance is not unreasonable; it acts upon one subject, which is subject to police regulations, and acts upon all persons the same. In other words, any person may sell cigarettes by obtaining a proper license, if they do not also sell narcotics or other poisonous drugs. McQuillin on Municipal Corporations, vol. II, p. 1602, sec. 738; Soon Hing v. Crowley, supra.

The court must presume that a city ordinance was adopted to accomplish some end, and not with a view of going through mere idle form. Carson City v. Red Arrow Garage Auto Co., supra.

OPINION This is an original proceeding in habeas corpus. The matter is before the court upon the petition for the writ and the return made thereto. The undisputed facts are as follows:

The Schramm-Johnson Company owns and conducts a drug store or pharmacy in the city of Reno. In addition to its usual stock in trade, the company deals in cigarettes. Fred P. Nash, presumably a registered pharmacist, is the manager in charge of the business of the company. During the month of June last the common council of the city of Reno adopted an ordinance which prohibits and makes it a misdemeanor for any person, firm, association, or corporation to keep, sell, or otherwise dispose of cigarettes in any place of business within the city of Reno where narcotic drugs or poisonous drugs or concoctions or mixtures thereof are kept for sale or otherwise disposed of. The ordinance is exceptional, in that it purports to give the reason or the occasion for the enactment, stated in its preamble to be as follows:

"Whereas, cigarettes containing narcotic and poisonous drugs are being sold and distributed within the City of Reno; and

"Whereas, the handling of cigarettes in places where narcotic and poisonous drugs or concoctions or mixtures thereof are also handled makes readily possible the addition of such narcotic or poisonous drugs or concoctions or mixtures thereof to cigarettes, and more readily enables the sale and disposal of said cigarettes containing said narcotic or poisonous drugs or concoctions or mixtures thereof, and thereby endangers the health, comfort, safety, life and welfare of the inhabitants of the City of Reno:

"Now, therefore, * * *"

While the ordinance was in force, Fred P. Nash, the manager in charge of the business of the Schramm-Johnson Company, did sell and offer for sale cigarettes. A complaint was filed in the justice's court of the city of Reno charging him with the violation of the ordinance. Upon the filing of said complaint a warrant for his arrest was issued and served. While in custody Fred P. Nash filed a petition in this court for a writ of habeas corpus to issue, claiming that the only pretext for his arrest and detention was his admitted violation of said ordinance, which he alleged deprives him of his liberty and property without due process of law, in contravention of the fourteenth amendment of the constitution of the United States, and a similar provision of the constitution of the State of Nevada (section 8, art. 1), and in contravention of other provisions of the constitution of the State of Nevada respecting the privileges and immunities of citizens, and for these reasons only the petitioner should be discharged from custody.

1. The ordinance is assailed upon practically all of the grounds common to legislation which in any manner interferes with private business or lawful occupations. The difficulty with the argument is that the petitioner's business and employment continues uninterrupted after, as before, the enactment. In point of fact, the ordinance deals with but a relatively small feature of the business, namely, that of cigarettes, which, in point of law, like the business itself, is clearly within the scope of the police power.

The petitioner argues that his is a lawful business and occupation and to deprive him of the right to deal in cigarettes as an article of trade is an unreasonable, arbitrary, and capricious restraint on his liberty.

2-5. That a city ordinance or police regulation forbids acts theretofore innocent and lawful affords no grounds for holding such a legislation either void or unreasonable. Des Moines v. Manhattan Oil Co., 193 Iowa, 1096,184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1333. The factual foundation for the ordinance is that cigarettes containing narcotic and poisonous drugs are being sold and distributed within the city of Reno. Assuming, as we must, this to be the fact, any legislation reasonable in aim and intent to suppress the publicly notorious evil cannot be overthrown upon the ground that it is unreasonable, arbitrary, and capricious. The due process of law clause of the constitution sets no limitation on the exercise of the police power to suppress and prevent the use of cigarettes or of any article of trade to aid and facilitate the sale and use of dangerous and habit-forming drugs.

6-9. It is argued on behalf of the petitioner that there is no fact present in the ordinance itself or in the record to justify making it a crime for one class of merchants to deal in cigarettes and not to make it a crime for other dealers engaged in the same business. The ordinance supplies a reason for the discrimination, namely, that the handling of cigarettes in places where narcotic and poisonous drugs are sold or otherwise disposed of makes readily possible the addition of such drugs to cigarettes and more readily enables the sale and disposal of cigarettes containing such drugs. The learned counsel for the petitioner insists that in view of the evil found to exist the reason assigned for the prohibitive feature of the ordinance is whimsical, fanciful, conjectural, illusory, and palpably arbitrary and discriminatory. In answer to these objections we quote from the case of Rast v. Van Deman Lewis Co.,240 U.S. 357, 36 S.Ct. 370, 374, 60 L.Ed. 679, L.R.A. 1917A, 421, Ann. Cas. 1917B, 455:

"The legislation which regards the difference is not arbitrary within the rulings of the cases. It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed. * * * It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. * * *

"It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury, but obstacles to a greater public welfare."

No principle of the constitution of the United States or of the State of Nevada being violated by the enactment of the ordinance, it is ordered that the writ be and it is discharged, and that the petitioner be and he is remanded to the custody of the chief of police of the city of Reno.