Opinion
No. 35269.
February 15, 1943.
1. MUNICIPAL CORPORATIONS.
An ordinance of Town of McCool prohibiting business houses from remaining open after 11 P.M. was unenforceable as against grocery in absence of causal connection between grocery's long hours and intoxication of employees in nearby establishments (Code 1930, sec. 2406).
2. MUNICIPAL CORPORATIONS.
Motive for or profit by keeping grocery open after 11 P.M. in violation of ordinance was not relevant in determining validity of the ordinance, which must be sustained by clear necessity for abating a condition which disturbed the good order and peace of the municipality.
3. CONSTITUTIONAL LAW.
If a statute purporting to protect public health, morals or safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by fundamental law, courts must so adjudge and thereby give effect to the constitution.
4. MUNICIPAL CORPORATIONS.
Evidence did not establish that grocery keeping open after 11 P.M. in violation of ordinance was a nuisance.
5. CONSTITUTIONAL LAW. Municipal corporations.
As applied to grocery, ordinance of Town of McCool against keeping open after 11 P.M. was a deprivation of property rights without "due process of law" and unreasonable "restraint of a trade" which was not a "nuisance per se" nor "per accidens."
APPEAL from circuit court of Attala county, HON. JOHN F. ALLEN, Judge.
J.P. Coleman, of Ackerman, for appellant.
McCool has a population of 200 or 250 inhabitants. It has six grocery stores. All except the appellee usually close at 7 p.m. Drug stores stay open on the average until 9 o'clock. The appellee and a joint known as the "Honky Tonk" are the only ones remaining open after 11 o'clock. The Town Marshal testified that they had drunks all night long if any place remained open and that lots of times since he has been Marshal one officer could not handle the drunks; that drunks would go anywhere a place was open and if the places were closed they go on out of town, or home.
We submit that the case should be reversed for the reason that all of the proof was that the regulation is reasonable and there is no proof whatever to show that it is unreasonable. There is merely the contention of the appellee that he wishes to remain open after 11 o'clock at night in a little village of 250 or 300 persons. The record does not show that he profits by it, and on the other hand there is absolutely nothing as to any damage that he sustains by closing. He does not deny remaining open in violation of the ordinance, and the testimony of the Marshal as to conditions at that hour of the night is not contradicted.
It appears that the Supreme Court in the past has had before it the validity of closing hours in only two cases. Johnson v. Town of Philadelphia, 94 Miss. 34, 47 So. 526; Knight v. Johns, 161 Miss. 519, 137 So. 509. In the Johnson case an ordinance requiring skating rinks to be closed from 6 P.M. until 6 A.M. was held to be unreasonable. In the Knight case the ordinance directing barber shops to remain closed from 6:30 P.M. to 7:30 A.M. was held to be unreasonable. Neither of these cases set up a test for the control and determination of other cases. The regulation in this case is reasonable and should have been sustained by the trial court. To hold otherwise will be to hold that mercantile establishments are not subject to any regulation in any town as to any closing hours.
Rodgers Prisock, of Louisville, for appellee.
The only question before this court is whether or not under the circumstances that prevailed at McCool on the occasion in question the ordinance was reasonable and did not prevent the defendant from the full, free enjoyment of his property rights.
Mercantile businesses in general as matters of public policy are not subject to municipal regulations unless the power is specially delegated. Arbitrary interference with freedom or trade, discriminating between residents and nonresidents or unreasonably limiting hours of sale are void.
28 Cyc. 733.
Any ordinance of a municipality undertaking to prohibit or abate nuisances, which extends beyond the power conferred by statute, is void. Municipalities are without authority to prohibit or abate a condition upon the ground that it is a nuisance, unless in truth and in fact it be a nuisance.
Desporte v. City of Biloxi, 136 Miss. 542, 100 So. 387.
See also Town of Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723; Ex Parte McCarver, 39 Tex. 448, 46 S.W. 936, 73 Am. St. Rep. 946; State v. Ray, 131 N.C. 814, 42 S.E. 960, 92 Am. St. Rep. 795; 17 Am. and Eng. Enc. 247.
Property consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property to that extent destroys the property itself.
Fitzhugh et al. v. City of Jackson, 132 Miss. 585, 97 So. 190.
Ordinances must be reasonably consistent with general law, and not destructive of lawful business.
Knight v. Johns, 161 Miss. 519, 137 So. 509; Johnson v. Town of Philadelphia, 94 Miss. 34, 47 So. 526.
Appellee was prosecuted for violation of an ordinance of the Town of McCool which makes it unlawful for business houses to remain open for business after eleven o'clock P.M. The ordinance is sought to be justified by Code 1930, Sec. 2406, which authorizes municipalities "to make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property" and contains other provisions not here applicable. The ordinance is prefaced with a finding that "the matter of certain places of business remaining open at unreasonable hours of the nighttime, after usual and customary business hours, has become and is a serious menace to the preservation of good order and peace of the said Town of McCool." The ordinance contains exceptions in favor of apothecaries or druggists, as well as penal provisions. Section 1 of the ordinance is as follows: "It shall be unlawful and a violation of this ordinance for any person or persons within the corporate limits of the Town of McCool, Mississippi, to keep open or operate or allow any member of the general public to enter any store, pool room, billiard hall, gasoline filling station, garage, cafe, or other place of business usually open to the general public from and after the hours of eleven o'clock P.M., central standard wartime of any night of the year.
"And after said hour it shall be unlawful and a violation of this ordinance for any person or persons within the corporate limits of the Town of McCool, Mississippi, to sell, give away or otherwise dispose of any goods, wares or merchandise from any place of business, and any establishment for which a privilege license is required by the Privilege Tax Laws of the State of Mississippi shall be and is a place of business within the meaning and purpose of this ordinance."
The testimony revealed that the only places remaining open beyond the curfew limit were the grocery store of appellee and a cafe. Although there is evidence that the keeping open of the cafe tended to prolong the sojourn of persons employed in nearby establishments whose standards of decorum often became depressed by intoxication, no such causal connection is sufficiently shown between this condition and the relatively long hours kept by appellee. It is not relevant whether appellee profited by his deferred closing nor what his motive was. The only relevant inquiry must be directed to the validity of the ordinance which must be sustained, if at all, by a clear necessity for abating a condition which disturbed the good order and peace of the municipality to the extent that a regulation thereof has become reasonably necessary as an exercise of the police power. "If . . . a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a papable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution." Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 297, 31 L.Ed. 205. No emergency is seen nor alleged, nor does the evidence establish the status of the store as a nuisance.
The motive of the municipal authorities are unquestionably wholesome and worthy, but we have concluded that the ordinance, in so far as appellee is concerned, constitutes an unwarranted exercise of powers resulting in a deprivation of the property rights of appellee without due process of law. It is an unreasonable restraint of a trade not per se nor per accidens a nuisance. Cf. Town of Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297, 12 L.R.A. 528, 24 Am. St. Rep. 281; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526, 19 L.R.A. (N.S.), 637, 19 Ann. Cas. 103. Cases cited by appellant dealing with closing hours and found to be in point include Knight v. Johns, 161 Miss. 519, 137 So. 509; State v. Ray, 131 N.C. 814, 42 S.E. 960, 60 L.R.A. 634, 92 Am. St. Rep. 795; Ex Parte McCarver, 39 Tex. 448, 46 S.W. 936, 42 L.R.A. 587, 73 Am. St. Rep. 946; 28 Cyc. 733; Ex parte Harrell, 76 Fla. 4, 79 So. 166, L.R.A. 1918F, 514; Saville v. Corless, 46 Utah, 495, 151 P. 51, L.R.A. 1916A, 651, Ann. Cas. 1918D, 198; Ex Parte Hall, 50 Cal.App. 786, 195 P. 975; Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230 with note at page 242; 37 Am. Jur. Municipal Corporations, Sec. 307, p. 961.
This case was tried upon appeal to the circuit court where appellee was discharged. An appeal was taken by the municipality under Code 1930, Section 19. The action of the trial court is affirmed.
Affirmed.