The sale of spirituous and intoxicating liquors by retail and in
small quantities may be regulated, or may be absolutely prohibited,
by state legislation without violating the Constitution or laws of
the United States.
The ordinances of the City and County of San Francisco, under
which a license to the defendant in error to sell intoxicating
liquors by retail and in small quantities was refused, having been
held by the Supreme Court of California not to be repugnant to the
constitution of that state, that decision is binding upon this
Court.
Yick Wo v. Hopkins, 118 U. S. 356,
distinguished from this case.
In the courts of the United States, the return to a writ of
habeas corpus is deemed to import verity until impeached.
This was an appeal from an order of the Circuit Court of the
United States for the Northern District of California discharging,
on habeas corpus, the petitioner for the writ, the appellee here,
from the custody of the Chief of Police of the City and County of
San Francisco, by whom he was held under a warrant of arrest issued
by the police court of that municipality upon a charge of having
engaged in and carried on in that city the business of selling
spirituous, malt, and fermented liquors and wines in less
quantities than one quart without the license required by the
ordinance of the city and county. The ordinance referred to
provided that every person who sold such liquors or wines in
quantities less than one quart should be designated as "a retail
liquor dealer" and as "a grocer and retail liquor dealer," and that
no license as such liquor dealer, after January 1, 1886,
"shall be issued by the collector of licenses unless the person
desiring the same shall have obtained the written consent of a
majority of the board of police commissioners of the City and
County of San Francisco to carry on or conduct said business; but,
in case of refusal of such consent, upon application, said board of
police commissioners
Page 137 U. S. 87
shall grant the same upon the written recommendation of not less
than twelve citizens of San Francisco owning real estate in the
block or square in which said business of retail liquor dealer or
grocery and retail liquor dealer is to be carried on,"
and that such license should be issued for a period of only
three months. The ordinance further declared that any person
violating this provision should be deemed guilty of a
misdemeanor.
The Constitution of California provides, in the eleventh section
of Article 11, that
"Any county, city, town or township may make and enforce within
its limits all such local, police, sanitary and other regulations
as are not in conflict with general laws."
The petitioner had, previously to June 10, 1889, carried on the
business of retail liquor dealer in San Francisco for some years
under licenses from the board of police commissioners, but his last
license was to expire on the 17th of that month. Previously to its
expiration, he was informed by the police commissioners that they
had withdrawn their consent to the further issue of a license to
him. He afterwards tendered to the collector of license fees,
through which officer it was the practice of the board to issue the
licenses, the sum required for a new license, but the tender was
not accepted, and his application for a new license was refused. He
then applied to the police commissioners for a hearing before them
on the question of revoking their consent to the issue of a further
license to him. Such hearing was accorded to him, and the time
fixed for it was the 24th of June. But before any hearing was had,
he was arrested upon a warrant of the police court upon the charge
of carrying on the business of a retail liquor dealer without a
license. He then obtained from the supreme court of the state a
writ of habeas corpus to be discharged from the arrest, but that
court, on the second of August, 1890, held the ordinance valid and
remanded him to the custody of the chief of police. He then applied
for the allowance of an appeal from this order to the Supreme Court
of the United States, but it was refused by the chief justice of
the state court, and the Associate Justice of the Supreme Court of
the United
Page 137 U. S. 88
States assigned to the circuit, who could have allowed the
appeal, was absent from the state. On the 7th of August following,
a new complaint was made against the petitioner charging him with
unlawfully engaging in and carrying on in San Francisco the
business of a retail liquor dealer without a license under the
ordinance of the city and county. Upon this complaint a warrant was
issued under which he was arrested. He thereupon applied to the
Circuit Court of the United States for a writ of habeas corpus,
which was issued.
In return to the writ, the chief of police, the appellant here,
stated that he held the petitioner under the warrant mentioned by
the petitioner and several other warrants issued by the police
court of the city and county, upon different charges, made at
different times, of his conducting and carrying on the business of
a retail liquor dealer in San Francisco without a license, as
required by the ordinance of the city and county. He also stated,
among other things, that a further license to the petitioner was
refused by the police commissioners because they had reason to
believe that the business was carried on by him under his existing
license in such a manner as to be offensive, and violative of the
criminal laws of the state and of the rights of others. In support
of this charge it was averred that in that business the petitioner
was assisted by one whom he represented and claimed to be his wife,
and that she had on one occasion stolen one hundred and sixty
dollars from a person who visited his saloon, and been convicted of
the offense in the superior court of the city and county, and
sentenced to be imprisoned for one year, and on another occasion
had stolen a watch and a scarf pin from a person at the saloon, and
was held to answer for the charge. It was also averred that there
were more than sixteen citizens of San Francisco owning real estate
in the block on which the petitioner carried on his business. It
did not appear that on the hearing of the application any proof was
offered of the facts alleged either in the petition or in the
return. The case was heard upon exceptions or demurrer to the
return. To that part respecting the alleged larceny by the wife and
her conviction the demurrer was on the ground that the return also
showed that an
Page 137 U. S. 89
appeal had been taken from the conviction, which was then
pending, and that she might be acquitted of the offense
charged.
Several objections were urged by the petitioner to the
ordinance. Some of them were of a technical character, and could
not be considered. Of the others only one was noticed, which was
that by it,
"the State of California, by its officers, denies to him the
equal protection of the laws, and makes and enforces against him a
law which abridges his privileges and immunities as a citizen of
the United States,"
contrary to the Fourteenth Amendment to the Constitution of the
United States.
The court held that the ordinance made the business of the
petitioner depend upon the arbitrary will of others, and in that
respect denied to him the equal protection of the laws, and
accordingly ordered his discharge. 43 F. 243. From that order the
case was brought to this Court by appeal under §§ 763 and 764 of
the Revised Statutes, this latter section as amended by the Act of
March 3, 1885, c. 353, 23 Stat. 437.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
It is undoubtedly true that it is the right of every citizen of
the United States to pursue any lawful trade or business, under
such restrictions as are imposed upon all persons of the same age,
sex, and condition. But the possession and enjoyment of all rights
are subject to such reasonable conditions as may be deemed by the
governing authority of the country essential to the safety, health,
peace, good order, and morals of the community. Even liberty
itself, the greatest of all rights, is not unrestricted license to
act according to one's own will. It is only freedom from restraint
under conditions essential to be
Page 137 U. S. 90
equal enjoyment of the same right by others. It is then liberty
regulated by law. The right to acquire, enjoy, and dispose of
property is declared in the constitutions of several states to be
one of the inalienable rights of man, but this declaration is not
held to preclude the legislature of any state from passing laws
respecting the acquisition, enjoyment, and disposition of property.
What contracts respecting its acquisition and disposition shall be
valid, and what void and voidable, when they shall be in writing,
and when they may be made orally, and by what instruments it may be
conveyed or mortgaged, are subjects of constant legislation. And as
to the enjoyment of property, the rule is general that it must be
accompanied with such limitations as will not impair the equal
enjoyment by others of their property.
Sic utere tuo ut alienum
non laedas is a maxim of universal application.
For the pursuit of any lawful trade or business the law imposes
similar conditions. Regulations respecting them are almost
infinite, varying with the nature of the business. Some occupations
by the noise made in their pursuit, some by the odors they
engender, and some by the dangers accompanying them, require
regulations as to the locality in which they shall be conducted.
Some by the dangerous character of the articles used, manufactured,
or sold, require also special qualifications in the parties
permitted to use, manufacture, or sell them. All this is but common
knowledge, and would hardly be mentioned were it not for the
position often taken and vehemently pressed that there is something
wrong in principle and objectionable in similar restrictions when
applied to the business of selling by retail, in small quantities,
spirituous and intoxicating liquors. It is urged that as the
liquors are used as a beverage, and the injury following them, if
taken in excess, is voluntarily inflicted, and is confined to the
party offending, their sale should be without restrictions, the
contention being that what a man shall drink, equally with what he
shall eat, is not properly matter for legislation.
There is in this position an assumption of a fact which does not
exist -- that when the liquors are taken in excess, the injuries
are confined to the party offending. The injury, it is true,
Page 137 U. S. 91
first falls upon him in his health, which the habit undermines,
in his morals, which it weakens, and in the self-abasement which it
creates. But as it leads to neglect of business and waste of
property and general demoralization, it affects those who are
immediately connected with and dependent upon him. By the general
concurrence of opinion of every civilized and Christian community,
these are few sources of crime and misery to society equal to the
dram shop, where intoxicating liquors, in small quantities, to be
drunk at the time, are sold indiscriminately to all parties
applying. The statistics of every state show a greater amount of
crime and misery attributable to the use of ardent spirits obtained
at these retail liquor saloons than to any other source. The sale
of such liquors in this way has therefore been at all times by the
courts of every state considered as the proper subject of
legislative regulation: not only may a license be exacted from the
keeper of the saloon before a glass of his liquors can be thus
disposed of, but restrictions may be imposed as to the class of
persons to whom they may be sold, and the hours of the day and the
days of the week on which the saloons may be opened. Their sale in
that form may be absolutely prohibited. It is a question of public
expediency and public morality, and not of federal law. The police
power of the state is fully competent to regulate the business, to
mitigate its evils, or to suppress it entirely. 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. That authority may vest
in such officers as it may deem proper the power of passing upon
applications for permission to carry it on, and to issue licenses
for that purpose. It is a matter of legislative will only. As in
many other cases, the officers may not always exercise the power
conferred upon them with wisdom or justice to the parties affected.
But that is a matter which does not affect the authority of the
state,
Page 137 U. S. 92
or one which can be brought under the cognizance of the courts
of the United States.
The Constitution of California vests in the municipality of the
City and County of San Francisco the right to make "all such local,
police, sanitary, and other regulations as are not in conflict with
general laws." The supreme court of the state has decided that the
ordinance in question, under which the petitioner was arrested and
is held in custody, was thus authorized, and is valid. That
decision is binding upon us unless some inhibition of the
Constitution or of a law of the United States is violated by it. We
do not perceive that there is any such violation. The learned
circuit judge saw in the provisions of the ordinance empowering the
police commissioners to grant or refuse their assent to the
application of the petitioner for a license, or, failing to obtain
their assent upon application, requiring it to be given upon the
recommendation of twelve citizens owning real estate in the block
or square in which his business as a retail dealer in liquors was
to be carried on, the delegation of arbitrary discretion to the
police commissioners, and to real estate owners of the block, which
might be and was exercised to deprive the petitioner of the equal
protection of the laws. And he considers that his view in this
respect is supported by the decision in
Yick Wo v.
Hopkins, 118 U. S. 356.
In that case, it appeared that an ordinance of the City and
County of San Francisco passed in July, 1880, declared that it
should be unlawful after its passage
"for any person or persons to establish, maintain, or carry on a
laundry within the corporate limits of the City and County of San
Francisco without having first obtained the consent of the board of
supervisors, except the same be located in a building constructed
either of brick or stone."
The ordinance did not limit the power of the supervisors to
grant such consent where the business was carried on in wooden
buildings. It left that matter to the arbitrary discretion of the
board. Under the ordinance, the consent of the supervisors was
refused to the petitioner to carry on the laundry business in
wooden buildings, where it had been conducted by him for over
twenty
Page 137 U. S. 93
years. He had at the time a certificate from the board of fire
wardens that his premises had been inspected by them, and upon such
inspection they had found all proper arrangements for carrying on
the business, and that all proper precautions had been taken to
comply with the provisions of the ordinance defining the fire
limits of the city and county, and also a certificate from the
health officer that the premises had been inspected by him, and
were properly and sufficiently drained, and that all proper
arrangements for carrying on the business of a laundry without
injury to the sanitary conditions of the neighborhood had been
complied with. The limits of the city and county embraced a
territory some ten miles wide, by fifteen or more in length, much
of it being occupied at the time, as stated by the circuit judge,
as farming and pasture lands, and much of it being unoccupied sand
banks, in many places without buildings within a quarter or half a
mile of each other. It appeared also that, in the practical
administration of the ordinance, consent was given by the board of
supervisors to some parties to carry on the laundry business in
buildings other than those of brick or stone, but that all
applications coming from the Chinese, of whom the petitioner was
one, to carry on the business in such buildings were refused. This
Court said of the ordinance:
"It allows without restriction the use for such purposes of
buildings of brick or stone, but as to wooden buildings,
constituting nearly all those in previous use, it divides the
owners or occupants into two classes, not having respect to their
personal character and qualifications for the business, nor the
situation and nature and adaptation of the buildings themselves,
but merely by an arbitrary line, on one side of which are those who
are permitted to pursue their industry by the mere will and consent
of the supervisors, and on the other those from whom that consent
is withheld at their mere will and pleasure. And both classes are
alike only in this, that they are tenants at will, under the
supervisors, of their means of living. The ordinance therefore also
differs from the not unusual case where discretion is lodged by law
in public officers or bodies to grant or withhold licenses to keep
taverns or places for the sale of
Page 137 U. S. 94
spirituous liquors and the like when one of the conditions is
that the applicant shall be a fit person for the exercise of the
privilege, because in such cases the fact of fitness is submitted
to the judgment of the officer, and calls for the exercise of a
discretion of a judicial nature."
It will thus be seen that that case was essentially different
from the one now under consideration, the ordinance there held
invalid vesting uncontrolled discretion in the board of supervisors
with reference to a business harmless in itself and useful to the
community, and the discretion appearing to have been exercised for
the express purpose of depriving the petitioner of a privilege that
was extended to others. In the present cause, the business is not
one that any person is permitted to carry on without a license, but
one that may be entirely prohibited or subjected to such
restrictions as the governing authority of the city may
prescribe.
It would seem that some stress is placed upon the allegation of
the petitioner that there were not twelve persons owners of real
property in the block where the business was to be carried on. This
allegation is denied in the return, which alleges that there were
more than sixteen such property holders. As the case was heard upon
exceptions or demurrer to the return, its averments must be taken
as true. At common law, no evidence was necessary to support the
return. It was deemed to import verity until impeached. Hurd on
Habeas Corpus, book 2, c. 3, §§ 8-10; Church on Habeas Corpus, §
122. And this rule is not changed by any statute of the United
States. It must therefore be considered as a fact in the case that
there were more than sixteen owners of real estate in the block.
But if the fact were otherwise, and there was not the number stated
in the petition, the result would not be affected. If there were no
property holders in the block, the discretionary authority would be
exercised finally by the police commissioners, and their refusal to
grant the license is not a matter for review by this Court, as it
violates no principle of federal law. We, however, find in the
return a statement which would fully justify the action of the
commissioners. It is averred that, in the conduct of the liquor
Page 137 U. S. 95
business, the petitioner was assisted by his wife, and that she
was twice arrested for larcenies committed from persons visiting
his saloon, and in one case convicted of the offense and sentenced
to be imprisoned, and in the other held to answer. These larcenies
alone were a sufficient indication of the character of the place in
which the business was conducted for the exercise of the discretion
of the police commissioners in refusing a further license to the
petitioner. The order discharging the petitioner must be
Reversed, and the cause remanded with directions to take
further proceedings in conformity with this opinion, and it is so
ordered.