Montgomery, J.,
after stating the facts. The plaintiff commenced this action for relief by injunction, his object being to avail himself of the benefits of his license and at the same time to restrain and enjoin the defendant from enforcing the ordinances, on the ground that they were oppressive, vexatious and unreasonable. He is met in limine by the contention on the part of the defendants that he cannot try the validity of an ordinance of a municipal corporation by injunction, and that he can have no relief in equity because he can have full relief in a court of law if the ordinance be unlawful. The cases of Cohen v. Comrs., 77 N. C., 2; Wardens v. Washington, 109 N. C., 21; Scott v. Smith, 121 N. C., 94, were cited in the argument of the defendant’s counsel here in support of the contention.
In answer to that position the counsel of the appellant, while questioning the correctness of the law of those cases, yet insists that the facts there can be distinguished from those in the present case; that the reason assigned in those cases by the Court for denying redress, in equity, is that the plaintiff could have complete redress in an action at law for damages; that the Court certainly could not have meant that damages could be recovered against the municipal corporations, for the reason that municipal corporations [369] are not liable for torts in the nature of trespass committed by tbeir officers (policemen) when they undertake to' enforce unconstitutional and void ordinances enacted in the attempted exercise of police powers or public or governmental functions; nor could it have intended to say that damages could be recovered against the members of the boards of aldermen of cities and towns, individually or personally; for municipal officers who enact ordinances under a claim of power from the legislative branch of the government are vested with the immunities and privileges of government, and consequently are exempt from liability if they have made a mistaken use of their powers, and that the Court must have meant, therefore, that the policemen who actually made the arrests under an unconstitutional municipal ordinance are liable in damages to the person aggrieved. And the counsel of the appellant further insisted that, as in the present case the policemen are and were insolvent, and on that account a recovery against them would be worthless and afford no redress to the appellant for injuries he may have sustained if the ordinances are void, the case was easily to be distinguished from Cohen v. Commissioners, supra, and the other similar cases mentioned, where it did not appear that the officers making the arrests were insolvent.
The counsel further contended that the suggestion made in Wardens v. Washington, supra, that one who doubts the validity of a municipal ordinance might raise the question by a defense of himself when he might be arraigned upon a criminal charge for an alleged violation of a town ordinance, places the complainant at a disadvantage; that it would be a hard law to compel a citizen who has no redress in the way of damages against the municipal corporation or its aider-men personally, or from the constable or policeman (on account of his insolvency) who makes an arrest under an [370] unlawful ordinance, to compel bim to violate the law (the ordinance) at his peril in order to test its validity.
The writer of this opinion is in sympathy with the argument of the counsel of the appellant, but the majority of the Court are of the opinion that the law as laid down in the cases above cited is correct^ in principle and applies to the facts of this case, and to all others in which the attempt may be made to test the validity of a municipal ordinance by injunction. That view of the case by the Court will relieve us of the consideration of the question of the alleged unlawfulness of the ordinance, but as a decision upon that branch of the case would be of so much importance to the public, we will now take up that question for discussion and decision.
No question can be raised in this case as to the power of the Board of Aldermen to pass reasonable ordinances to restrict and regulate the liquor traffic in Washington, and even to prohibit it if they see fit to do so. In section 18 of chapter 170, Private Laws of 1903, entitled “An Act to incorporate the city of Washington,” it is enacted “that among the powers conferred on the Board of Aldermen are these: They may * * * regulate, control, tax, license or prevent the establishment of junk and pawn shops, their keepers or brokers, and the sale of spirituous, vinous or malt liquors; * * provide for the proper observance of the Sabbath, and the preservation of the peace, order and tranquility of the city.” It was argued in this Court for the defendant that as the Board of Aldermen were given the power to prevent the sale of intoxicating liquors within the city limits, therefore, under the maxim that “the greater includes the less,” ordinances regulating and restricting the traffic, if the aldermen should see fit not to prevent but to license, whether reasonable or unreasonable, were matters in their discretion and not reviewable by the Courts. We think that that is not a proper view of the powers of the alder[371] men or of tbe rights of those who may be licensed to sell liquor by the board. They, as we have said, had the right to prevent or prohibit entirely the sale of liquor. They had also the power to license the traffic and to regulate it, and having adopted as a choice the plan of licensing and then regulating, it must follow that regulations and restrictions must be such as are reasonable, and their reasonableness must be, in case of contest, finally decided by the courts. State v. Taft, 118 N. C., 1190, 32 L. R. A., 122, 54 Am. St. Rep., 768; State v. Yopp, 97 N. C., 477, 2 Am. St. Rep., 305.
In the consideration of the reasonableness of these ordinances, it must be understood that they are to be discussed from the point of vieAv of our State legislation on the subject of the liquor traffic and the decisions of our courts upon that legislation. The restrictions and limitations with which the legislative branch of our government for many years past, at the demand of a strong and aggressive sentiment, individual and public, against the evils of intemperance have environed this traffic, and the firm support of this legislation by the courts afford unmistakable evidence that the traffic is dangerous to society in its moral effects, and injurious to the material welfare of the ConrmonAvealth. The police power, directly through the Legislature and indirectly through municipal corporations, is being more and more exercised in the regulation and suppression of the sale of liquor on the theory that it is evil in its nature, until such legislation has grown into a system of temperance legislation. Each encroachment, hoAvever, has been stubbornly resisted by those engaged in the trade. This Court has in no uncertain language approved of the legislation on this subject. In Bailey v. Raleigh, 130 N. C., 209, 58 L. R. A., 178, the Court said, referring to the restrictions in the Prohibition Act for Raleigh: “This is done under the exer[372] cise of tbe police power, owing to the evil tendency of the business”; and in State v. Ray, 131 N. C., 814, 60 L. R. A., 634, 92 Am. St. Rep., 795, “liquor itself is regarded as an evil, an enemy of civilization and good government.”
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Montgomery, J.,
after stating the facts. The plaintiff commenced this action for relief by injunction, his object being to avail himself of the benefits of his license and at the same time to restrain and enjoin the defendant from enforcing the ordinances, on the ground that they were oppressive, vexatious and unreasonable. He is met in limine by the contention on the part of the defendants that he cannot try the validity of an ordinance of a municipal corporation by injunction, and that he can have no relief in equity because he can have full relief in a court of law if the ordinance be unlawful. The cases of Cohen v. Comrs., 77 N. C., 2; Wardens v. Washington, 109 N. C., 21; Scott v. Smith, 121 N. C., 94, were cited in the argument of the defendant’s counsel here in support of the contention.
In answer to that position the counsel of the appellant, while questioning the correctness of the law of those cases, yet insists that the facts there can be distinguished from those in the present case; that the reason assigned in those cases by the Court for denying redress, in equity, is that the plaintiff could have complete redress in an action at law for damages; that the Court certainly could not have meant that damages could be recovered against the municipal corporations, for the reason that municipal corporations [369] are not liable for torts in the nature of trespass committed by tbeir officers (policemen) when they undertake to' enforce unconstitutional and void ordinances enacted in the attempted exercise of police powers or public or governmental functions; nor could it have intended to say that damages could be recovered against the members of the boards of aldermen of cities and towns, individually or personally; for municipal officers who enact ordinances under a claim of power from the legislative branch of the government are vested with the immunities and privileges of government, and consequently are exempt from liability if they have made a mistaken use of their powers, and that the Court must have meant, therefore, that the policemen who actually made the arrests under an unconstitutional municipal ordinance are liable in damages to the person aggrieved. And the counsel of the appellant further insisted that, as in the present case the policemen are and were insolvent, and on that account a recovery against them would be worthless and afford no redress to the appellant for injuries he may have sustained if the ordinances are void, the case was easily to be distinguished from Cohen v. Commissioners, supra, and the other similar cases mentioned, where it did not appear that the officers making the arrests were insolvent.
The counsel further contended that the suggestion made in Wardens v. Washington, supra, that one who doubts the validity of a municipal ordinance might raise the question by a defense of himself when he might be arraigned upon a criminal charge for an alleged violation of a town ordinance, places the complainant at a disadvantage; that it would be a hard law to compel a citizen who has no redress in the way of damages against the municipal corporation or its aider-men personally, or from the constable or policeman (on account of his insolvency) who makes an arrest under an [370] unlawful ordinance, to compel bim to violate the law (the ordinance) at his peril in order to test its validity.
The writer of this opinion is in sympathy with the argument of the counsel of the appellant, but the majority of the Court are of the opinion that the law as laid down in the cases above cited is correct^ in principle and applies to the facts of this case, and to all others in which the attempt may be made to test the validity of a municipal ordinance by injunction. That view of the case by the Court will relieve us of the consideration of the question of the alleged unlawfulness of the ordinance, but as a decision upon that branch of the case would be of so much importance to the public, we will now take up that question for discussion and decision.
No question can be raised in this case as to the power of the Board of Aldermen to pass reasonable ordinances to restrict and regulate the liquor traffic in Washington, and even to prohibit it if they see fit to do so. In section 18 of chapter 170, Private Laws of 1903, entitled “An Act to incorporate the city of Washington,” it is enacted “that among the powers conferred on the Board of Aldermen are these: They may * * * regulate, control, tax, license or prevent the establishment of junk and pawn shops, their keepers or brokers, and the sale of spirituous, vinous or malt liquors; * * provide for the proper observance of the Sabbath, and the preservation of the peace, order and tranquility of the city.” It was argued in this Court for the defendant that as the Board of Aldermen were given the power to prevent the sale of intoxicating liquors within the city limits, therefore, under the maxim that “the greater includes the less,” ordinances regulating and restricting the traffic, if the aldermen should see fit not to prevent but to license, whether reasonable or unreasonable, were matters in their discretion and not reviewable by the Courts. We think that that is not a proper view of the powers of the alder[371] men or of tbe rights of those who may be licensed to sell liquor by the board. They, as we have said, had the right to prevent or prohibit entirely the sale of liquor. They had also the power to license the traffic and to regulate it, and having adopted as a choice the plan of licensing and then regulating, it must follow that regulations and restrictions must be such as are reasonable, and their reasonableness must be, in case of contest, finally decided by the courts. State v. Taft, 118 N. C., 1190, 32 L. R. A., 122, 54 Am. St. Rep., 768; State v. Yopp, 97 N. C., 477, 2 Am. St. Rep., 305.
In the consideration of the reasonableness of these ordinances, it must be understood that they are to be discussed from the point of vieAv of our State legislation on the subject of the liquor traffic and the decisions of our courts upon that legislation. The restrictions and limitations with which the legislative branch of our government for many years past, at the demand of a strong and aggressive sentiment, individual and public, against the evils of intemperance have environed this traffic, and the firm support of this legislation by the courts afford unmistakable evidence that the traffic is dangerous to society in its moral effects, and injurious to the material welfare of the ConrmonAvealth. The police power, directly through the Legislature and indirectly through municipal corporations, is being more and more exercised in the regulation and suppression of the sale of liquor on the theory that it is evil in its nature, until such legislation has grown into a system of temperance legislation. Each encroachment, hoAvever, has been stubbornly resisted by those engaged in the trade. This Court has in no uncertain language approved of the legislation on this subject. In Bailey v. Raleigh, 130 N. C., 209, 58 L. R. A., 178, the Court said, referring to the restrictions in the Prohibition Act for Raleigh: “This is done under the exer[372] cise of tbe police power, owing to the evil tendency of the business”; and in State v. Ray, 131 N. C., 814, 60 L. R. A., 634, 92 Am. St. Rep., 795, “liquor itself is regarded as an evil, an enemy of civilization and good government.”
Erom the standpoint of the statute law on the subject and the decisions of the Court, the rule with reference to what ,the law would regard as undue restrictions upon a useful business cannot be the same as that applicable to the liquor traffic. What would be a deprivation of the use of property without due process of law, or an infringement of personal liberty against one engaged in a useful trade, would mot be such when considered in connection with the property or person with one engaged in the sale of intoxicating liquors, as is pointed out in State v. Ray, supra, where the Court said: “It must be understood that they (saloons) stand on a very different footing to the sale of dry goods and family groceries. Liquor itself is regarded as an evil, an enemy of civilization and good government. Its sale without a license is condemned and prohibited by law, and the regulations closing at certain hours such shops might well be put upon the implied power as being for the public good.”-
In looking at the ordinances as a whole, it is readily seen that the aldermen in enacting them had in view the purpose to cause the licensee to give publicness to whatever might go on inside of the place in which liquors might be sold instead of allowing secrecy about the matter; to break up, as far as possible, loafing and loitering in saloons; to prohibit the young or those who might not be permitted to enter the front doors to come in by means of side and rear doors in a clandestine manner, or to get liquor from rear and side doors, or to do indirectly the same thing by means of having eating-houses connected with the drinking places; to take from the saloons enticements and allurements which have a tendency to attract the senses and develop and foster [373] the susceptibility of vice and immorality; to close the saloon at hours when general work is over for the day, to the end that the inexperienced, the young and impressionable and the unfortunate of those who have been at work in useful occupations may not be induced to spend their evenings and their money in the barroom; and to have lights kept burning and doors closed during prohibited hours, that the officials may more easily preserve the public peace and order, and that the public may know that the laws in respect to the retailing of intoxicating liquors are being obeyed.
In respect to the first ordinance, it is insisted for the plaintiff that that part forbidding the use of partitions was not only enacted without authority and is unreasonable, but that it is positively mischievous in that it prevents the separation of the white and negro races while they are drinking in the saloon. The law has no requirement for race' separation in barrooms, and if their keepers think it necessary to make the separation there is really nothing in the ordinance that prevents them from so doing. The partition can be run from the front toward the counter, and one side can be allotted to one race and the other to the other, and the ordinance will not be violated; for it only provides that the partitions or screens shall not “conceal or cut off any view of any person or persons in such saloon, salesroom or place of business, from and through the front doors and windows thereof.” We have no decisions of this Court on the subject of the power of municipal corporations, or even of the General Assembly, to prohibit the use in saloons of storm doors, screens, stained glass or any contrivances which obstruct the view of the interior of saloons, or as to what kind of doors and windows, whether of glass or of other material, shall be used; but the decisions from other States fully sustain the requirements of the first ordinance in all these [374] respects, and we are of the opinion that the ordinance is a reasonable one.
We think further that that part of the ordinance which requires that all liquors shall be served at the counter and shall be drunk at the counter is also a reasonable requirement, being calculated to prevent loafing and loitering, and also to diminish the quantity that might be drunk. Drinking to excess would certainly be more apt to take place where guests could be seated around tables or on lounges with other attractions that might be offered.
In regard to the second ordinance, the contention of the plaintiff is that it is “arbitrary, oppressive, vexatious, unreasonable and void,” in that it deprives the plaintiff of the use and convenience of his property without due process of law. By that ordinance saloon-keepers and their servants and employees are not permitted to use any side or rear doors, or trap-doors, elevators or stairways for the purpose of selling or delivering liquor through such communications, but the ordinance does not prohibit the use of such entrances and exits for any other purposes than the sale and delivery of liquors. That certainly is a restriction upon the plaintiff’s property, but in our opinion it is not an unreasonable restriction; certainly not one so unreasonable as to warrant us to declare it void. As was said in the case of State v. Yopp, 97 N. C., 477, “Such statutes (police regulations) are valid unless the purpose or necessary effect is not to regulate the use of property but to destroy it. As we have said, it is the province of the Legislature to decide upon the wisdom and expediency of such regulations and restraints, and the courts cannot declare them void or interfere with their operations unless they are so manifestly unjust and unreasonable as to destroy the lawful use of property, and hence are not within the proper exercise of the police power of the government. Courts cannot regulate [375] tbe exercise of tbis power — they can only declare the invalidity of statutes that transcend its limits. The exercise of this power does not extend to the destruction of property under the form of regulating the use of it, unless in cases where the property or the use of it constitutes a nuisance.” The plaintiff’s property is not destroyed by this ordinance. It is true the regulations concerning its use by the aldermen are stringent, but we cannot say they are too much so, when the purposes for which the building is being used are taken into consideration. The Board of Aldermen have said that that part of the plaintiff’s building which he uses for the sale of liquor is a suitable place and sufficient for that purpose, and that the use of the forbidden parts of that building in connection with the sale of liquor are not necessary and would prevent, if so used, the proper regulation of the sale of spirituous liquors. We have no doubt that the defendants, under the power given in the charter, had a right to confine the sale of liquor to a particular room in that building, and to prohibit the use of side and rear doors, trap-doors, elevators and stairways leading to and out of that room for the purposes of selling or delivering liquors.
It ,is contended that the third ordinance is unlawful for the reason that it prohibits the selling or giving away liquors between the hours of eight o’clock in the evening and six o’clock in the morning, and also that it prohibits the saloon-keeper or his employees to open the doors, or allow them to remain open between said hours. In State v. Thomas, 118 N. C., 1221, the hours prescribed by the ordinance were ten o’clock p. m. and four o’clock a. m., and there was no question made in that case on the reasonableness of such hours. It seems to us that the hours of closing and opening m the case before us are not unreasonable. Eor a few months in the year there might be, in the mornings, a [376] couple of hours of daylight in which the retailing of liquor might be carried on, but it does seem that those hours— hours in which the greater number in each community is engaged in preparing for the day’s duties and living — might be spent in some useful way without injury to the saloon-keeper. He would then have nearly fourteen hours in which to supply the demand for his wares. That ought to be ample time for all legitimate needs and necessities.
So far as the requirement in the fourth ordinance, that places for the retailing of liquor shall be kept reasonably lighted, it seems to us there can be no just objection, for, on its face, it seems a very fair and proper police regulation; but in respect to that requirement which makes it unlawful for the owners of saloons to enter their buildings between the hours of closing on Saturday night at eight o’clock and the hour for opening next Monday morning at six o’clock, we have some doubt. In the case of State v. Thomas, 118 N. C., 1221, the charge was that the defendant remained in his barroom after the hour prescribed for closing. In that case the ordinance made “it unlawful for any barkeeper, clerk or agent or any person whatsoever to keep open or be or remain in a barroom or other place where spirituous or intoxicating liquors are sold between ten o’clock p. m. and four o’clock a. m. The Court there held that the charter of Marion did not empower the town to pass the ordinance, and that under the general law, The Code, section 3800, the power did not exist to pass the ordinance. Under the charter of the city of Washington the Board of Aldermen, as we have seen, had the power either to prohibit the sale of liquor or to regulate and control its sale, and the only question is whether this part of the fourth ordinance, preventing the owners of saloons from entering their saloons during Sundays, is reasonable. As we have said, we have our doubts about this matter, but as that part [377] of tbe ordinance is not clearly unreasonable, and remembering that the Board of Aldermen have full opportunity to judge of such a necessity, we do not feel called upon to set aside their judgment by declaring the ordinance invalid on the ground that it is unreasonable. We cannot see that the objections to the fifth ordinance are reasonable objections. Billiard tables, pool tables, gaming tables, ten-pin alleys, and other gaming devices, whether played for amusement and exercise or for anything of value, are such attractions as ought not to be used in saloons where liquor is sold. They entice and allure men into the temptation to drink, and encourage loafing and lounging. It is true that in the Revenue Laws of 1903 a tax is levied on billiard and pool tables and bowling alleys connected with any place where liquor is sold or allowed to be drunk, whether kept under the same roof or not, but it does not follow from this that it is not in the power of a municipal government that is authorized by its charter to prohibit the sale of liquor, or to license its sale and then regulate it and declare that billiard and pool tables shall not be used in connection with barrooms. It is only where they are not prohibited from being used by the lawful authority that they can be taxed. Under the fifth ordinance there is no prohibition against the use of restaurants or eating-houses, rooms or tables for providing or furnishing food, being kept in the same building in which liquor is sold, but the prohibition is against having such restaurants or eating-houses connected with the barroom. We cannot say that that prohibition is unreasonable. The sixth ordinance enacts that no place where spirituous, malt or vinous liquors are sold or disposed of shall be in any building in which there is a restaurant, eating-house, room or any means or contrivance for providing or furnishing food, unless the two places shall be separated by one or more solid upright perpendicular walls with no [378] doors nor openings of any kind therein. That seems to ns a very proper regulation. Such a condition of affairs we can see would be most conclusive to tbe bringing together of elements of society whose conduct in many instances would tend to produce disorder. We may take judicial notice of a fact so well known, that these joint eating-houses and drinking saloons afford opportunities for carousals and lawlessness, and are sore spots in many communities.
It is provided in the seventh ordinance that in case of a violation of any of the ordinances of the town regulating the sale of liquor by one licensed to sell liquor, the Board of Aldermen may have the power to investigate the matter and to revoke the license in case it should be found that the ordinance had been violated. We see no objection to the ordinance as applicable to this case, especially as the plaintiff in this case had agreed to that method of trial. But if that ordinance was invalid, yet the others would not be affected, and the plaintiff or any licensee of the Board of Aldermen of Washington might be made to pay the fines mentioned in the ordinances by the proper tribunal, upon its being made to appear that the ordinance had been violated.
Chapter 233 of the Acts of 1903 has no application to the city of Washington, for, as we have seen, the charter of that city confers on the aldermen the power to regulate or to prevent the sale of intoxicating liquors, and section 19 of chapter 233 of the Laws of 1903 particularly declares the purpose of the act to be not to interfere with' such municipalities or territories as are given the power to regulate or to prohibit the sale of intoxicating liquors.
No Error.