The right to sell liquor by retail depends upon the law of the
state, which may affix conditions in granting the right, and one
who accepts a license under the state law, or a municipal ordinance
authorized thereby, is not deprived of his property or liberty
without due process of law, within the meaning of the federal
Constitution, by reason of conditions or prohibitions in the
ordinance as to the sale of liquor in places where women are
employed or permitted to enter.
The facts are stated in the opinion.
Page 192 U. S. 112
MR. JUSTICE McKENNA delivered the opinion of the Court.
This suit was brought by the plaintiff in error against the
defendants in error, who were officers of the City of Denver, to
restrain them from enforcing an ordinance of the city on the ground
that the ordinance was "contrary to the provision of the
Constitution of the State of Colorado and amendments thereto, and
contrary to the provisions of the Constitution of the United
States," and "contrary to the laws of the State of Colorado
guaranteeing civil rights to all persons, and contrary to other
statutes of the State of Colorado."
A preliminary injunction was allowed. It was made perpetual,
upon hearing, by decree of the court. The decree was reversed by
the supreme court of the state, and this writ of error was then
sued out.
Page 192 U. S. 113
Sections 745 and 746 of article 15 of the ordinance of Denver,
which are complained of and attacked, are as follows:
"SEC. 745. Each and every liquor saloon, dram shop, or tippling
house keeper . . . who shall have or keep, in connection with or as
part of such liquor saloon, dram shop, or tippling house, any wine
room or other place, either with or without door or doors, curtain
or curtains, or screen of any kind into which any female person
shall be permitted to enter from the outside, or from such liquor
saloon, dram shop, or tippling house and there be supplied with any
kind of liquor whatsoever shall, upon conviction, be fined as
hereinafter provided."
"SEC. 746. No person . . . having charge or control of any
liquor saloon or place where intoxicating or malt liquors are sold
or given away, or any place adjacent thereto or connected therewith
in any manner whatsoever, either by doors or otherwise, shall
suffer or permit any female person to be or remain in such liquor
saloon, dram shop, tippling house or other place where intoxicating
or malt liquors are sold or given away for the purpose of there
being supplied with any kind of liquor whatsoever. No person owning
or having charge or control of any liquor saloon, dram shop, or
tippling house shall employ or procure or cause to be employed or
procured any female person to wait or in any manner attend on any
person in any dram shop, tippling house, or liquor saloon or in any
place adjacent thereto or connected therewith where intoxicating or
malt liquors are sold or given away, nor shall any female person be
or remain in any dram shop, tippling house, liquor saloon, or place
adjacent thereto or connected therewith, and wait or attend on any
person, or solicit drinks in any such place."
The supreme court held that those sections did not violate the
Constitution of the state, and that they were authorized by the
statutes of the state, and sustained the validity of the ordinance
against the contention that it violated the Constitution of the
United States, on the ground that it was enacted
Page 192 U. S. 114
in the exercise of the police power of the state. Declaring the
laws of the state in regard to liquor selling, the court said:
"Under the license laws of this state, no one may engage in the
business of selling liquor without a license. He has no absolute
right to sell at all. It is only a privilege he gets when a license
is granted. The City of Denver, under its charter, has the
exclusive power to prohibit, restrain, tax, and regulate the sale
of intoxicating liquors. It may exercise that power to prohibit the
sale altogether, or, if it sees fit, it may regulate the sale and
impose such conditions as it deems necessary. Under these license
laws, one may not engage in the liquor traffic as of common right,
but may do so only upon compliance with prescribed regulations, and
if he applies for a license under which only he may lawfully sell,
he is held to take that license with whatever restrictions or
limitations are imposed by the authority which, and which only, can
give him the coveted privilege. One of the conditions which the
Charter of Denver requires to be inserted in every liquor license
is the one of which plaintiff complains."
This, the court decided, disposed of the complaint of plaintiff
in error. In other words, that the restrictions of the ordinance
were conditions of his license, and, by accepting the license, he
accepted the conditions, and no rights of his were infringed. "The
traffic in it (liquor) is unlawful without a license, and it may be
prohibited in Denver," was the unequivocal declaration of the
court.
What cause of action, then, has plaintiff in error? He is not a
female, nor delegated to champion any grievance females may have
under the ordinance, if they have any. The right to sell liquor by
retail to anybody depends upon the laws of the state, and they have
affixed to that right the condition expressed in the ordinance. But
even if plaintiff in error were not in such situation, he cannot
resist the ordinance. We said in
Crowley v. Christensen,
137 U. S. 86:
"The sale of such liquors in this way [by retail] has therefore
been at all times, by the courts of every state, considered
Page 192 U. S. 115
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."
Judgment affirmed.