Snow Land, Inc. v. City of Brookings

282 N.W.2d 607, 1979 S.D. LEXIS 272

Opinions

DOBBERPUHL, Circuit Judge.

Appellant is a licensed owner and operator of two low-point beer establishments in the city of Brookings.¹ In 1970, Respondent-City enacted an ordinance prohibiting the sale of all alcoholic beverages on Sundays. This ordinance was amended in May of 1978 but retains the same prohibition. In 1971, the statute which expressly authorized municipalities to prohibit the sale of alcoholic beverages on Sundays was repealed.² That same year the legislature enacted SDCL 35-4-81 which prohibits the sale of alcoholic beverages, except low-point beer, at certain times and on certain days including Sundays. Also enacted in 1971 was SDCL 35-6-30 which prohibits the sale of low-point beer between the hours of 1:00 a. m. and 7:00 a. m. Appellant contends that the trial court erred in its determination that the amended ordinance is not in conflict with these statutes and that a municipality has the authority under state law to prohibit the sale of low-point beer on Sundays.

Low-point beer is included in the statutory definition of “alcoholic beverages.” SDCL 35-1-1(3). Municipalities in South Dakota have the authority to prohibit or regulate the transaction of alcoholic beverages so long as the prohibitions and regulations are consistent with the provisions of Title 35. SDCL 9-29-7. The sale of low-point beer, however, may not be completely prohibited by a municipality since the “local option” statute,³ which allows electors to determine whether alcoholic beverages shall be sold within the municipality, applies only to the sale of alcoholic beverages other than low-point beer. From this statutory scheme, it is evident that a municipality may regulate, though not prohibit, the sale of low-point beer in a manner consistent with the provisions of Title 35.

Chapter 35-6 deals exclusively with the sale of low-point beer and Chapter 35 — 4 governs the sale of all other alcoholic beverages. Appellant contends that SDCL 35 — 4— 81 allows a municipality to prohibit the sale of alcoholic beverages other than low-point beer on Sundays but, by excluding low-point beer from its purview, precludes the municipality from prohibiting the sale of low-point beer on that day. Appellant’s reliance on that statute is misplaced. The issue presented by appellant focuses solely on the sale of low-point beer. Since all regulatory ordinances must be consistent with Title 35, and appellant is concerned only with the ordinance’s effect on the s.ale of low-point beer, it follows that the ordinance here in question must be consistent with Chapter 35-6 to be valid. Chapter 35-4 is totally irrelevant. The clause in SDCL 35-4-81 which excepts low-point beer was obviously placed in that statute only to avoid confusion as to the applicability of Chapters 35-4 and 35-6. This is reinforced by SDCL 35 — 4-1 which states: “The provisions of this chapter, unless the context otherwise clearly requires, shall be construed to relate to all alcoholic beverages except low-point beer.” (emphasis added) It is evident that the legislature intended the clause “except low-point beer” to be construed in SDCL 35 — 4-81 to mean that that statute is to have no effect on the regulation of the sale of low-point beer. Thus, it is SDCL 35-6-30, and not SDCL 35 — 4-81, that must guide us in determining whether the ordinance is in conflict with state law.

The rule uniformly applied in other jurisdictions in analogous cases is that an ordinance which “enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict unless that statute limits the requirement for all cases to its own prescriptions.” City of Maryville v. Wood, 358 Mo. 584, 589, 216 S.W.2d 75, 77 (1948).⁴ All that is necessary for the additional regulations to be valid is that they be reasonable and further the general law. Leavenworth Club Owners Association v. Atchison, 208 Kan. 318, 492 P.2d 183 (1971). A conflict arises between an ordinance and a statute only when their express or implied terms are irreconcilable, where the ordinance permits that which the statute forbids, or where the ordinance forbids that which the statute expressly permits. Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d 813 (1966). A close reading of SDCL 35-6-30 reveals that it does not limit all cases to its own prescriptions. Neither does it expressly permit the sale of. low-point beer on Sundays. It merely prohibits the sale of such beer between certain hours. Chapter 35-6 contains no provision which denies a municipality the authority to regulate the sale of low-point beer. The ordinance enacted by respondent does no more than impose additional restrictions on the sale of low-point beer. This does not make the ordinance inconsistent with the statute since the two are not contradictory in the sense that they cannot coexist. Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 134 (1964). The ordinance and statute in the instant case would be inconsistent if the ordinance allowed the sale of low-point beer between the hours of 1:00 a. m. and 7:00 a. m. because the ordinance would allow that which the statute expressly forbids. As enacted, however, the ordinance is in complete harmony with the statute since it “does not provide for any standard different from that provided for in the state statute. It merely enlarges the time during which that standard shall be operative within the City’s limits.” City of Flat River v. Mackley, 212 S.W.2d 462, 467 (Mo.App.1948). A municipality may exercise its police power by regulating that which the state fails to regulate. Power v. Nordstrom, 150 Minn. 228, 184 N.W. 967 (1921). Since our legislature refrained from legislating as to the sale of low-point-beer on Sundays other than from the hours of 1:00 a. m. to 7:00 a. m., it is permissible for respondent to enact an ordinance with more restrictive provisions than those imposed by statute. “Had the legislature intended to prevent further local restrictive selling hours, less equivocal language would certainly have been employed.” Kelly v. City of Fort Collins, 163 Colo. 520, 524, 431 P.2d 785, 787 (1967); see also Gettman v. Board of County Com’rs of Morgan County, 122 Colo. 185, 221 P.2d 363 (1950).

Appellant speculates that if the ordinance is held valid in this case, respondent will have unchecked authority to proscribe the sale of low-point beer on any day of the week. Although room for abuse always exists when an entity possesses broad delegated powers, our system of government is structured so that such abuses can be exposed and restrained. Our decision in this case is limited to holding that respondent is authorized to prohibit the sale of low-point beer on Sundays pursuant to SDCL 9-29-7, that the ordinance enacted by respondent is not in conflict with state law, and that reasonable grounds exist for respondent to exercise its police power by regulating the sale of low-point beer on Sundays.

The judgment is affirmed.

DUNN and MORGAN, JJ., concur. WOLLMAN, C. J., and HENDERSON, J., dissent. DOBBERPUHL, Circuit Judge, sitting for FOSHEIM, J., disqualified.

Footnotes

1

.Counsel for the respective parties stipulated to the facts.

2

.SDCL 35-3-2.

3

.SDCL 35-3-7.

4

. To the same effect see Kelly v. City of Fort Collins, 163 Colo. 520, 431 P.2d 785 (1967); Gettman v. Board of County Com’rs of Morgan County, 122 Colo. 185, 221 P.2d 363 (1950); Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949); Leavenworth Club Owners Association v. Atchison, 208 Kan. 318, 492 P.2d 183 (1971); Nickols v. North Kansas City, 358 Mo. 402, 214 S.W.2d 710 (1948); City of Flat River v. Mackley, 212 S.W.2d 462 (Mo.App.1948).