DocketNumber: Civ. No. 1194.
Citation Numbers: 140 P. 49, 23 Cal. App. 778, 1914 Cal. App. LEXIS 285
Judges: Hart
Filed Date: 2/12/1914
Status: Precedential
Modified Date: 11/3/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 780 This is a petition for a writ of prohibition to restrain the above named respondents from "taking any further proceedings pending in the case of the People of the State of California, Plaintiff, v. Golden Company, a corporation, in said justice's court, and from hearing, determining, passing upon, trying or deciding any proceeding in said case," etc. etc.
This proceeding arises by reason of the filing of a complaint, on the twenty-first day of June, 1913, in the respondent court, by the district attorney of Yolo County, charging the petitioner with the violation of section 15 of the Local Option Law, popularly known as the "Wyllie law," and passed by the legislature of 1911. (Stats. 1911, p. 599, et seq.) The specific charge against the petitioner is that it solicited the sale of certain alcoholic liquors within the limits of the city of Woodland, a municipal corporation, it being admitted by the petitioner, for the purposes of this case, that, prior to the time at which the petitioner is alleged to have committed the offense with which it is charged in the complaint objected to here, at an election, held in said city, in pursuance of the provisions of said local option law, the electors voted in favor of the application of the provisions of said law to the territory embraced within the corporate limits of said city and thus declared *Page 781 that said municipality should thereafter be no-license territory.
From the petition in this proceeding it appears that the petitioner "is and was at all the times herein mentioned a corporation duly organized and existing under and by virtue of the laws of the state of California; that its principal place of business is in the city and county of San Francisco, in said state of California, and is and at all times herein mentioned was lawfully engaged in the business of selling, furnishing and distributing alcoholic liquors." It is further alleged that said petitioner was not at any of the times mentioned in the complaint filed against it "a person, company, association or club being or existing within the limits of the county of Yolo"; that it has no place of business within the limits of the said county of Yolo, but, "as said complaint shows upon its face, has its principal place of business in the city and county of San Francisco," etc.; that, "as appears upon the face of the said complaint the said alleged violation of the said act consisted solely of the mailing of certain letters, price lists, and an order sheet at the city of San Francisco, . . . addressed to a resident of the city of Woodland, in said county of Yolo, the said circular letter, price lists and order sheet constituting an advertisement of certain alcoholic liquors offered for sale by your petitioner; that it appears upon the face of the said complaint that all and singular the acts constituting the alleged offense as aforesaid were committed wholly in the city and county of San Francisco, . . . and wholly without the said city of Woodland and the said county of Yolo." The petition then alleges that it does not appear upon or from the face of the complaint that the offense, purporting to be therein and thereby charged against the petitioner, or that any offense whatever, was committed within the limits of the county of Yolo or within the jurisdiction of the said court of Woodland township; "that the said court of Woodland township has no jurisdiction of your petitioner or of the attempted criminal proceeding."
The complaint filed in the respondent court against the petitioner and to restrain proceedings under which this proceeding is instituted is made a part of the petition and attached thereto. *Page 782
It is charged in said complaint that, on or about the twenty-eighth day of May, 1913, the defendant corporation mailed a letter at the city of San Francisco addressed to a Mr. James Monroe, at Woodland, California; that said letter, which characterized itself as a "circular," contained an offer, designated therein as "our final offer," to consign to the said Monroe, at any time within thirty days from the date of the letter, "one full quart of this fine 'Old Reserve' whiskey, by return express, for only 50 c.," (no doubt meaning fifty cents). Said circular letter then proceeds: "This is a special introductory offer we are making to NEW customers only — and if YOU have never tried 'Old Reserve' Whiskey — we want you to try it NOW. We want to Show you. We want to place some of our fine 'Old Reserve' Whiskey before you so you may know how rich, pure and delicious it really is — and here's the greatest offer you ever heard of. __________ Send us 50 cents — that's All and we will send you a full quart bottle of our fine 'Old Reserve Whiskey — in a strong, plain case, by return express. __________ Remember — It's Pure Kentucky Whiskey and every bottle has our absolute guarantee that it is fully aged and full measure — as good and pure as it is possible to produce. __________ You take no chances. Our guarantee is fair and square — it means what it says — we must send you a quality that will please you in every way — and we will do it. __________ We lose Money shipping one quart means a loss to us — but we want your trade — and we know when you have tried this whiskey, you will be so pleased with it, that you will send us your future orders for at least a gallon at $3.60 or four full quarts for $4.00 and then we pay all the express charges. __________ A Wonderful offer. No one else offers a single quart of whiskey at our price of 50 cents a quart — no one else would be willing to lose money on a one quart shipment as we are doing simply to prove our claims for 'Old Reserve'. __________ Take us up on this offer — order this whiskey — try it — use all you want — and if you don't find it all we claim — the finest you ever tasted and the greatest value you ever saw — we will return your money together with all express cost without a word. __________ Now, Rush Your Order. Cut out this coupon — fill it in — and mail it to us with 50 cents in stamps, coin or money order — and the full quart of fine 'Old Reserve' Whiskey will go by first express. You must pay express charges on this *Page 783 single quart shipment. The cost is small — only 25c to 50c, according to distance from San Francisco, but no matter how much expressage you paid, you will get a wonderful bargain. Golden Co. 130 Pine St. San Francisco, Calif.
"Golden Company. Not good after 30 days."
Accompanying said letter were the price lists of the various brands of whiskies and wines and "miscellaneous liquors" handled and sold by the petitioner and an order sheet, in blank, to be used by the party to whom the letter was addressed, if he elected to purchase any of the liquors referred to in the letter and the price lists.
Manifestly, the ultimate question presented here, as is stated in the petition as well as is necessarily implied from the nature of this proceeding, is one of jurisdiction. That the respondents, as a magistrate's court and the presiding magistrate thereof, are wholly without legal authority or jurisdiction to examine the charge set forth in the complaint assailed by this proceeding, is sought to be sustained upon the following grounds: 1. That, within the meaning of the language of the Local Option Law, there can be no solicitation of orders for the sale of alcoholic liquors within no-license territory unless the sale and delivery of such liquors are made or intended to be made within such no-license territory; 2. That section 15 of said act contemplates and intends that the solicitation interdicted thereby must be prosecuted in person within such territory by the persons or corporations, etc., mentioned in said section; or, in other words, that the solicitation contemplated by the section cannot be effectuated except it be done in person by such persons or corporations themselves or their agents, which proposition implies, of course, that they or their agents must be physically present within such territory when such solicitation takes place.
In addition to the points above specified, it is urged by Messrs. Golden and Pritchard, in a brief filed by them asamici curiae, that section 15 of said act contravenes certain constitutional guaranties.
Section 15 of the Local Option Law reads as follows: "It shall be unlawful for any person, company, association or club, within no-license territory, to solicit orders, take orders or make agreements for the sale or delivery of alcoholic liquors;provided, that this shall not apply to the taking of such orders *Page 784 from a registered pharmacist at his place of business, or to the taking of orders for alcoholic liquors on the premises where stored or manufactured, under the conditions stated in section 16 hereof."
Section 16 provides: Nothing in this act shall be interpreted as rendering it unlawful to keep alcoholic liquors for distribution, or to sell or distribute such liquors, in no-license territory in the manner following: 1. The serving of such liquors by any person at his own home to members of his family or to his guests, as an act of hospitality, when no money or thing of value is received in return therefor, and when said home is not a place of public resort; 2. The serving or dispensing of such liquors by a registered pharmacist forbona fide medical purposes, upon certain specified conditions, among which is that such liquors so dispensed shall not be drunk upon the premises where dispensed; 3. The selling of alcohol by a registered pharmacist for other than beverage purposes, upon certain designated conditions; 4 and 5. The selling of wine by a regularly licensed pharmacist for sacramental purposes only, on certain conditions, and the distributing of wine, at the sacramental service of any religious organization; 6. "The keeping of alcoholic liquors at cellars, vaults or warehouses, receiving orders at such cellars, etc., for said liquors, and the shipping of the same therefrom; provided, said liquors are not distributed or delivered to any person or place in no-license territory within the county in which such cellars, etc., are located, except when delivered to a common carrier for shipment to a place outside of no-license territory; 7. The keeping of alcoholic liquors on the premises where manufactured, receiving orders at said premises for such liquors, and the shipping of the same from such premises; provided, said liquors are not distributed or delivered in no-license territory within the county in which such premises are located in quantities of less than two gallons, and are not delivered to any person, or place in such territory within said county except as follows: (a) to a common carrier for shipment to a place outside of said no-license territory; (b) to other manufacturers of alcoholic liquors at the premises where they manufacture such liquors; (c) to cellars, vaults or warehouses where such liquors are stored or distributed as provided in the sixth paragraph of this section; (d) to any person at his or *Page 785 her permanent residence; (e) to registered pharmacists at their place of business."
It will be observed that section 15 exempts from its operation, to the extent of taking orders for alcoholic liquors, registered pharmacists and those places where such liquors are stored or manufactured, as provided by paragraphs 6 and 7 of section 16. There is no exception made as to the soliciting of orders, unless it may be said (and perhaps it may reasonably be so held) that such authority is necessarily implied from the provision that such orders may be taken from registered pharmacists. The provision authorizing the taking of orders on the premises where alcoholic liquors are stored or manufactured undoubtedly has reference to sales by the manufacturers of intoxicants, and does not, therefore, authorize the soliciting or taking of orders for such liquorsfrom them, to be delivered to them. It is quite clear, then, that, except possibly as to registered pharmacists, regularly licensed to engage in the prosecution of their business in no-license territory, no one has a legal right to solicit or take orders for intoxicants from persons within such territory.
Now, as above indicated, the first point urged by the petitioner is that the provisions of the Local Option Law do not and were not intended by the legislature to prohibit the solicitation within no-license territory of orders for the sale or delivery of alcoholic liquors, unless the liquors to which such solicitation relates are to be delivered within such territory. Indeed, the contention goes so far as to involve the maintenance of the proposition that, while the legislative department of the government may, in the exercise of the police power, prohibit the solicitation or the making of agreements for the sale of intoxicating liquors within no-license territory where such liquors are to be delivered therein, legislation inhibitory of such solicitation or the making of such contracts within no-license territory, where the liquors are to be delivered outside the limits of such territory, would be invalid as in restraint of trade or in contravention of the right of contract.
In the case of Ex parte Anixter,
From the foregoing authorities and many others which might be mentioned, I concluded that, if it be within the power of the states to prohibit the soliciting of orders for the sale of intoxicating liquors within their territorial limits, regardless of where such liquors were to be consigned or delivered, it was equally within their right in the exercise of the supreme control which it must be conceded that they possess over the subject of intoxicating liquors, to delegate like power to the municipalities within their borders (Const., art. XI, sec. 11), or to other of their political subdivisions, whose electors may themselves, by virtue of legally exercisable authority, invoke the application, within their respective jurisdictions, of the provisions of a general law, which determines the extent and conditions to and upon which such liquors may be used. (Stats. 1911, p. 599.)
The foregoing observations, let it be understood, are not here made for the purpose of overthrowing the position of the petitioner in this proceeding upon the question to which they relate or of confuting the argument advanced in support of said position; but they are merely ventured as explanatory of the reasons which led to what now appears from a recent decision of our supreme court, to have been an erroneous conclusion reached by this court in the Anixter case, as to the point referred to. The former court, in the case of Ex parte Anixter,
I take it that the principle thus enunciated is no less applicable to the Local Option Law where the provisions thereof are invoked by the electors of a municipality or of any other territory in the state to which the provisions of said law may be made to apply than to a municipal ordinance, and that, therefore, although the Local Option Law has been adopted by the electors of the city of Woodland and its provisions made applicable to the territory embraced within the incorporated limits of said city, the act of soliciting orders or making agreements within said city for the sale or delivery of intoxicating liquors cannot be prevented or penalized, where the intoxicants as to which such solicitation is prosecuted or agreements are made are to be delivered without or beyond such incorporated limits.
The proposition thus decided, however, is of no importance here, so far as is concerned the decision of the question presented for determination in this proceeding. As before stated and as is obvious, the sole question submitted here is whether the respondents have jurisdiction of the subject matter of the complaint and of the person of the petitioner. It is true that, while the complaint charges that the solicitation was carried *Page 791
on within the incorporated limits of Woodland, it does not directly appear from or upon the face of that document where the liquors to which such solicitation related were to be delivered — whether within or without the limits of said city. But the complaint nevertheless states an offense of which the respondents have jurisdiction, not as a justice's court and the justice thereof, but as a magistrate's court and a magistrate, since the penalties prescribed for a violation of the provisions of the act are in excess of those within the power of a justice's court to impose under the law. (Pen. Code, sec. 1425.) The language of the complaint is, in other words, so far as the element of the offense of which I am now speaking is concerned, in the language of the statute, and, abstractly viewing it, the complaint alleges facts constituting a charge which the respondents, as a magistrate's court and a magistrate, have the legal authority to preliminarily examine and to pass upon for the purposes of such hearing (assuming, of course, that the solicitation of orders by mail is an act which comes within the inhibitions of the statute), and it is sufficient to charge the offense in the language of the statute; for it would be a perfect defense to the charge of soliciting and "the defendant would be completely exonerated" if, either at the examination or the trial, he should make "a showing that in fact the delivery was not to be made within the territorial limits of the town." (Ex parte Anixter,
The next point urged against the validity of the proceedings pending before the respondents is, as seen, that the crime of soliciting orders, taking orders or making agreements within no-license territory for the sale or delivery of intoxicants therein cannot be committed, within the contemplation of section 15 of the statute, unless such solicitation or making of agreements be carried on within such territory in person by a party or his agent. In other words, the contention is that, to constitute either or any of the offenses denounced by said section, the party charged or his agent must be shown to have been physically present within the no-license territory and there in person have solicited or taken such orders or made such agreements. This construction of said section is arrived at by a grammatical analysis of the phraseology thereof, whereby, considering the construction concretely, it *Page 792 is sought to be established that the legislature intended the language of the section to be understood as it may be paraphrased as follows: "It shall be unlawful for any person, corporation, firm, company, etc., being at the time within no-license territory, to solicit orders, take orders or make agreements within such territory for the sale or delivery of alcoholic liquors," etc.
In support of the construction thus arrived at, it is asserted that, grammatically, the phrase, "within any no-license territory," as used in the section, "necessarily qualifies the series of nouns commencing with the word, 'person' (as used therein), rather than the verb, 'solicit,' or the still more remote phrase, 'for the sale or delivery.' " As sustaining that theory of the legislative intent, so far as said section is concerned, attention is directed to the rule laid down in section 73 of Black's "Interpretation of Laws" as follows: "As a general rule, relative, qualifying or limiting words or clauses in a statute are to be referred to the next preceding antecedent, unless the context or the evident meaningof the enactment requires a different construction." (The italics are mine.) Or, as the rule is stated in Piper v. Bostonetc. R. R.,
Not only by implication, from the fact of their reliance upon the rule of interpretation above quoted, do counsel for the petitioner concede that the construction of laws or contracts according to strict grammatical rules will not prevail where such construction is clearly opposed to the context or evident spirit or purpose of such laws or contracts, but they expressly admit the soundness of the proposition in their brief. They vigorously contend, however, that their construction of section 15 is in perfect harmony with the spirit and purpose of the local option law. The argument is that the sole and paramount object of said law is, as is claimed to be true of all laws licensing, regulating, or prohibiting the sale of liquor, to control, regulate, or prohibit the public traffic in intoxicants; that it is directed against the saloons and places where intoxicating liquor is sold and drunk upon the premises; that the act does not, even if it were competent for the *Page 793 legislature so to ordain, attempt to "control or direct individual use of liquor, since it expressly exempts from the operation of its penalties, the act of keeping intoxicants at one's home in no-license territory for family use or the purposes of hospitality; that, therefore, the solicitation for orders for intoxicants to be used for such purposes is an essential incident of said right."
But, so the argument runs, even assuming that the soliciting of orders from individuals within no-license territory was intended to be and is proscribed, since the law cannot punish for sales of liquor committed outside of such territory, "it cannot be presumed that the usual and ordinary incidents of sales are prohibited. Accordingly," so it is then declared, "it is the personal soliciting by those within the territory rather than advertising or the mailing of circulars by those outside the territory that is sought to be prevented."
I cannot agree with the petitioner in its construction of seation 15 of the Local Option Act, nor am I impressed with the various arguments offered in support of such construction, some of which are briefly given in the foregoing statement of its conception of the intent and scope of said section. It may well be conceded that the language of said section, when tested solely by the strict rules of grammar, appears, upon its face, to be involved in some obscurity. At any rate, it can be said that the legislative intent as to the scope of the section could well have been expressed with a greater degree of perspicuity, or, in other words, its phraseology so arranged as that there would be left no ground upon which there could exist any difference of opinion as to what I conceive must be its true import. But, when examined under the test of familiar rules of statutory construction, aided by the light afforded by the vital object which is obviously sought to be accomplished by the legislation of which it forms a part, no doubt can reasonably arise that said section was intended by the legislature to prevent, if possible, or to penalize, if committed, the solicitation of orders, the taking of orders or the making of agreements within no-license territory for the sale or delivery of intoxicating liquors in such territory, irrespective of the manner in which such acts may be accomplished. By this I mean to say that one who solicits orders or makes agreements through the instrumentality of letters, *Page 794 sent to the addresses in no-license territory of persons residing or being therein, thus brings himself as clearly under the ban of the statute as if he were to prosecute such solicitation or make such agreements in person within the boundaries of such territory.
A fundamental canon of construction is that every statute must be construed with reference to the object intended to be accomplished by it. (People v. Dana,
Aided by the foregoing rules, no difficulty seems to be in the way of reaching an accurate conclusion as to the meaning and scope which it was the legislative intention that section 15 of the act in question, particularly the words, "solicit orders," should bear and possess.
As to the general object and the legality of the legislation involved in the local option law, and incidentally noticing some of the arguments set up in support of the petitioner's position, it may first be conceded that the real root of the mischiefs and evils which too frequently directly result from the use of intoxicants is in the public retail traffic therein, and that it is true, as counsel for the petitioner maintain, that legislation bearing upon the question of intoxicating liquors is primarily directed against such traffic. It is also true that *Page 795 the individual act of using or consuming intoxicants appertains to or comes within the category of a citizen's personal liberties and with which act governmental interference can legally be interposed only where the individual use of such liquors becomes intoxication or alcoholism and thus an infringement of the personal rights and liberties of others. But, while, as stated, this is all true, it cannot for a moment be doubted that the great ultimate object of all legislation upon the subject of intoxicating liquors is, as is obviously true of the statute in question, to reduce to the lowest minimum the individual use and consumption of such liquors as beverages and thus diminish intemperance. And, while the state may not interfere with the individual act of consumption, where such act does not develop a condition of which it may legally take cognizance, it may, nevertheless, adopt such reasonable regulations relative to such private or individual use and consumption as will prevent it from becoming a public evil or responsible for conditions or mischiefs equal in enormity or degree to those proceeding directly from the traffic itself. Indeed, it is, as before intimated, within the constitutional rights of the legislature, in the exercise of the police power of the state, to establish any regulation which may tend to remove every temptation to use intoxicants as beverages under any circumstances and which, if permitted to exist, might have the effect of creating a general sentiment in no-license territory favorable to the revival of the traffic therein. It is, therefore, within the constitutional competence of the legislature to prohibit, and to authorize punishment for a violation of the prohibition, every act and form of soliciting for orders within no-license territory for the sale of intoxicants, to be delivered in such territory, regardless of the use to which they may be intended to be put — that is to say, irrespective of whether the orders so solicited related to individual or other uses. In the case here, the statute has made it unlawful to solicit such orders from all persons within no-license territory, except, perhaps, as before suggested, registered pharmacists, and, although, as shown, individual use of liquors at one's home for the purposes specified in section 16 is permitted, it is very clear, not alone from the manifest general purposes of the law, but also from the fact that the taking of orders from individuals for liquors to be used at their *Page 796 homes is not, as is true in the case of pharmacists, authorized by section 15, either expressly or by implication, that the act of soliciting orders from individuals for household purposes was intended to be and is enjoined by the statute. It is, in other words, contrary to said act to solicit orders from or make agreements with any person within the limits of no-license territory for intoxicants, to be delivered therein, except registered and licensed pharmacists. If this be not true, then, manifestly, the law has little, if any, practical meaning for the purposes for which it was passed.
Nor is it important, so far as is concerned either the act of soliciting orders or that of making agreements for the sale or delivery of intoxicants, whether the sale contemplated by such solicitation or agreements is consummated outside of the territory, for the gist or gravamen of the offense of soliciting orders or that of making agreements for intoxicants within such territory is in the solicitation or the making of the agreements with the purpose and intent of delivering suchliquors therein. It is, in other words, not unlike the crime of burglary, which consists of the mere entering of a building with the intent to steal or commit some other crime, irrespective of whether or not any property be actually stolen or any other act which in itself would constitute a different crime was actually committed.
The foregoing views are, I think, in perfect accord with those of the supreme court as expressed in the Anixter case, above referred to, concerning an ordinance whose language is very much like that contained in section 15 of the act under consideration.
It has already been declared that by section 15 it was intended to enjoin every form of solicitation of orders for intoxicants. By this it was intended to be said that, viewing section 15 by the light of the obvious paramount purpose sought to be achieved by the legislation represented by the act, no other reasonable meaning can be deduced from it than that thus it was intended to prevent every kind and character of solicitation, whatever may be its form, whether in person or by letter or other like communications sent either from without or from within no-license territory through the United States mail or by messengers and addressed to persons within *Page 797 such territory, except pharmacists, at their residences or places of business.
The construction for which the petitioner contends would render the act woefully impotent for the accomplishment of its purpose as a prohibitory measure. It would, indeed, open up an avenue whereby the central object of the statute could be frustrated, almost, if not quite, to the extent of rendering it nugatory. It would, in brief, countenance a gross evasion of the evident spirit and intent of the statute, for liquor dealers engaged in business outside the borders of no-license territory could, with impunity, and immunity from punishment carry on a mail order liquor traffic within such territory (Rose v. State,
Counsel, however, perceive no difference between the act of soliciting orders by means of letters or circulars sent through the mail to particular individuals in no-license territory and the circulation in such territory of newspapers, containing among others relating to other matters, advertisements extolling the quality and giving the prices of certain brands of liquor. But there is an obvious distinction between the two *Page 798 propositions, and it lies in the fact that, in the one case, the minds of particular persons are directly addressed upon a single subject and their attention thus specially called to the subject matter of the letter or circular, while in the other no particular person is appealed to upon any one of the various matters which are usually referred to in or given publicity through the medium of the advertising columns of a newspaper of general circulation. "Solicit," according to Webster's dictionary, is "to apply to for obtaining something; to awake or excite to action; to arouse a desire in," etc., and it may apply to cases where one asks another for a bribe or asks another to commit bribery or larceny and other offenses. (Black's Law Dict., p. 1105.) It implies personal petition and importunity addressed to a particular individual to do some particular thing, and it is unquestionably in this sense that the term is used in the statute. If our statute against bribery in terms, as in effect it does, had been made to say that a public officer who solicited a bribe for the performance of some act within his official duties, and the officer should, by letter, solicit the payment to him of a bribe, it would not for a moment be questioned that such act of the officer would constitute a solicitation of a bribe within the meaning of the law. So it is and must be true here. A letter or circular, such as the one involved in this case, addressed to a particular person, and emphasizing in alluring terms the superior quality of certain commodities, giving the prices at which they may be purchased, and vigorously importuning the addressee to buy and use the same, can be no less a personal solicitation for orders for such commodities than would be the solicitation of a bribe through the medium of a letter or, indeed, than would be the case of like solicitation prosecuted in person by the party by whom such letter or circular is sent out. An advertisement can in no sense be held to be a personal petition or request addressed to any particular person. The ordinary advertisement so published has the effect only of directing attention, in a general way, to the matter advertised, and is, as before stated, addressed to the general public, wherever such newspaper is circulated.
But there is ample judicial authority for holding that a solicitation of orders by mail for the sale of liquors to be delivered in no-license units within which solicitation of such *Page 799 orders is in general terms forbidden by law is a violation of the legislative mandate.
In Rose v. State,
In Hayner v. State,
In State v. Holmes,
As is shown by the above cited cases, and, indeed, as necessarily follows from the conclusion arrived at here with respect to the scope of the language, "solicit orders," as employed in the statute in question, the crime charged against the petitioner was committed upon the receipt of the circular letter in the city of Woodland by the party to whom it was addressed, and the venue of the offense is consequently in Yolo County, in which the city of Woodland is situated. (See cases above cited, particularly United States v. Thayer.)
I have carefully examined the brief filed here by counselamici curiae. It is unnecessary to review in detail the arguments and authorities presented therein. It is enough to say that most of the points made in said brief are in effect answered in the foregoing views of the vital questions submitted by this proceeding. It may be remarked, however, that many of the cases cited by counsel in the brief referred to have no application to the case at bar. The cases referred to have to do with legislation purporting to control, as a police regulation, businesses which are in themselves legitimate, and which, though subject to the police power, are essential to the well-being of society and which can neither be suppressed nor so regulated as that unjust, burdensome, or discriminatory conditions may be imposed upon them or the right to conduct them. For instance, the slaughter house, the cemetery, and other like cases, cited by counsel as amici curiae, obviously deal with occupations in which people have the inherent right to engage, because they are, unlike the liquor traffic, necessary and useful; yet they are of a character that, unless managed in a proper way, they may become a source of great injury to the comfort and health of communities. Therefore, as stated, the state, in the exercise of its powers of police, may regulate the manner of their management so as to prevent, as far as possible, the injurious results to others which are known to come from the prosecution of such occupations; but, as declared, such regulations can neither be prohibitory nor discriminatory in their effect, as is true, in my opinion, as to legislation affecting the liquor traffic. *Page 802
I think, for the reasons herein stated, that the respondents have jurisdiction of the proceeding of which complaint is here made, and the order to show cause is, therefore, discharged and the writ dismissed.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court after judgment in the district court of appeal, was denied by the supreme court on April 13, 1914.
United States v. Thayer , 28 S. Ct. 426 ( 1908 )
Delamater v. South Dakota , 27 S. Ct. 447 ( 1907 )
Burton v. United States , 26 S. Ct. 688 ( 1906 )
Horner v. United States , 12 S. Ct. 407 ( 1892 )
Hooper v. California , 15 S. Ct. 207 ( 1895 )
Piper v. Boston & Maine Railroad , 75 N.H. 435 ( 1910 )