Dewar v. People

40 Mich. 401, 1879 Mich. LEXIS 584

• Court: Michigan Supreme Court
• Decided: January 31, 1879
• Status: Published

Opinion

Cooley, J.

The charter of thev city of Ludington, enacted in 1873, empowers the common council, among other things, “To license and regulate saloons, restaurants, and billiard rooms, or prohibit the same or any of them.” Laws 1873, vol. 2, p. 171. When this charter was granted, the constitution of the State provided that “The legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors.” Art. IV., § 47. While this remained in force it was of course as incompetent for the legislature to act indirectly through municipal authorities in the grant of licenses, as to do so by more direct action. The .section, however, was stricken from the constitution by a vote of the people taken in the year 1876.

In 1878, after the constitution had been thus amended, the common council of Ludington passed an ordinance which by its first section provided that “No person or persons shall keep or maintain a saloon or restaurant within the limits of the city of Ludington without first obtaining a license therefor in the manner hereinafter provided.” Other sections pointed out the method of obtaining a license, and fixed the license fee at one hundred and fifty dollars a year. The tenth section declared that “The words saloon and restaurant as used in this ordinance shall not be construed to include any place of business kept exclusively for the purpose of furnishing meals, nor to any place of business kept exclusively and only for the purpose of selling any or all of the following articles, to-wit: cigars, tobacco, confectionery, nuts, candies, ice cream, pop, cakes, fruits, vegetables or lemonade.”

These exceptions seem carefully designed to exclude from the operation of the ordinance all keepers of saloons' and restaurants not engaged in the sale of intoxicating drinks, but to include all those who are or shall be so engaged. The ordinance is therefore manifestly an ordinance to license saloons and restaurants for the sale of intoxicating drinks, because in its terms it manifestly applies to them and not to others. It is in this particular radically different from the ordinance of Ann Arbor which was sustained in Kitson v. Ann Arbor, 26 Mich., 325, for that applied to saloons generally.

Treating this as an ordinance for the licensing of places for the sale of intoxicating drinks, it is plain that it cannot be sustained. The legislature of 1873 had no power, under the constitution as it then whs, to authorize such licenses, and it is not presumable that any unconstitutional power was intended to be exercised in granting the charter. But if the charter at that time did not confer or attempt to confer the authority, neither does it do so now. The meaning of the charter is the same to-day that it was when adopted, and it cannot be affected and enlarged by any subsequent change of the constitution. The intent to be sought for in the ■charter is the intent of the body which passed it, namely, the legislature of 1873; and that was clearly not an intent to authorize the licensing of sales of intoxicating •drinks. The conviction was therefore erroneous.

The conviction must be reversed with costs against ■the city.

The other Justices concurred.