1 Reported in 32 N.W.2d 538.
This case came to the writer upon reassignment.
On these appeals plaintiff challenges as unconstitutional the provisions of an ordinance of the city of St. Paul prohibiting any woman except a licensee, wife of a licensee, or the manager of an establishment if the licensee is in the armed forces from dispensing intoxicating liquor behind a bar or counter in any establishment in which intoxicating liquor is sold at retail for consumption on the premises. Prior to the enactment of the ordinance plaintiff had been steadily employed tending bar in the barroom of the Frederic Hotel in St. Paul. Her duties consisted of dispensing intoxicating liquors behind the bar at retail sale for consumption on the premises. Because the ordinance prohibits plaintiff from working at her occupation as a bartender, she contends that it violates numerous constitutional provisions. We shall notice only those contentions which were argued, viz.:
(1) The ordinance deprives plaintiff of her property without due process of law in violation of Minn. Const. art. 1, § 7;
(2) It deprives her of her liberty and property without due process of law in violation of U.S. Const. Amend. art. XIV, § 1; and
(3) It deprives her of the equal protection of the laws in violation of U.S. Const. Amend. art. XIV, § 1.
On January 18, 1934, the city council of the city of St. Paul adopted ordinance No. 7537,2 regulating the "on sale" retail liquor business, the title of which declares that it is "an emergency ordinance rendered necessary for the preservation of the public peace, health and safety." The ordinance regulates in detail the business in question. It prohibits certain activities and conduct such as dancing, singing, vaudeville entertainment, and keeping pool and billiard tables. Section 23(g) provides:
"Every licensee is hereby made responsible for the conduct of his place of business, and required to maintain order and sobriety in such place of business."
See, State v. Sobelman, 199 Minn. 232, 236-237, 271 N.W. 484,486.
On May 11, 1945, the ordinance was amended by ordinance No. 8604, paragraph (e)3 of which reads:
"No person under twenty-one (21) years of age shall be employed in any rooms constituting the place in which intoxicating liquors are sold 'on-sale'. No woman except alicensee or wife of a licensee, or the manager of theestablishment if the licensee is in the armed forces, shalldispense liquors behind a bar or counter in an establishment inwhich intoxicating liquors are sold 'on-sale'." (Italics supplied.)
The italicized portion is assailed here by plaintiff.
1. Since this action involves the constitutionality of a city ordinance, we point out, as we said in City of Duluth v. Cerveny, 218 Minn. 511, 516, 16 N.W.2d 779, 782, that the business of selling intoxicating liquor at retail for use as a beverage is peculiarly subject not only to state but to local regulation.
2. The due process clause of our state constitution is not more restrictive than the due process clause of theFourteenth Amendment to the federal constitution. State v. Northwest Airlines, Inc. 213 Minn. 395, 7 N.W.2d 691 (affirmed,322 U.S. 292, 64 S. Ct. 950, 88 L. ed. 1283, 153 A.L.R. 245, rehearing denied, 323 U.S. 809, 65 S. Ct. 26, 89 L. ed. 645). Hence, decision under the Fourteenth Amendment will dispose also of the questions raised so far as our state constitution is concerned.
3. In sweeping language, the Supreme Court of the United States has held that selling intoxicating liquor for beverage purposes is not a right protected by the Fourteenth Amendment to the constitution of the United States. Crane v. Campbell,245 U.S. 304, 38 S. Ct. 98, 62 L. ed. 304; 30 Am. Jur., Intoxicating Liquors, § 205, and cases cited in note 1. In the Crane case the court said (245 U.S. 307, 38 S. Ct. 99,62 L. ed. 309):
"It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a State has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of theFourteenth Amendment." (Italics supplied.)
Selling intoxicating liquor for use as a beverage is a mere privilege subject to the police power of the state. Giozza v. Tiernan, 148 U.S. 657, 13 S. Ct. 721, 37 L. ed. 599; Kidd v. Pearson, 128 U.S. 1, 9 S. Ct. 6, 32 L. ed. 346; 30 Am. Jur., Intoxicating Liquors, §§ 19, 20, 275. Prohibiting the sale of intoxicating liquor for use as a beverage does not deprive any person of liberty or property and consequently does not constitute a violation of the due process clause of theFourteenth Amendment. Mugler v. Kansas, 123 U.S. 623,8 S. Ct. 273, 31 L. ed. 205; Abeln v. City of Shakopee, 224 Minn. 262,28 N.W.2d 642. Likewise, regulation of the privilege of selling intoxicating liquor for use as a beverage, imposing terms and conditions governing the business, involves no deprivation in a constitutional sense of the liberty or property of those engaged in the
business. See, 30 Am. Jur., Intoxicating Liquors, § 20, note 16. As Mr. Justice Field said in Crowley v. Christensen,137 U.S. 86, 91, 11 S. Ct. 13, 15, 34 L. ed. 620, 624:
"* * * There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority."
In Mayes v. Byers, 214 Minn. 54, 7 N.W.2d 403,144 A.L.R. 821, we expressed views in full accord with those announced in the Crowley case.
4. Because prohibiting one from engaging in the business of selling intoxicating liquor does not constitute a deprivation of either liberty or property, state and local regulations prohibiting the employment of women in places where intoxicating liquor is sold for consumption on the premises do not deprive women of liberty or property. City of De Ridder v. Mangano, 186 La. 129, 171 So. 826; Bergman v. Cleveland,39 Ohio St. 651; State v. Considine, 16 Wn. 358, 47 P. 755. In Fitzpatrick v. Liquor Control Comm. 316 Mich. 83,25 N.W.2d 118, 172 A.L.R. 608, and Annotation, it was held that prohibiting or regulating the employment of women in such places did not deprive women of property without due process or deny them the equal protection of the laws.
In Goesaert v. Cleary (D.C.) 74 F. Supp. 735, a three-judge federal court (one judge dissenting) held in an action to enjoin the enforcement of the Michigan statute that the statute was valid as against objections that it violated the requirements of due process and equal protection, following the Michigan court's decision in the Fitzpatrick case, and stated that, while that decision was not controlling upon a federal court, it was "persuasive."
In the Annotation in 172 A.L.R. 620, following the Fitzpatrick case, the validity and construction of ordinances regulating the em. ployment of women in places where intoxicating liquor is sold at
retail are elaborately considered. With the single exception of Brown v. Foley, 158 Fla. 734, 29 So.2d 870, the cases support the view that an ordinance such as the one here under consideration is valid. Referring to the Brown v. Foley case, the Annotation states: "The situation in Florida seems to be an anomalous one." 172 A.L.R. 626.
The authorities, with but a single exception, Matter of Maguire, 57 Cal. 604, 40 Am. R. 125, hold that prohibiting the employment of women as bartenders, waitresses, or otherwise in places where intoxicating liquor is sold to be drunk on the premises does not abridge any privilege or immunity of women as citizens of the United States in violation of theFourteenth Amendment or deny to them the equal protection of the laws in violation of the equal protection clause thereof. Cronin v. Adams, 192 U.S. 108, 24 S. Ct. 219, 48 L. ed. 365; In re Considine (C. C.) 83 F. 157; Ex parte Felchlin, 96 Cal. 360,31 P. 224, 31 A.S.R. 223; Foster v. Bd. of Police Commrs.102 Cal. 483, 37 P. 763, 41 A.S.R. 194; City of Hoboken v. Goodman, 68 N.J.L. 217, 51 A. 1092; Annotations, 18 L.R.A. (N.S.) 657, 48 L. ed. 365, 49 L.R.A. 111; 30 Am. Jur., Intoxicating Liquors, § 335; 48 C.J.S., Intoxicating Liquors, § 39; 2 Cooley, Constitutional Limitations (8 ed.) p. 1342, note 1. The language used in the authorities cited is not confined to the precise objections there considered, but is broad enough, like that used in the Crane case, supra, to indicate that the prohibition of the employment of women in such places violates no provision of the Fourteenth Amendment, including the due process clause. That conclusion is derived from the premise that a person has no inherent or constitutional right to sell intoxicating liquor at all, much less to do so because one engaged in the business happens to be a woman. Because that is true, the authorities cited support the conclusion that such a prohibition involves no deprivation of liberty or property in violation of the due process clause. The liberty to engage in an occupation protected by theFourteenth Amendment includes only the right "to engage in any of the common occupations of life." 2 Cooley, Constitutional Limitations (8 ed.) p. 824. As has been pointed out, selling intoxicating
liquor as a beverage is not such. "Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage." (Italics supplied.) Mugler v. Kansas, 123 U.S. 623, 662, 8 S. Ct. 273, 298,31 L. ed. 205, 211. Accord, Abeln v. City of Shakopee, 224 Minn. 262,28 N.W.2d 642, supra. We think it is clear that prohibiting the employment of women as bartenders is not unconstitutional as depriving them of liberty or property in violation of the due process clause of theFourteenth Amendment, and that this conclusion finds support not only in the authorities expressly so holding, but also, for the reasons stated, in the decisions of the Supreme Court of the United States and other courts sustaining such prohibition against other constitutional objections.
Matter of Maguire, supra, was decided under a constitutional provision reading that "No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession," and has been in effect overruled by subsequent decisions. People v. Jemnez, 49 Cal.App.2d Supp. 739, 741, 121 P.2d 543, 544.
5. Equal protection of the laws is claimed to be denied here, for the reasons that the ordinance in the first instance discriminates against women generally by according to men and by denying to women the privilege of being employed as bartenders in dispensing intoxicating liquors at retail for consumption on the premises where it is sold, and, in the second instance, by discriminating in favor of some women against all others by permitting some to be bartenders in such places and denying the privilege to all others.
The separate clauses of the Fourteenth Amendment guaranteeing due process of law and equal protection of the laws refer to separate rights. The purpose is to require equal protection as well as due process. 2 Cooley, Constitutional Limitations (8 ed.) p. 824. The requirement of equality has its roots in such universally accepted
maxims as: "All men are equal before the law"; "This is a government of laws and not of men"; "No man is above the law," and the like. See, Truax v. Corrigan, 257 U.S. 312, 332,42 S. Ct. 124, 129, 66 L. ed. 254, 263, 27 A.L.R. 375.
6. Equal protection of the laws applies to regulation of occupations which may be entirely prohibited as well as to those which are inherently lawful. As between the selling of intoxicating liquor and other less harmful callings, there may be discrimination against the former, but there can be none as between persons engaged in the business. Glicker v. Michigan Liquor Control Comm. (6 Cir.) 160 F.2d 96; Francis v. Fitzpatrick, 129 Conn. 619, 30 A.2d 552, 145 A.L.R. 505; State ex rel. Galle v. City of New Orleans, 113 La. 371,36 So. 999, 67 L.R.A. 70, 2 Ann. Cas. 92; 30 Am. Jur., Intoxicating Liquors, § 42.
7. It may be said generally that equal protection of the laws means that the rights of all persons must rest upon the same rule under the same circumstances. It requires equality of application of the laws; that all similarly circumstanced be treated alike. Louisville Gas Elec. Co. v. Coleman,277 U.S. 32, 48 S. Ct. 423, 72 L. ed. 770; Montgomery Ward Co. Inc. v. Commr. of Taxation, 216 Minn. 307, 12 N.W.2d 625; Mathison v. Minneapolis St. Ry. Co. 126 Minn. 286, 148 N.W. 71, L.R.A. 1916D, 412. But equality does not mean ironclad uniformity. As said in Whitney v. California, 274 U.S. 357, 369,47 S. Ct. 641, 646, 71 L. ed 1095, 1103 (vacating 269 U.S. 530,46 S. Ct. 22, 70 L. ed. 396):
"It is settled by repeated decisions of this Court that the equal protection clause does not take from a State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary; and that one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary."
The rule could not be otherwise. "The exercise of the legislative process necessarily involves classification." Lyons v. Spaeth, 220 Minn. 563, 571, 20 N.W.2d 481, 485, 162 A.L.R. 1041. Inability to classify for legislative purposes would leave the legislature helpless to adapt legislation to the varying needs and circumstances of society and to cope with evils as they actually exist.
The classification permissible under the equal protection clause of the Fourteenth Amendment must be based upon differences in the subjects classified and must bear some fair and substantial relation to the objects of the legislation. The difference between the subjects need not be great, and if any reasonable distinction between the subjects as a basis for classification can be found, the legislative classification should be sustained. A "narrow" distinction will suffice. New York Rapid Transit Corp. v. City of New York, 303 U.S. 573,58 S. Ct. 721, 82 L. ed. 1024, rehearing denied, 304 U.S. 588,58 S. Ct. 939, 82 L. ed. 1548; Montgomery Ward Co. Inc. v. Commr. of Taxation, supra.
8. A distinction for purposes of legislative classification based on sex does not deny equal protection where it bears some reasonable relation to the object sought to be accomplished by the legislation. Williams v. Evans, 139 Minn. 32,165 N.W. 495, 166 N.W. 504, L.R.A. 1918F, 542; 12 Am. Jur., Constitutional Law, § 496. Speaking for the court in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S. Ct. 578,585, 81 L. ed. 703, 713, 108 A.L.R. 1330, Mr. Chief Justice Hughes summarized the applicable rules in the following language:
"* * * This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature 'is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' If 'the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.' There is no 'doctrinaire requirement' that the legislation should be couched in all embracing terms. * * * This familiar principle has repeatedly been applied tolegislation which singles out women, and particular classes ofwomen, in the exercise of the State's protective power. * * * Their relative need in the presence of the evil, no less than the existence of the evil itself, is a matter for the legislative judgment." (Italics supplied.)
The distinction here involved of permitting men to be employed as bartenders and prohibiting women from being so employed rests upon substantial differences between the sexes and bears a just and reasonable relation to the objects to be accomplished by the ordinance. The ordinance is a police regulation of the retail "on sale" liquor business adopted to preserve the public peace, health, and safety. Just as legislation for the protection of women is permissible (West Coast Hotel Co. v. Parrish, supra), so, likewise, legislation may exclude women from certain employments. As said by Cooley (2 Cooley, Constitutional Limitations [8 ed.] p. 1342): "Some employments, for example, may be admissible for males and improper for females, and regulations recognizing the impropriety and forbidding women engaging in them would be open to no reasonable objection." In note I to the text are cited cases holding that forbidding the employment of women in selling intoxicating liquors does not deny them equal protection. The rule stated is supported by all the authorities, with the single exception of the Maguire case,supra, to which we have already alluded. In re Considine, 83 F. 157; People v. Jemnez, 49 Cal.App.2d Supp. 739, 121 P.2d 543; Foster v. Bd. of Police Commrs. 102 Cal. 483,37 P. 763, 41 A.S.R. 194; Fitzpatrick v. Liquor Control Comm. 316 Mich. 83, 25 N.W.2d 118, 172 A.L.R. 608; City of Hoboken v. Goodman, 68 N.J.L. 217, 51 A. 1092.
Prohibiting women from being bartenders and permitting men only to be such tends to accomplish the purpose of the ordinance. It is a matter of common knowledge that the owner of an establishment where intoxicating liquor is sold at retail for consumption on the premises where it is sold in the very nature of things cannot always be physically present to preserve peace and good order, and that in his absence those functions are delegated to his bartender as his servant in charge thereof. Decision in cases like State v. Sobelman,199 Minn. 232, 271 N.W. 484; Merrill v. Coates, 101 Minn. 43, 111 N.W. 836; Curran v. Olson, 88 Minn. 307,92 N.W. 1124, 60 L.R.A. 733, 97 A.S.R. 517; Mastad v. Swedish Brethren, 83 Minn. 40, 85 N.W. 913, 53 L.R.A. 803,85 A.S.R. 446; and Dice v. Sherberneau, 152 Mich. 601, 116 N.W. 416,16 L.R.A.(N.S.) 765, illustrate the likelihood of disorder in such establishments, because patrons when intoxicated are apt to become boisterous, quarrelsome, pugnacious, disorderly, and otherwise unrestrained in their conduct, and show the need for the presence of a man to effectually cope with such situations. As said in the Merrill case (101 Minn. 45, 111 N.W. 837):
"It was the duty of Rafidal [the bartender] to collect the money due for the liquor he sold to Merrill [a patron]. It was also his duty to maintain peace and quiet in the saloon, and, if necessary in order to accomplish this, he had the right to eject Merrill from the saloon, using such force only as was reasonably necessary for that purpose."
We think that there is factual basis for the city council's determination that there is a difference between men and women with respect to their ability and suitability to maintain peace and good order in such places. This, we think, is true in spite of the oft-asserted claim that as a matter of medical fact females are the stronger and not the weaker sex. And it is no less true because occasionally some woman demonstrates that she has the physical strength and disposition to be a so-called "bouncer."
The suggestion that the ordinance is unreasonable because of the fact that the city of St. Paul has an able police department is equivalent to saying that it is unreasonable to require the liquor business to police itself and not burden the public with the problems which the business itself creates. That notion has been generally rejected as wholly untenable. See, State v. Sobelman, supra. Why should the police department of St. Paul be required to suppress evils which the liquor business itself can prevent?
Furthermore, there is basis for holding that the employment of women as bartenders is opposed to sound public policy. See, In re Carragher, 149 Iowa 225, 128 N.W. 352, Ann. Cas. 1912C, 972,
31 L.R.A.(N.S.) 321. Permitting the employment of women as bar-tenders encourages the presence of women in drinking places as patrons thereof. It is needless to add that thereby drinking among women would be encouraged and that such a result is against the public interest.
9. Finally, plaintiff urges that if the ordinance is not unconstitutional upon the grounds already considered it should be so held for the reason that the exception permitting certain women to be employed as bartenders and prohibiting all others from being so employed violates the requirements of equal protection of the laws by granting the privilege to the former and denying it to the latter.
Equal protection of the laws does not prevent the exemption of particular persons or classes if the exemption rests upon a reasonable classification. Broad River Power Co. v. Query,288 U.S. 178, 53 S. Ct. 327, 77 L. ed. 685; State v. Marcus,210 Minn. 576, 299 N.W. 241; Mathison v. Minneapolis St. Ry. Co.126 Minn. 286, 148 N.W. 71, L.R.A. 1916D, 412. Exemption involves subclassification, which so far as concerns its constitutionality is but an additional classification and is governed by the principles generally applicable to that matter. See, State ex rel. Remick v. Clousing, 205 Minn. 296,285 N.W. 711, 123 A.L.R. 465.
Here, the distinction upon which some women are included and others excluded rests upon relation. The city and the female licensees included among those permitted to act as bartenders stand in the relation of licensor and licensee. A male licensee and his wife occupy the relation of husband and wife. A licensee in the armed forces and his female manager bear to each other the relation of principal and agent. Those relationships distinguish the female members thereof from other women.
Relation is a proper basis for classification if it bears some substantial relation to the objects of the legislation. "Classification" involves a determination of the relation between things and the grouping of some in classes because they agree with one another in certain particulars and differ from others in those particulars. See, Webster's New International Dictionary (2 ed.) 1947; Tanner v.
Little, 240 U.S. 369, 36 S. Ct. 379, 60 L. ed. 691; C. Thomas Stores Sales System, Inc. v. Spaeth, 209 Minn. 504, 514,297 N.W. 9, 16; Lyons v. Spaeth, 220 Minn. 563, 571,20 N.W.2d 481, 485, 162 A.L.R. 1041.
Much of our law, as Dean Pound has pointed out and as legal subject titles show, consists of principles governing particular relations such as husband and wife, master and servant, parent and child, principal and agent, vendor and purchaser, and the like, and not of rules having no regard to the relations to which they are to apply. We speak of the law of "domestic relations," which includes a group of different legal relations. Relations point to differences which by universal consent distinguish the members thereof from others and which make special rules appropriate to govern them. No one would contend that the relation of parent and child should be governed by the principles applicable to vendor and purchaser, and so on. In his volume, Interpretations of Legal History, Dean Pound says (p. 56):
"If we must find a fundamental idea in the common law, it is relation, not will. If the Romanist sees all problems in terms of the will of an actor and of the logical implications of what he has willed and done, the common-law lawyer sees almost all problems — all those, indeed, in which he was not led to adopt the Romanist's point of view in the last century — in terms of a relation and of the incidents in the way of reciprocal rights and duties involved in or required to give effect to that relation."
He says that "the idea of relation" is "a staple juristic conception"; that "On every side we think not of transactions but of relations" (p. 57), and that "the idea of relation" is "the central idea in our traditional mode of juristic thought" (p. 58). In this connection experience is paramount to pure theory. As Mr. Justice Holmes said in Patsone v. Pennsylvania,232 U.S. 138, 144, 34 S. Ct. 281, 282, 58 L. ed. 539, 543: "The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class." Relation of the members distinguishes the class. In certain cases the relation of the members of a class may be such as to justify
the imposition of liability without fault. New York Cent. R. Co. v. White, 243 U.S. 188, 204, 37 S. Ct. 247, 253,61 L. ed. 667, 675, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629; Mathison v. Minneapolis St. Ry. Co. 126 Minn. 286, 148 N.W. 71, L.R.A. 1916D, 412; see, 12 Am. Jur., Constitutional Law, § 662. Relation may afford a basis for legislation appropriate not only for the regulation of the rights and liabilities of the members of a class inter se, but also in other situations where relation is germane as being in furtherance of a justifiable policy, as in Magoun v. Illinois T. S. Bank,170 U.S. 283, 18 S. Ct. 594, 42 L. ed. 1037, where the relation of the transferees of property to the decedent or the lack thereof was held to be a proper basis for determining the rates of graduated inheritance taxes. See, 28 Am. Jur., Inheritance, Estate, and Gift Taxes, §§ 25-27.
The relations here of the women permitted to tend bar and those prohibited from doing so constitute a valid basis for the classification adopted in the ordinance here in question. Implicit in the licensing of the business of selling liquor at retail for consumption on the premises is the supposition that the licensing authority will be able to control the business by means of regulations. See, McPherson v. State, 174 Ind. 60,90 N.E. 610, 31 L.R.A.(N.S.) 188; 53 C.J.S., Licenses, § 2, p. 450. The relation of licensor and licensee existing between the city and female licensees not only distinguishes such licensees from other women, but affords the city as licensor such control over their conduct of their business as to achieve the objects of the ordinance. Because that is true, it constitutes a valid basis for classification. People v. Jemnez, 49 Cal.App.2d Supp. 739, 121 P.2d 543; Fitzpatrick v. Liquor Control Comm. 316 Mich. 83, 25 N.W.2d 118,172 A.L.R. 608. It should be added, as the record shows, that the number of women licensees is negligible, and that they cater to neighborhood trade, where the evils at which the ordinance is aimed are not prevalent. Under the West Coast Hotel Co. case,300 U.S. 379, 57 S. Ct. 578, 81 L. ed. 703, 108 A.L.R. 1330,supra, it is a case simply of excluding a situation where the evil is not felt.
The wife of a licensee is in no sense an employe. Of course she could be excluded the same as other women. City of De Ridder v. Mangano, 186 La. 129, 171 So. 826. But, because of her relationship to her husband, she may be included in those permitted to act as a bartender. Presumably her interest is that of her husband. It is reasonable to assume that a male licensee of a place selling intoxicating liquor "on sale" has such control over his wife because of their relationship and that she has such financial interest in the lawful conduct of his business as to furnish sufficient safeguard against any violation of regulations imposed upon the business by public authority. Fitzpatrick v. Liquor Control Comm. supra. Because that is true, the classification here involves no violation of the requirements of equal protection. City of Hoboken v. Goodman, 68 N.J.L. 217, 51 A. 1092; People v. Jemnez, supra. As said in the last cited case (49 Cal. App. [2d] Supp. 743, 121 P. [2d] 545):
"* * * As to the wife of a licensee, she is more nearly in the position of a licensee than in that of an employee and her presence may fairly be considered to be a restraint upon impropriety. A mere employee would not have the same incentive to prevent improprieties that either a licensee or the wife of a licensee would naturally have. Furthermore, the legislature may well have concluded that it would be an unwholesome influence upon the women themselves, the general public, and upon our young people, to permit women generally to act as bartenders. The precise classification here involved was approved in City of Hoboken v. Goodman, supra."
What has been said concerning the wife of a licensee is true also of a manager of a licensee who is in the armed forces. A manager is no ordinary employe. "The designation of 'Manager' implies general powers." Whipple v. Prudential Ins. Co.222 N.Y. 39, 46, 118 N.E. 211, 213. A manager, as we said of a "managing agent" in Hatinen v. Payne, 150 Minn. 344, 346,185 N.W. 386, 387, is vested "with powers requiring the exercise of an independent judgment and discretion." He is truly the alter ego of his principal. In pointing out the distinction between an ordinary employe, such as the female
waitresses permitted here in drinking establishments, and anagent, such as a manager here involved, 2 Am. Jur., Agency, § 7, states:
"* * * The vital point of distinction is that the agent is not only employed by the principal, but represents him as well. He is the business representative of the principal and acts not only for the principal, but in the place and instead of the principal."
The distinction between a manager and other women, including those employed as waitresses, is fundamental. It bears upon responsibility and control. The assumption underlying the ordinance is that the relationship of owner and managing agent justifies the belief that the agent will faithfully discharge the duties of the owner and thus comply with the ordinance. There is no suggestion here that the assumption lacks factual basis. Such an assumption is reasonable. Such an agent has ample authority to do whatever is necessary to comply with the ordinance, including the hiring of suitable employes for such purpose, the same as the licensee, and presumably he would exercise it for such purpose. The fact that such an agent is a woman is no reason for believing that she would be remiss in discharging the duties undertaken by her. The common experience of successful and faithful operation of not only local, but of farflung nationwide and world-wide business enterprises, some of which are subject to local licensing, by managing agents, including both men and women, for owners as distant from them as are the licensor-owners in the armed service from their female managers affords spectacular, proof that there may be complete identity between principal and agent with respect to the operation of the former's business by the latter, regardless of the sex of the agent and of the fact that the business is one subject to licensing. There is no reason why the city council in adopting the ordinance in question should not act upon an assumption so verified by experience. While one of the objects of the provision relative to female managers of licensees in the armed forces is to protect men in the armed forces in their license privileges, that feature is incidental and, so far from being objectionable, is in conformity with the universal opinion that the interests at home of men away in the armed forces should be protected.
See, Boone v. Lightner, 319 U.S. 561, 63 S. Ct. 1223,87 L.ed. 1587.
It is no answer to say that the work done by bartenders and waitresses is not essentially different, for the reason that the work of both is concerned with a phase of selling intoxicating liquors, the one with mixing and dispensing and the other with serving. Such an argument ignores the purpose of the ordinance and the basis of the classification. The classification rests upon real distinctions which bear a fair and substantial relation to the objects to be achieved by the ordinance.
The case of Brown v. Foley, 158 Fla. 734, 29 So.2d 870, overruling Nelson v. State, 157 Fla. 412, 26 So.2d 60, is cited contra and is urged upon us as not only announcing the correct rule, but as indicating the tendency of judicial thought. It is opposed to what we deem to be sound and settled principles, and therefore we refuse to follow it. As has been said, the situation in Florida is regarded as "anomalous." 172 A.L.R. 626.
10. Determination that the ordinance provides for reasonable classification in distinguishing between men and women with respect to the right to engage in the occupation of bartender and between women with respect to that right by excluding entirely all women except those mentioned settles the question whether the ordinance is a reasonable one. Our approach to decision of the question should be an objective one. Even where we might think that the arguments against the policy, expediency, wisdom, and propriety of the ordinance outweigh those in favor of it, it is our duty to sustain the ordinance if there is any reasonable basis for it. As said in State ex rel. Dybdal v. State Securities Comm. 145 Minn. 221,176 N.W. 759, we cannot disturb a determination simply because we do not agree with it. The regulation of the business of selling intoxicating liquor at retail is one peculiarly subject to the discretion of those charged with the regulatory function. Here, as in other cases, we should remember what is said in 37 Am.Jur., Municipal Corporations, § 180:
"* * * For example, a municipal corporation possesses a wide discretion in enacting legislation for the promotion and perpetuation of the general welfare of the community and for the protection and preservation of the public health or safety. The council's discretion, and not the court's, must control.In such matters the Municipal authorities are usuallybetter judges than the courts, and their attempted exercise of discretion can be controlled only after abuse in cases of action clearly unreasonable and oppressive." (Italics supplied.)
Furthermore, it is not permissible for the courts to inquire into the motives of the city council in enacting the ordinance for the purpose of assailing its validity. Higgins v. Lacroix,119 Minn. 145, 137 N.W. 417, 41 L.R.A. (N.S.) 737. The motives of persons interested in securing the enactment of the ordinance are wholly immaterial. That sort of inquiry is forbidden. As said in 37 Am. Jur., Municipal Corporations, § 182:
"It has been held that the validity of an ordinance is not affected by the motives of persons who press for, and by their efforts, procure its passage. An ordinance will not be declared void merely because it was enacted at the solicitation of persons residing in the vicinity of certain premises and solely in their behalf as a local and special regulation."
Our conclusion is that the ordinance in question is not objectionable upon any ground urged here.4 The classification made by the city council was one within its province. In this, as in other cases, the court, keeping within its own province, intimates no opinion as to the expediency or wisdom of the ordinance.
Affirmed.
2 Proceedings of St. Paul City Council (1984) p. 21.
3 Proceedings of St. Paul City Council (1945) p. 156.
4 The authorities supporting the views herein expressed include not only those 40 and 50 years old, but some decided within the last year or so and one decided after the oral argument. People v. Jemnez, 49 Cal.App.2d Supp. 739,121 P.2d 543, supra, was decided on January 27, 1942, and Fitzpatrick v. Liquor Control Comm. 316 Mich. 83,25 N.W.2d 118, 172 A.L.R. 608, supra, on December 2, 1946. Goesaert v. Cleary (D.C.) 74 F. Supp. 735, supra, was decided on November 20, 1947, about two weeks after oral argument here. The Annotation at 172 A.L.R. 620 was published in 1948.