Hammond v. McDonald

WHITE, J., Concurring and Dissenting.

I concur in that portion of the judgment which reverses the judgment of the court below, but I dissent from that portion which remands the cause for a new trial. I am firmly of the opinion that the cause should be remanded with directions to the trial court to enter judgment for the defendants. The reason for such belief upon my part is engendered by the fact that the sole question here involved is whether, under the provisions .of section 22 of article XX of the Constitution of this state, as amended in 1934, intoxicating liquors may be sold without meals in bona fide restaurants, cafes, hotels, clubs or other legitimate eating places. The trial court found, upon substantial and convincing evidence, that the defendants were conducting in good faith a cafe and lunch counter business, but nevertheless held that because in such bona fide restaurant defendants were serving intoxicating liquors without meals, their action in so doing was “illegal, and, in effect, amounts to the maintenance therein of a saloon and barroom, contrary to law.” The bona fide character of defendants’ restaurant is conceded, and the sole and paramount question which we should determine is, therefore, one of law, viz., can this bona fide restaurant serve intoxicating liquors without meals. While it might be inferred from the decision of this court that restaurants of a bona fide character may serve intoxicating liquors without meals, such holding is in my opinion more or less equivocal. I believe we should in this case decisively and unequivocally settle and determine that question of law. I am firmly convinced that under the existing provisions of our Constitution, a bona fide restaurant, etc., may legally and lawfully sell and serve intoxicating liquors either with or without meals. In that connection, let us consider the constitutional provision as adopted in 1932, so far as here pertinent. It read:

“. . . . provided, however, no public saloon, public bar or barroom or other public drinking place where intoxicating liquors to be used for any purpose shall be kept, bought, sold, consumed or otherwise disposed of, shall ever be established, maintained or operated within the State; provided, further, subject to the above provisions, that in hotels, boarding houses, restaurants, cafes, cafeterias and other public eating places, wines and beer may be served and consumed with meals furnished in good faith to the guests and patrons thereof.”

As amended in 1934, the Constitution, so far as it concerns the question before us, was made to read: “Intoxicating liquors, other than beers, shall not be consumed, bought, sold, or otherwise disposed of for consumption on the premises, in any public saloon, public bar or public barroom within the State; provided, however, that subject to the aforesaid restriction, all intoxicating liquors may be kept and may be bought, sold, served, consumed, and otherwise disposed of in any bona fide hotel, restaurant, cafe, cafeteria, railroad dining or club car, passenger ship, or other public eating place, or in any bona fide club after such club has been lawfully operated for not less than one year.”

It seems clear to me that by adopting the 1934 amendment the people intended to and did make a substantial change in the organic law. Under the 1932 constitutional provision only the sale of beer and wine for consumption on the premises was permitted, and then only when such service was made with meals, while the sale of so-called hard liquor by the drink was prohibited whether with or without meals in any public restaurant. If there be any doubt as to what was in the minds of the framers of the initiative amendment of 1934, or in the minds of the people when they voted to adopt such amendment, that doubt is dissipated by reason of the argument addressed to the electors of California as contained in the pamphlet compiled by the state legislative counsel and distributed to each qualified voter by the Secretary of State. In the argument favoring adoption of the 1934 initiative amendment, we find the following clear and unequivocal language:

“. . . The issue is clear-cut. The sale of beer and wine, with or without meals, and of hard liquor by the drink, with or without meals, must stop in California after November 6th unless the people approve Proposition 2 at the polls. In voting for this proposition the people will vote for the open and regulated sale of all intoxicating liquors, with or without meals, in legitimate eating places so licensed by the State Board of Equalization.”

That the opponents of the initiative measure suffered no illusions as to the intent and purpose of the amendment is evidenced by the following quotation from the argument made against the adoption of such amendment, and which argument, by the way, was signed by one of counsel for respondent herein: “It (referring to the amendment) provides that intoxicating liquors ‘other than beers’ shall not be consumed, bought, sold or otherwise disposed of for consumption on the premises in any public saloon, public bar, or public barroom within the state; but that subject to this restriction, ‘all intoxicating liquors may be kept and may be bought, sold and served, consumed and otherwise disposed of in any bona fide hotel, restaurant, cafe, cafeteria, railroad dining or club car, passenger ship or other public eating place, or in any bona fide club after such club has been lawfully operated for not less than one year. ’ . . . The places in which all intoxicating liquors may be freely sold and consumed if the proposed amendment is adopted, are so varied, diversified and ntmerous that it would amount to no restriction worthy of the name and could only have been designed to fool the public, as the liquor forces have been, prone to do at all times and under all circumstances. ’ ’

With the foregoing arguments before them, the people wrote the initiative measure into the Constitution. The language of the amendment to me seems clear and understandable. After outlawing a return of the public saloon, it provides, subject to the just - mentioned restriction, that all intoxicating liquors may be kept, bought, sold, served, consumed and otherwise disposed of in any tona fide hotel, restaurant, etc. In other words, the service of meals with liquor is not required when such service takes place in a licensed bona fide hotel, restaurant, club, cafe, etc. The requirement of meal service with the sale of beer or wine contained in the former constitutional provision of 1932 was completely eliminated by the 1934 amendment and the sale of such malt and vinous as well as distilled liquors was authorized without any reference to meal service, provided the restaurant, cafe, etc., was in good faith conducted as a restaurant, cafe, etc.

Pursuant to the power granted by the Constitution, and to carry out its inhibition against the return of the old-time saloon or barroom, the legislature, in the Alcoholic Beverage Control Act referred to in the main opinion, expressly prohibited the operation of a public bar, public saloon, or public barroom, and defined the latter to be “any room to which the public has access in which there is any bar, counter or other structure over which beverages of an alcoholic content in excess of four per cent by weight are sold or served by the drink to the public for consumption on the premises; provided, however, that counters or other structures used for the sale, service and consumption of meals, and not as a subterfuge for a public bar, shall not be deemed to be a public bar within the meaning of this act. ’ ’

That by the 1934 amendment a substantial change was made in the Constitution to me seems clear' and undeniable. That this indicates a clear intention to change its meaning is conceded by the main opinion, with cases cited in support of such concession. As admitted in the main opinion, the indicated change was to free restaurant keepers and others from the limitation that the sale of liquor must be accompanied by the service of meals. The main opinion decides that the Constitution in its present form prohibits the sale of intoxicating liquors for consumption on the premises in all places where that is the principal business, but permits it in hotels, restaurants, etc., where the principal business is the service of meals and the sale of intoxicating liquor is merely incidental thereto. The main opinion attempts to read into the Constitution the term “principal business,” and thus add.to the functions of the Board of Equalization the duty of determining what the “principal business” is. To my mind, this is not at all what is contemplated by the Constitution. A mere reading of its terms demonstrates clearly and unerringly that once the bona fide character of the hotel, - restaurant, cafe, etc., as such, is determined, then the sale of liquor, either with or without meals, is permitted in licensed places. The trial court took the position, and the main opinion approves thereof, that because the amount realized from the sales of liquor exceeds that obtained from the sale of meals, the place becomes a public saloon or barroom and loses the characteristics of a bona fide restaurant, cafe, hotel, etc. This to my mind is not the true test. I feel that if the place in question, exclusive of the sale of liquor, could qualify as a bona fide restaurant, cafe, etc., as these terms are commonly known and understood—that is to say, is prepared to furnish meals and foodstuffs in the event such service is requested by the patron—then such establishment, if licensed by the Board of Equalization, may maintain upon its premises and sell intoxicating liquor, with or without meals.

It is true that the 1934 amendment prohibits public saloons and barrooms. But by its very language it provides that a bona fide restaurant, cafe, etc., is not a saloon. And this is but common sense. The voters of this state, when they adopted the 1934 initiative amendment, knew and understood what the old-time saloon was. They knew it never afforded an opportunity to order and consume a meal therein. It takes no skilled or learned lexicographer to understand that an establishment equipped to serve bona fide meals cannot be labeled as a saloon, because in the latter only liquor is sold, with possibly an occasional distribution of “free lunch.’’

In the face of the findings made by the trial court that defendants were operating a bona fide eating place, fully equipped with facilities and foodstuffs for the service of meals, it does not seem to me that there remains anything for the trial court to do but enter a judgment for the defendants, because as heretofore pointed out, the constitutional provision makes but one test for determining whether the Board of Equalization is entitled to license a restaurant, cafe, etc., to serve liquors, with or without meals, and that test is whether such establishment is conducted as a bona fide restaurant, cafe, etc. The evidence supporting as it does the finding of the trial court that the defendants were conducting a bona fide restaurant in compliance with the constitutional provision, their establishment could not be the subject of an abatement action on the ground that it constituted a nuisance, and they are therefore entitled to have a judgment entered in their favor. The decision of this court should so direct.

Appellants’ and respondent’s petitions for a hearing by the Supreme Court were denied April 6, 1942. Carter, J., voted for a hearing. Traynor, J., did not participate therein.