State ex rel. Jones v. Board of County Commissioners , 18 Wyo. 153 ( 1909 )

Beard, Justice.

The relator, Hayden E- Jones, applied to the Board of ■County Commissioners of Natrona County for a retail liquor dealer’s license at a place in said county outside of •any incorporated city or town. The Board refused to issue the license, on the sole ground that it was prohibited by law from issuing such license. The relator then commenced this proceeding in mandamus against said Board, in the District Court of said county, to compel it to issue ■a license. A general demurrer was filed by said Board to the petition of relator, and an agreed statement of the facts was entered into by the parties, from which it appears that prior to February 15, 1909, the date of his application, the relator held a license as a retail liquor dealer at the place mentioned in his application, which license would expire April 3, 1909; that his application was in due form; that he was a proper person to receive a license; that he had been to considerable expense in fitting up his place where he was then conducting his saloon and had on hand a quantity of liquors; and that his property would be greatly depreciated in value if he was not granted a license. That several other persons held licenses in said county outside of any incorporated city or town which would not expire for some months after that of relator. It was further stipulated, for the purposes of this case only, that the relator’s right to the relief prayed depends solely upon the question of the constitutionality of Chapter 7, Session Laws 1909. The case was presented to the District Court upon the petition, demurrer thereto and the agreed statement.

The court, considering that important and difficult constitutional questions arise in said cause, upon its own motion and by request of the respective parties, reserved and has certified to this court- for its decision the following questions, viz.:

“i. Does Chapter 7, of the Session Laws of Wyoming, 1909, contravene the provisions of Article I, Section 34, of the Constitution of the State of Wyoming, which provides that all laws of a general nature shall have a uniform operation ?

“2. Does Chapter 7, of the Session Laws of Wyoming, 1909, contravene the provisions of Article I, Section 6, of the Constitution of the State of Wyoming, which provides that no person shall be deprived of life, liberty or property without due process of law?

“3. Does Chapter 7, of the Session Laws of Wyoming, 1909, contravene Article III, Section 27, of the Constitution of the State of Wyoming, which provides that: ‘The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: Regulating county or township affairs; granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever, or prescribing the powers or duties of offices in counties. In all other cases where a general law can be made applicable, no special law shall be enacted’ ?

“4. Is Chapter 7, of the Session Laws of Wyoming, 1909, constitutional and valid, or is it unconstitutional and void ?

“5.. Are the provisions of Chapter 7, of-the Session Laws of Wyoming, 1909, now in full force and effect, or are they void and of no effect ?

“6. Is Section 2, of Chapter 43, of the Session Laws, of Wyoming, 1901, now in full force and effect?”

Chapter 7, Session Laws 1909, is as follows:

“Section 1. That Section 2163 of the -Revised Statutes of Wyoming, 1899, as amended by Section 2 of Chapter 43 of the Session Laws of 1901, be and the same is hereby amended and re-enacted so as to read as follows:

“Section 2163. Before any license shall be granted for the sale of liquors, the applicant therefor shall file his written application for such license in the office of the county clerk. Said application shall contain a full and accurate description of the building in which liquors are to be sold, and a full and accurate description of the premises on which such building is located. All applications for county license ■ shall be heard at the second regular meeting of the Board of County Commissioners which shall occur subsequent to the filing of the application. Provided, however, That in counties in which the Boards of County Commissioners are not required by‘ law to meet monthly, notice of such application with a full and accurate description of the buildings and premises where liquors are intended to be sold, shall be given by publishing the same for four weeks successively in some newspaper published and of general circulation in the county, or if no newspaper is published therein, by posting for four weeks as aforesaid written or printed notices in five of the most public places in the vicinity of the said premises and such application in such county shall be heard at the next regular meeting of the Board of County Commissioners after the completion of said time. All county licenses shall be granted by the Boards of County Commissioners of the several counties, and they shall have power to grant licenses only to persons of good moral character who are freeholders in this State. Provided, That said Board shall refuse to grant any license or extend any existing license for the sale of liquors at any place outside of incorporated cities and towns.

“Sec. 2. This act shall take effect and be in force from and after its passage.

“Approved February 9th, 1909.”

It is conceded by counsel for relator in their brief that “statutes prohibiting sales of intoxicating liquors in certain localities are not in violation of any State or Federal constitutional provisions, provided they apply equally to all persons within the territorial limits prescribed in the statute.” It was held by this court in Noble v. City Council of Cheyenne, 7 Wyo. 417, that the sale of intoxicating liquors at retail might be restricted, limited or prohibited within designated limits. And that seems to be the settled law on that question. See Grumback v. Lelande (Cal.), 98 Pac. 1059, and cases there cited. The case is also in point on other questions in the case at bar.

It is contended by. counsel for relator that Chapter 7 contravenes the provisions of Article I, Section 34 of the Constitution of the. State, which provides that “all laws of a general nature shall have a uniform operation.” The statute operates equally and uniformly in all territory outside of incorporated cities and towns, that is to say, within the restricted district; and no territory within such district is excepted. It has not been pointed out or are we able to see wherein the law fails to operate uniformly within the prohibited territory.

It is also urged that the statute contravenes Article I, Section 6, of the Constitution, which provides that “nc* person shall be deprived of life, liberty or property without due process of law.” We do not regard that as now an open question. It was held in Mugler v. Kansas, 123 U. S. 623, that the laws .of that state prohibiting the manufacture and sale of intoxicating liquors did not violate the provisions of the Fourteenth Amendment to the Constitution of the United States declaring, “nor shall any State ■ deprive any person of life, liberty, or property, without due process of law.” If the law of Kansas did not deprive Mugler of his property without due process of' law, neither does the statute under consideration deprive the relator of his property without due process of law within the meaning of our Constitution. To enter upon a discussion of that question here would be merely to repeat what was said in that case and to add words to what was there finally settled, and has been, so far as we are advised, uniformly-followed.

The chief contention of counsel for relator is, however,, that the statute violates the provisions of Article III, Section 27, of the Constitution, which provides that “the Legislature shall not pass local or special laws in any of the following cases, * * * regulating county or township affairs; * * * granting any corporation, association or individual, the right to lay down railroad tracks, or any special or exclusive privilege, immunity or franchise whatever, * * * In all other cases where a general law can be made applicable no special law shall be enacted.” It is urged that because certain persons within the territory outside of incorporated cities and towns held unexpired licenses at the time the statute went into effect, that it created a privileged class and granted privileges to one class which it denied to others similarly situated. It was said by this court in the Noble case, supra, “It is a fundamental principle that there is no inherent right in a citizen, or any one, to sell intoxicating liquors by retail, and that there is not a vested right in any person to have a liquor license.” And in New Orleans v. Smythe, 116 La. 685, 41 So. 33, 6 L. R. A. (N. S.) 722, “It must be remembered that no person has a vested constitutional right to retail intoxicating liquors and that the power of the lawmaker to prohibit or regulate such an occupation is practically unlimited. It has been held that the Regislature may confine the sale of intoxicating liquors to certain places, and may limit the number of licenses in any given locality.” In the case last cited and quoted from, an ordinance of the City of New Orleans which provided “that hereafter it shall not be lawful for anyone to set up or establish any barroom, * * * without permission of the city council previously applied for in writing, which shall be accompanied by the written consent of a majority of the bona fide property holders within 300 feet,” etc., was attacked on the ground that it discriminated in favor of persons conducting barrooms already established at the date of its adoption. But the Supreme Court of that State held that the parties were not similarly situated; the one having a right, at the time, recognized by law, and the other a mere hope or expectation of embarking in the same calling at a future day, and held the ordinance valid.

The case of Mandeville v. Band, 111 La. 806, is much relied upon by counsel for relator. It is said of that case in the note to New Orleans v. Smythe, 6 L. R. A. (N. S.) 722, supra, “the exact point discussed in New Orleans v. Smythe, as to whether a law is valid which discriminates in favor of saloons and barrooms already established, has not frequently arisen, but where it has, the rule seems to be generally that such discrimination does not' invalidate the law. The case of Mandeville v. Band, 111 La. 806, 35 So. 917, appears to be the only case which holds the contrary view:” And in Com. v. Petri, 28 Ky. L. Rep. 940, 90 S. W. 987, a statute prohibiting the sale of liquors by persons without a license, except keepers of taverns then existing upon a designated road, was held valid. And in Sandys v. Wililams, 46 Ore. 327, 80 Pac. 642, an ordinance of the City of Portland providing that “no person engaged in selling spirituous, malt or fermented liquors or wines in quantities less than one quart in any saloon, barroom or restaurant in the city of Portland, shall sell any liquor to be delivered or used or that shall be delivered or used in any side room, back room, upper room or other apartment in the same or an adjoining building, and shall not maintain therein or connect therewith any alcove, booth or box * * * provided, that nothing herein contained shall prohibit the serving of such liquor to guests in a hotel having a valid license to sell the same,” was held to be valid. In the opinion Mr. Justice Moore quotes with approval the following from White v. Holman, 44 Ore. 180: “However partial it may seem, the State can create a monopoly of any business that may lawfully be prohibited by it on the grounds of public policy, without violating any constitutional inhibition, because no person possesses an inherent right to engage in any employment, the pursuit of which is necessarily detrimental to'the public.” And in Decie v. Brown, 167 Mass. 290, a statute limiting the number of licensed places to one for each one thousand of the population was held valid. The court said: “Such statutes are upheld because the resulting exclusion of unlicensed persons is not designated to confer on those who are licensed an exclusive benefit, privilege or right, and where that result does follow it is merely the collateral and incidental effect of provisions enacted solely with a view to secure the welfare of the community” (citing cases). “The limitation of the number of licensed places within the territory of a town or city is a reasonable exercise of the police power, and. therefore is not in conflict with the Constitution of the commonwealth or the Fourteenth Amendment to the Constitution of the United States.” Citing: Commonwealth v. Bennett, 108 Mass. 27; Com. v. Dean, 110 Mass. 357; Com. v. Fredericks, 119 Mass. 199; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Mass., 97 U. S. 25; Crowley v. Christensen, 137 U. S. 86; Geozza v. Tierman, 148 U. S. 657.

But we are not without an authority upon the precise question under consideration. (Andreas v. City of Beaumont, 113 S. W. 614, Court of Civil Appeals of Texas.) The facts of that case were exactly the same as those in the case at bar, and that court said: “Appellant attacks the ordinance on the further ground that, inasmuch as, by its terms, it did not interfere with two other persons who were also engaged in the saloon business without saloon limits, for the period of six and ten months respectively, after the adoption of the ordinance, while he was denied the right to continue the business after a little less than three months after the ordinance was passed, at which time his license expired, was such unjust and unreasonable discrimination against him as to render the ordinance void. The facts disclose that, at the time of the adoption of the ordinance, appellant and two others were conducting saloons in the territory without the prescribed limits under licenses theretofore procured. The ordinance expressly undertook to protect alike all persons who, in good faith, had paid for and obtained license to conduct saloons without the limits, in order to avoid a forfeiture. No license has been issued to any person to sell without the limits since the ordinance went into effect. The ordinance applied to and affected all those not in the saloon limits alike, in that it permitted each to carry on his business as long as the license permitted him to do so. When appellant’s license expired, he was bound to quit. When the licenses held by the two others expire, they are bound to quit; and the fact that the ordinance, instead of working a forfeiture of the license, as it probably could have done, permits each licensee to continue his business until his license expired by its own limitation, does not unreasonably discriminate against appellant because his happened to expire first. (Commonwealth v. Petri, 90 S. W. 987, 28 Ky. Law Rep. 940.)” In that case the ordinance went farther than the statute we áre considering, in that, by express terms, it authorized those holding unexpired licenses to continue in business until such licenses expired. Our statute does not do so in terms, and all that can be reasonably claimed for it is, we think, that by implication it does so. As between those holding licensés and all others it makes no distinction or discrimination so far as obtaining licenses in the future is concerned. Granting that the effect of the statute is to permit those holding licenses outside of incorporated cities and towns the right to continue in business until their licenses expire, the further effect of the statute is simply to limit the number of licensed places during that period, which the Legislature had power to do.

We are of the opinion that Chapter 7 of the Session Laws of 1909 does not violate any of the provisions of either the State or Federal Constitution, and is constitutional and valid. So holding, it becomes unnecessary to return specific answers to the several questions reserved.

PoTTER, C. J., and Scott, J., concur.