In re Schneider for Writ of Habeas Corpus

— 296 — By the Court, Watson, C. J. Lord, J., concurring. This is an appeal from an order of the circuit court refusing to discharge the appellant from custody upon a writ of habeas corpus directed to the chief of police of the city of Portland. It is impossible to notice all the questions raised in the argument of the case, in an opinion of reasonable length, and I shall therefore restrict my examination to such as appear fairly open to controversy. That the legislature has the power, under the state constitution, to invest the subordinate municipal governments with control of the traffic in intoxicating liquors, is not a debatable question. The only questions of real difficulty presented in the record arise upon the construction of the several provisions of the charter conferring power over the subject upon the city council, and the ordinances adopted by the council in attempted pursuance of the power conferred. 1. What is the power “to license, tax, regulate and restrain bar-rooms and drinking shops,” bestowed upon the council by subdiv. 5 of section 37 of the charter? The terms “ bar-rooms ” and “ drinking shops ” are obviously used here to signify the business of conducting or keeping such places. They are susceptible of no other reasonable interpretation, in the connection in which they are found in this provision of the charter. It is such business, therefore, that the council is empowered “to license,” &c. In this view, the legal character of the place would be determined by the nature of the business for which it is occupied. — 297 — The council, then, in requiring license to be taken out before engaging in the business of disposing of liquors to be drunk on the premises owned or occupied by the dealer, simply exercised its rightful authority; for the business of disposing of liquors to be drunk on the premises where disposed of, is identical with the keeping of a “ bar-room,” or “drinking shop,” and every place where liquors are disposed of to be drunk on the spot is a “ bar-room,” or “drinking shop,” within the meaning of the charter. There can be no essential difference between the original meaning of the word “tavern” and the word “bar-room,” or “drinking shop,” as used in the charter. And a “ tavern” has been judicially defined to be “a house licensed to sell liquors in small quantities to be drunk on the spot.” (State v. Chamblyss, 34 Amer. Decis., 593.) And such is doubtless the common understanding of the terms “bar-room” and “drinking shop/’ and the sense in which they are employed in the charter. It is true the language of the ordinance is somewhat broader, covering any sale, barter or delivery, of the liquors specified, to be drunk on the premises, without license; but a reasonable construction, in view of the particular subject before the council at the time the ordinance was adopted, justifies, the restriction I have placed upon it. (Albrecht v. The People, 78 Ill., 510.) The provisb to subdiv. 5 of §37 of the charter also justifies the inference that the legislature intended to confer a large measure of control over the traffic in liquors upon the local government. It is found in the same subdivision of the section by which the power “ to license,” &c., is given, and declares that “all persons vending liquors within the city of Portland” are exempted from the necessity of taking out license under the general laws of the state. — 298 — I think, therefore, the ordinance fairly conforms to the power given by the charter in this respect. 2. The objection that the ordinance is ambiguous as to the time when the license fee is to be paid, is not maintainable. It is to be paid each quarter, and the term “quarter” in this connection can only mean the quarter of the year for which the applicant desires a license. And inasmuch as he may not engage in the proposed business without a license, it is apparent the “five days of the beginning of each quarter” within which he is required to file the receipt of the city treasurer, for the amount of the license fee, with the city auditor, who is authorized to issue the license, must be the five days immediately preceding the beginning of such quarter. 8. A question is made as to the power of the city council to pass an ordinance requiring a bond from an applicant for a license to keep a “bar-room” or “drinking shop” within the city limits. I think I may safely assume the existence of the power under the authority to “regulate and restrain bar-rooms and drinking shops,” unless some limitations can be implied from other parts of the charter. There is no express limitation, and the authority to “regulate and restrain,” uncontrolled by other provisions, would clearly give the power to require the bond. In fact the requirement of a bond from the applicant for license to engage in such business, is universally recognized as a proper and legitimate measure of regulation and restraint wherever such power is to be exercised. And as the state exercised the power in the same manner until it withdrew its jurisdiction in favor of the city government, there seems good ground for concluding that the legislature intended the latter should enjoy the power in the same ample and efficacious measure. — 299 — The opposite view rests upon deductions from the provisions of subdivision 36 of §37 of the charter prescribing the mode and measure of punishment for violations of city ordinances. These provisions unquestionably limit the power of the council to provide punishment for the offense of violating such ordinances. But the penalty in a bond of this character, which the obligor may become liable to pay on breach of its conditions, is not either technically or in fact a punishment for a violation of any city ordinance. If the council passes an ordinance requiring a bond as one of the conditions of granting license, and a person engages in the business for which the license is required without first obtaining it, he might be punished for a violation of the ordinance and the limitation as to punishment would apply. But if he gives the bond and procures the license, subsequent breaches of the conditions of the bond would not amount to violations of the ordinance. He would simply render himself liable on his contract; and the real question must be, not as to the power to punish, but as to the power to exact the obligation by contract, as a legitimate measure of regulation or restraint. Now, is it to be inferred from the fact that the legislature has limited the amount which the council may impose as a punishment for a violation of a city ordinance, that it intended to withhold the power to require a bond, because a person might thereby incur a liability to pay an amount greater than could be imposed as a punishment? If this reasoning is admissible, no bond can be exacted in any case under the authority given to the city government, for the mode as well as measure of punishment is prescribed, and one operates as a limitation just as much as the other. Certainly, no one will contend that the council has any au — 300 — thority under the provisions relating to' punishment for violations of city ordinances, to require any bond or other security. A bond to secure in advance the payment of penalties for violations of city ordinances which may happen subsequently, and not warranted as a measure for securing the performance of some special or peculiar duty to the public, would be additional punishment in itself and plainly not within the authority to punish conferred by the charter. And if a bond for this purpose might be exacted from one it might from all; and, indeed, no ordinance requiring it of any particular person or class only could, in any event, be deemed valid. How, then, can the city government insure the performance of public duties on the part of its officers and citizens in those positions of special trust and power where dereliction would be cheaply purchased at the amount which might be exacted as punishment for the violation of city ordinances, if no security in any greater amount can be required? The only principle which will sustain the objection to the power of the council to require a bond in such cases, proceeds to the extent of denying its authority to create an obligation or require the execution of a contract, by ordinance, which may impose a liability in excess of the amount which may be exacted as a punishment for the violation of such ordinance. But if there is a sufficient consideration for the obligation or contract, as there is in cases of this character, I am unable to perceive any reason why the extent of liability upon it should be affected in any manner by the provisions in relation to punishment for violations of the ordinance creating the obligation or requiring the execution of the contract. Punishment for a violation of a city ordinance under the charter cannot exceed three hundred dol — 301 — lars and. ninety days imprisonment. The amount to be paid for license to keep a “ bar-room ” or “ drinking shop ” must be established by ordinance. If the ordinance requires a greater sum to be paid for license than could be exacted as punishment, if a person should proceed to engage in such business without obtaining license, would it therefore be void? Has the amount of such punishment any relation to the amount which may be required for the license? The bond required as a measure of regulation or restraint, stands on the same footing as the license fee in this respect. If the council has the power under the charter to require the bond as a proper measure of regulation or restraint, then the only limitation upon its amount or conditions is that of reasonableness, and the provisions as to the amount of punishment which may be imposed for a violation of the ordinance exacting it, can have no bearing. There is no essential connection or correspondence between the legal obligation of an ordinance and the penalty for its violation. If the latter is insufficient, the ordinance may be ineffectual, but is not therefore invalid. In the case at bar, the requirement of the bond is part.of the obligation of the ordinance, and quite distinct from the penalty provided for its violation. (State v. Whitener, 23 Ind., 124; Whalin v. City of Macomb, 76 Ill., 49.) I think the power of the council to require a bond from the applicant should be sustained. 4. It is claimed that the provision in the form of bond given in §5 o'f the ordinance for the observance of “all other ordinances of said city” is illegal and renders the entire ordinance void. The claim is put upon a literal construction of - the provision. If this were the proper construction, I — 302 — should not deny the effect contended for. A requirement to observe all other ordinances of the city would be unequal, oppressive and void; and as the bond required by the ordinance in this instance is an essential part of the consideration for granting the license—as much so as the license fee itself—the manifest intention of its framers would be violated by permitting the license to issue on any other or different terms. An ordinance thus void in part is wholly void. The good part is incapable of separation from the bad. (Austin v. Murray, 16 Pick., 121; Warren & others v. Mayor & Aldermen of Charlestown, 2 Gray, 84.) But the rule of construction with reference to the subject of the ordinance before considered, applies here with equal force. The subject before the council being the licensing of bar-rooms and drinking shops, as to the title as well as the body of the ordinance, abundantly shows, .the expression, “all other ordinances of said city,” must be held to mean all other ordinances on that subject, and therefore not invalidating the ordinance. (State ex rel. Kennedy v. McGary, 21 Wis., 502.) 5. The validity of the ordinance is also assailed on the ground that its requirements as to the qualifications of sureties are unreasonable and oppressive. Under the power to restrain, it has been held that a license fee may be exacted. (Smith v. The City of Madison, 7 Ind., 86.) And if a fee may be required under this power, why not a bond with sureties possessing certain prescribed qualifications? The word “restrain,” appearing as it' does in immediate association with the word “regulate” in the charter, must be accorded some additional effect. And even if the requirements as to qualifications of sureties could not be con — 303 — sidered as justified by tlie power to regulate, it is by no means so clear that they cannot be sustained _under the power to restrain. Judgment affirmed. "Waldo, J., dissenting.