Summary
referring to "welfare of the people" in the context of a review under the anti-monopoly clause
Summary of this case from Anderson v. Metro. Gov't of Nashville & Davidson Cnty.Opinion
Opinion filed January 22, 1953.
1. INTOXICATING LIQUORS.
The sale of whiskey is illegal without grant of special privilege from state or other sovereign, such as municipality, and without such permit its sale is violation of law.
2. INTOXICATING LIQUORS.
The health, safety and morals of the people require stringent regulation of liquor traffic, and it is in exercise of police power of state or municipality that statutes and ordinances regulating liquor are enacted.
3. MONOPOLIES.
The anti-monopoly clause of Constitution does not prohibit creation of monopoly incidental to exercise of police powers where actual and real tendency of ordinance or statute creating monopoly is to effect purpose of protecting safety, health and morals of public (Const. art. 1, sec. 22).
4. MONOPOLIES.
A limitation upon number of liquor stores which may be maintained in municipality is generally recognized as a necessity which welfare of the people requires, and that such limitation has tendency to accomplish that which is monopolistic does not offend anti-monopoly clause of Constitution (Const. art. 1, sec. 22).
5. INTOXICATING LIQUORS.
MONOPOLIES.
Ordinance providing that no more than one license shall be issued for sale of liquor for each 5,000 persons or any fraction thereof residing in city having population of only 1246 is not unreasonable and arbitrary as respects number of stores permitted in proportion to population and is not violative of anti-monopoly clause of Constitution (Const. art. 1, sec. 22).
6. MUNICIPAL CORPORATIONS.
Where ordinance authorizing only one liquor store license in city in view of population of city and requiring operator of store to pay $2,500 yearly for employment of police officers contained liberal severability clause, and provision with reference to $2,500, if invalid, could be elided without destroying rest of ordinance, validity of such provision would not be considered in proceeding wherein it was asserted that provision for single license was in violation of monopoly clause of Constitution (Code Supp., sec. 6648.17(10); Const. art. 1, sec. 22).
FROM DAVIDSON.JAMES CLARENCE EVANS, and FARRIS, EVANS EVANS, all of Nashville, of counsel, for plaintiff in error.
JOHN M. BATES, of Nashville, for defendant in error Town of Berry Hill.
HENRY C. FOUTCH, Assistant Attorney General, for defendant in error Commissioner of Finance and Taxation.
Plaintiff filed a common law writ of certiorari after State Commissioner of Finance and Taxation denied petitioner's application for a liquor license in certain city. The Circuit Court, Davidson County, BYRD DOUGLAS, Judge, denied the petition, and petitioner brought error. The Supreme Court, TOMLINSON, Justice, held that ordinance providing that no more than one liquor license shall be issued for each 5,000 persons or any fraction thereof residing in city having population of only 1246 is not violative of anti-monopoly clause of Constitution.
Affirmed.
For the purpose of obtaining a license to operate a retail whiskey store at Berry Hill, a municipality in Davidson County with a population of 1246, Landman requested the proper municipal officials of that town to issue him a certificate of good moral character. Section 6648.14(a) Code Supplement. At that time there was one retail liquor store in Berry Hill. Consequently, the city officials refused to issue this certificate because of an ordinance of Berry Hill providing that
"no more than one license shall be issued for each 5,000 persons, or any fraction thereof, residing in the City of Berry Hill, by Federal Census of 1950, or any subsequent Federal Census."
Landman then applied in the manner provided by Section 6648.14 of the Code Supplement to the State Commissioner of Finance and Taxation for a license to operate this liquor store, notwithstanding his failure to obtain a certificate of good moral character. The commissioner refused the application because of the aforesaid ordinance. Pursuant to the remedy provided by Section 6648.17(10) Landman then filed his common-law writ of certiorari in the Circuit Court on the theory that the Commissioner had acted arbitrarily and illegally in denying his application. The Circuit Court denied the petition, and from its action in so doing Landman has appealed.
Landman's charge of arbitrary and illegal action upon the part of the commissioner is based upon the insistence that the ordinance in question violates Article I, Section 22 of the Constitution forbidding the creation of a monopoly. In support of that insistence reference is made in behalf of Landman to the Canadian case of Terry v. The Municipality of the Township of Haldiman, decided in 1858, wherein it was held that the power given to the municipality to limit the number of inns and shops where liquor might be sold "was not fairly exercised by allowing only one Inn and one shop", and created a monopoly. No other case so holding is cited, or has been found.
Counsel is proceeding from an erroneous premise in comparing the ordinance in question with an imaginary one prohibiting the sale of bread in Berry Hill by more than one person. The sale of bread is an ordinary, natural and lawful business in which anyone has a right to engage. The sale of whiskey is illegal without the grant of a special privilege from the state or other authorized sovereign such as a municipality. Without such permit its sale is a violation of law.
The health, safety and morals of the people require the most stringent regulation of the liquor traffic. It is, therefore, in the exercise of the police power that such regulating statutes and ordinances are enacted. If in the exercise of such police power an incidental monopoly happens to be created, it is not one which offends the antimonopoly clause of our Constitution, if the actual and real tendency of such ordinance or statute is to effect the purpose of protecting the safety, health and morals of the public. Checker Cab Co. v. Johnson City, 187 Tenn. 622, 216 S.W.2d 335.
A limitation upon the number of liquor stores which may be maintained in a municipality is generally recognized as a necessity which the welfare of the people requires. As a practical matter, such limitation has a tendency to accomplish that which is monopolistic in that only the few to whom the permit has been issued can engage in that business in that town. It has never been held, however, insofar as we know, that a statute or ordinance so limiting the number offends the anti-monopoly clause of our Constitution. In State ex rel. v. Mayor and Aldermen of Dyersburg, 184 Tenn. 1, 195 S.W.2d 11, an ordinance limiting the number of liquor stores to five in this town of 12,500 was sustained. Of course, those five, in a practical sense, had a monopoly on the liquor business in that town. Had the ordinance been held invalid on that account it would have amounted to nothing less than a denial of the right by a sovereign to exercise this necessary police power for the protection of its people.
The case at bar differs from the Dyersburg case only as to the number of stores permitted in proportion to the population. The difference is not such as to enable the Court to say that the Berry Hill ordinance is manifestly unreasonable and arbitrary. The instant case is, therefore, controlled by the Dyersburg case and requires an upholding of the Berry Hill ordinance.
The validity of this ordinance of the town of Berry Hill is likewise attacked because it provides that the operator of a liquor store in that town shall pay $2,500 a year for the employment of police officers. The ordinance contains a very liberal severability clause. If the provision with reference to the $2,500 is invalid it may be elided without destroying the rest of the ordinance. It will not, therefore, be necessary to consider that question at this time. Davidson County v. Elrod, 191 Tenn. 109, 232 S.W.2d 1.
The judgment of the Circuit Court will be affirmed.