State v. Kantler

Dickinson, J. The defendant was convicted upon a prosecution for selling intoxicating liquor without a license, in violation of an ordinance of the city of Minneapolis. The ordinance was originally enacted in April, 1884, and was amended in June, 1884. The grounds upon which the defendant contests the legality of the conviction may be thus stated: (1) The amendatory ordinance was not legally enacted, because its first reading was not at a legal meeting of the common council; (2) the original ordinance was unconstitutional and void, and it was not rendered valid by the amendment, which did not, in terms, re-enact the original ordinance, but merely amended the portions of it which had involved the unconstitutional features; (3) the ordinance, as amended, absolutely prohibits the sale of liquors in the city outside of certain prescribed districts, and the act alleged against the defendant, being done outside of such districts, did not constitute the offence of selling without a license. 1. The charter provides (Sp. Laws 1881, c. 76, subc. 4, § 2,) that “the city council shall hold stated meetings, and the mayor may call special meetings by notice. * * * It shall determine the rules — 76 — of its own proceedings, and have power to compel the attendance of absent members.” No provision is made as to the manner in which the times for the holding of the stated meetings of the council shall be prescribed. At a legal meeting of the council, on the 23rd of April, 1884, a formal resolution was adopted, designating the second and fourth Saturdays of each month as the times for holding future stated meetings. This resolution was approved by the mayor, and published as prescribed by the charter in respect to all resolutions and ordinances. At a regular meeting on the 30th of April, 1884, by a simple motion, then passed, the council designated the first and third Wednesdays of each month for the holding of future stated meetings. The amend-atory ordinance was first introduced and read at a meeting held on the first Wednesday of dune, 1884, (June 4th.) The legality of this meeting, as a stated meeting, is called in question. In the absence of any provision designating the manner in which the times for holding stated meetings of the council should be fixed, the city council had the power of determination. It required only such action on their part as expressed the will of that body. No more was required than the adoption of a simple motion. Approval by the mayor and publication were both unnecessary, and added nothing to the force of the adoption of the resolution by the council. The council was in no measure divested of the power of determination which the charter, in effect, confers solely upon it, by the fact that the mayor had formally approved its first action in the premises; nor did the fact that the will of the council had been expressed in the form of a resolution, and had been published, render necessary that in all subsequent action taken by that body the same formalities should be observed. The meeting of June 4th was therefore a legal stated meeting of the city council. 2. The principal ground upon which it is claimed that the ordinance, as amended, is void, rests upon the fact, declared by this court in In re Wilson, 32 Minn. 145, that section 9 of the original ordinance was unconstitutional, in that it delegated to the mayor the duty of designating the “active patrol districts,” outside of which it was in effect declared by the ordinance that the selling of liquor should not be authorized by license. It is contended that, section 9 of the orig — 77 — inal ordinance being void, the attempted amendment of it by an ordinance in terms striking out that section, and in place thereof declaring the territory which should constitute the “patrol districts,” was also void. It may be conceded, without consideration, that if the entire original ordinance had been void, either because of some defect in the mode of its enactment, or from any other cause, the mere amendment of section 9 would not have been effectual to create a valid and enforceable ordinance. Beyond this the authorities cited by appellant do not go. But that the invalidity of section 9 had not the effect to render invalid the whole ordinance, is apparent from a consideration of the terms of the ordinance, and from the obvious intention of the city council. The ordinance was enacted pursuant to legislative authority (Sp. Laws, 1881, c. 76, subc. 4, § 5,) to “license and regulate * * * all persons vending * * *” intoxicating liquors, and to “restrain any person from vending * * * unless duly licensed by the city council.” We will indicate in general terms the principal provisions of the ordinance. Section 1 of the ordinance enacts that no person shall sell, etc., within the city “without first having obtained a license therefor in the manner herein provided. ” Section 2 designates several classes of persons to whom it is declared that no licenses shall be granted, such as minors, those who have been convicted of violations of the ordinance or have had a license revoked, those who intend to carry on the business as agents for other persons or within a prescribed distance of a public school-building, etc., (subdivision 9,) those who intend to carry on the business “outside of those districts in said city which shall hereafter be designated and known as active patrol districts, to be designated as hereinafter required. ” Section 8 is to the effect that any person desiring a license shall make an affidavit stating, among other things specified, his name, age, and place of residence, the exact place where he proposes to carry on the business, and whether he proposes to conduct it for himself or as agent for another, whether he has been convicted of a violation of the ordinance or has had a license revoked, whether his place of business is to be within the prescribed distance from any public school-building, etc., and (subdivision 10) whether or not the proposed place of busi — 78 — ness is within those districts which have been duly designated as active patrol districts. Section 4 requires the filing of this affidavit and of a prescribed bond. Section 8 requires the payment of a prescribed license fee. Section 9 delegates to the mayor the duty of designating the active patrol districts, which designation is to be submitted to the city council for its approval. No time is prescribed when or within which such designation shall he made. Section 10 provides that every saloon and the bar of every inn, and other places where liquors are sold by the glass, shall be closed on Sundays, and on state and city election days, and forbids the sale of spirituous liquors on these days; forbids the sale to minors or habitual drunkards; declares that gambling shall not be permitted in places where liquor is sold, and that prostitutes and persons of evil name shall not be employed in or allowed to frequent such places; forbids the sale of liquors during certain hours of the night, and imposes other restrictions and regulations. Section 14 imposes a penalty for the violation of any of the provisions of the ordinance. It is apparent from the terms of the enactment that the city council intended it to be effectual to confine the traffic in spirituous liquors within the limits of the city to those who should be specially authorized by license to engage in it, and to ordain certain conditions with respect to the granting of licenses, and certain regulations and restrictions pertaining to the business. It was contemplated as one means of regulating the traffic, even in the hands of licensees, that it should be confined to defined districts of the city, to be specifically designated, and it was with a view to the accomplishment of this purpose that section 9 was enacted, providing for the appointment of those districts by the mayor. The enactment of subdivision 9 of section 2, and subdivision 10 of section 8, was directed to the same end. These subdivisions were so intimately related to the provisions of section 9, that, in the absence of any other ordinance defining the patrol districts, they could be operative only in connection with that section. The provision made by section 9 for determining the districts within which it was intended to confine the traffic being void, the subdivisions just referred to were necessarily inoperative, and incapable of enforcement. Thus the purpose of the council of local restriction, which — 79 — was sought to be carried into effect by those divisions of the ordinance, failed of accomplishment. Bat this fact affords no sufficient reasons for a judicial declaration that the remaining portion of the enactment should not be enforced. The prohibition against selling liquors within the city limits, without a license, is distinct, absolute, unqualified, and apparently in no manner dependent upon the provisions with respect to local restriction. The same may be said of the other portions of the ordinance, which prescribe conditions with respect to the granting of licenses, and impose numerous regulations and restrictions concerning licensees and their business. Disregarding as invalid and inoperative those provisions of the ordinance above referred to, which are directed to the end of local restriction, the remainder may stand as a complete ordinance, clearly expressing the intention of the legislative body enacting it, and capable of being carried into full effect. It is not, either in the nature of its provisions or in its structure, made dependent upon section 9. The provisions and the purposes of the main body of the ordinance, and of that portion which is invalid and not enforceable, are distinct and separable; the failure of the latter does not modify the operation or affect the construction of that which remains. There is no reason apparent to justify a court, in the exercise of its duty of construing and enforcing the law, in the conclusion that the city council would not have enacted the ordinance prohibiting the sale of intoxicating liquors without a license, and imposing the regulations and restrictions there declared, except in connection with the provisions for local restriction. That the city council did enact such an ordinance, and that its provisions -were not apparently in any way dependent upon the accomplishment of the purpose of local restriction, is sufficient to indicate our duty to give effect to the law. As we construe the ordinance, the case is quite within the principles which, according to the authorities, sustain the enactment, except only as to those provisions which were in themselves void. Com. v. Hitchings, 5 Gray, 482; State v. Wheeler, 25 Conn. 290; Gordon v. Cornes, 47 N. Y. 608, 615, 617; People v. Briggs, 50 N. Y. 553, 565, 566; Mayor v. Dechert, 32 Md. 369; Lynch v. The Economy, 27 Wis. 69; Tiernan v. Rinker, 102 U. S. 123; Cooley, Const. Lim. 212. — 80 — There is another reason contributing to the conclusion that the city council are to be regarded as haying intended that the ordinance should go into effect independently of those provisions becoming operative which were designed to restrict the business to defined limits within the city. By its terms the ordinance was to “take effect and be in force from and after its publication;” while the time when the restriction of the traffic to defined districts should become effective was not fixed, but was left to depend upon the future action of the mayor, and the approval of that action by the city council. Our conclusion is that the unconstitutionality of section 9 resulted only in rendering the ordinance ineffectual as to the appointment of patrol districts,.and the restricting of the business by licensees to such districts, and that as to the rest the ordinance was valid. This being so, the amendment in question was effectual which enacted that section 9 should be stricken out, and properly designated certain portions of the city as active patrol districts, and so amended subdivision 9 of section 2 as to make it conformable to the change thus effected. The ordinance was fitly entitled “An ordinance to license and regulate all persons vending,” etc. 3. Under the ordinance as amended, the defendant was properly charged and convicted of the offence of selling without a license. The restriction of the business to defined districts within the city is a proper regulation of the traffic, (In re Wilson, 32 Minn. 145,) which all licensees may be required to observe. As a means of securing conformity with this regulation, applicants for license are required, among other things, to state whether or not the place where they intend to carry on the business is within the now properly designated districts, and if it thus appears that the applicant intends to disregard the restriction and to sell outside of those limits, it is declared in effect that no license shall in such case be granted. The effect of this is not to render inoperative, or impossible to be complied with, the requirement that all persons who would engage in the business within the city shall procure a license therefor. This part of the ordinance prevents from obtaining a license only such persons as refuse to comply with the regulation ordained with reference to the places where the business may be carried on. Selling without a — 81 — license is within the distinct prohibition of the enactment, and it is not material that no license could have been procured authorizing the business to be carried on at that place within the city where the sale charged was made. State v. Langdon, 31 Minn. 816. This decision is not opposed to that in State v. Hanley, 25 Minn. 429, relied upon by the appellant. That case is not applicable as authority here. See comment upon that case in State v. Langdon, supra. Order and judgment affirmed.