Zodrow v. State

ViNjE, J. The plaintiff in error claims that sec. 1565d, Stats. 1911, is unconstitutional because (a) it violates the Fourteenth Amendment to the federal constitution in that it denies to all the property owners within the city the equal protection of the laws; (b) it creates a monopoly in favor of .2,224 places and against 30,000 places within said city; (c) it discriminates in favor of 2,224 property owners in said city; (d) it enables the owners of 2,224 pieces of property to exact extortionate rents because they are protected from competition; (e) it is class legislation because it builds up a class and clothes that class with special privileges; (f) it destroys the right of home rule which the city of Milwaukee enjoyed before the adoption of the constitution, and which was not taken away by the constitution; for while the law fixes the number of saloons that the city may have, it denies to the people of the city the right to say where those saloons shall be located; (g) it deprives persons of their property without due process of law, for by depriving any property owner of the right to lease his property for any purpose for which his neighbor may lease his, it takes from him one of [555] tlje attributes of property; (h)- tbe law is unreasonable be- , cause it confines the saloons of the city to the identical places they occupied on the* 30th day of June, 190J, and for all time they may not be changed, except in infrequent instances, where cases are brought -within the exceptions of the law, without regard to changes in' conditions that of necessity come within the evolutions that are characteristic in municipal life; and (i) it takes property without compensation. The above objections to the constitutionality of the law urged by plaintiff in error are set forth in detail, not for the purpose of separate treatment in the opinion, but to show that they were raised and that none,have been overlooked by the court. Whether all the rights therein claimed to attach to property or to persons are in fact rights or privileges which the constitution or the laws recognize, it is needless to discuss or determine in this ease, for it is established by early decisions of this court, as well as'by other courts, that, as respects the 'liquor traffic, the legislature in the exercise of the •police power has plenary authority to prohibit it altogether, or to restrict it in any reasonable manner. State ex rel. Henshall v. Ludington, 33 Wis. 107; Wightman v. Devere, 33 Wis. 570; License Cases, 5 How. 504, 12 L. ed. 256; 1 Woollen & T. Intox. Liq. sec. 79 et seq. and cases cited. The justification for the exercise of the police power in restraining or prohibiting the sale of intoxicating liquors has been stated and restated by the courts time and again. It may be summed up as resting upon the fundamental principle that society has an inherent right to protect itself; that the preservation of law and order is paramount to the rights of individuals or property in manufacturing or selling intoxicating liquors; that the sobriety, "health, peace, comfort, and happiness of society demand reasonable regulation, if not entire prohibition, of the liquor traffic. Unrestricted, it leads to drunkenness, poverty, lawlessness, vice, and crime of almost every description. Against this" result society has the in [556] herent right to protect itself — a right which antedates all constitutions and written laws — a right which springs out of the very foundations upon which the social organism rests; a right which needs no other justification for its existence or exercise than that it is reasonably necessary in order to promote the general welfare of the state. Tested by these fundamental principles, and without going into a detailed discussion of the objections raised against the constitutionality of the law, it cannot be said that it unreasonably affects either the rights of persons or property in the sale of intoxicating liquors. It permits a saloon for every 250 inhabitants, presumably adequate facilities for quenching all lawful thirsts. It reasonably protected all persons engaged in, and places used for, the sale of intoxicating liquors at the time it went into effect. If, incidental to these lawful regulations, it so happens that, temporarily, certain places or persons are given a preference, or that rights theretofore enjoyed are limited or entirely destroyed, such result does not affect the validity of the act. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, and cases cited ante. As soon as cities grow so that they will be within the ratio limit, or as soon as they vote to remain within it, all preferences disappear. The preferences created result from the effort to temporarily protect business that was established at the time the law went into effect. In State ex rel. Marvin v. Larson, 153 Wis. 488, 140 N. W. 285, the constitutionality of the law was assumed, and we perceive no reason now why such assumption was not well founded. The question of whether or not the proof shows the plaintiff in error to have been properly convicted depends upon the construction to be given to the two provisos of the law. In State ex rel. Marvin v. Larson, supra, the court said: “The main thought of the section was doubtless to set a limit, which should adjust itself as the population increased or diminished, beyond which the number of saloons should [557] not go. While this was the dominant idea, it was also realized that in some places this limit had been passed, and it was thought that, where premises .were already in use for saloon purposes, as well as where a tenant was obliged to remove his business by circumstances over which he had no control, exception might be made in favor of such premises or such tenant. The theory evidently was that the law might operate too harshly and summarily if provision were not made to protect, in some degree at least, investments already lawfully made.” Pages 490, 491.' Upon further reflection and reconsideration of the question we think the construction there indicated is the correct one. It was evidently the legislative purpose in enacting the provisos to reasonably protect persons engaged in, and places used for, the traffic at the time the law went into effect rather than to permit the whole number of licenses then outstanding to be reissued indefinitely. - If the latter had been its purpose it would have been easy to have said that in cities exceeding the ratio the present number of licenses might be issued till the increase in population brought the number within the ratio. But it did not do that. It made the further proviso that licenses be granted or issued to persons for those places or locations for which licenses were issued or granted on or prior to the 30th day of June, 1907, unless they came within the exceptions contained in the proviso, thus restricting the power of cities, where they grant licenses in excess of the ratio, to grant them fovnew places only to the owner or lessee of premises used for saloon purposes on and continuously since the 30th day of June, 1907, who has been deprived of the use of such premises for saloon purposes in any of the ways mentioned in the last proviso of the section. The idea was to protect existing liquor business in such a way as to create as little hardship as possible and at the same time to bring the number of licenses down to the ratio as speedily as lapses in the reapplieation therefor, and the growth of the city, would produce such result. By this [558] method existing business was adequately protected, and two causes, lapses and growth, allowed to operate to finally bring all cities within the prescribed ratio. The result is, two classes of cities are created by the act: one issuing licenses within the prescribed ratio, and the other issuing licenses in excess of such ratio but not in excess of the number of licenses in existence at the time the law went into effect. The former can issue licenses to new persons and new places in their discretion; the latter to new places only as specified in the second proviso. State ex rel. Marvin v. Larson, 153 Wis. 488, 140 N. W. 285. The plaintiff in error was neither the owner nor lessee of premises used for saloon purposes at the time and continuously since the law went into effect, hence the city of Milwaukee, which issued licenses in excess of the ratio, was powerless to grant him a license for a new location. He was therefore lawfully convicted and sentenced. By the Court. — Judgment affirmed.