I find myself in disagreement with the result reached by the majority. As I view the record and the contentions of counsel, the important question presented is not the constitutional question so elaborately treated in the majority opinion, but the question whether, as distinguished from the constitutional problem, the ordinance is unreasonable, oppressive, and discriminatory, a question touched upon but lightly by the majority and wholly ignored by the brief of defendants, although it was discussed at considerable length by both counsel upon the oral argument. Plaintiff definitely raised the question on pages 20 and 21 of her brief. In my opinion, if the question of reasonableness were considered and rightly decided, the constitutional question would never be reached. The question of reasonableness of an ordinance is treated differently from the question of constitutionality of a statute. The former bears on whether or not a local legislative body has reasonably exercised general powers delegated by statute or charter; the latter on whether a limitation in the constitution, the organic law of the land, has been contravened.
It is established law, since the case of Kruse v. Johnson [1898] 2 Q. B. 91, 99, that:
"* * * If, for instance, they [bylaws] were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' "
The general rule so formulated prevails throughout the United States and has been adopted by this court. State v. Houston,210 Minn. 379, 298 N.W. 358; Evison v. C. St. P. M. O. Ry. Co. 45 Minn. 370, 48 N.W. 6, 11 L.R.A. 434; Orr v. City of Rochester, 193 Minn. 371, 258 N.W. 569; Sverkerson v. City of Minneapolis, *Page 206 204 Minn. 388, 283 N.W. 555, 120 A.L.R. 944; Village of Golden Valley v. M. N. S. Ry. 170 Minn. 356, 212 N.W. 585.
In the Houston case the court said (210 Minn. 383,298 N.W. 360):
"* * * Where the power to legislate upon a given subject is granted, as it is here, and the mode of its exercise and the details of such legislation is not prescribed, an ordinance passed pursuant thereto must be a reasonable exercise of the power or it will be pronounced invalid."
In the Village of Golden Valley case the court said (170 Minn. 358, 212 N.W. 586):
"* * * It is the rule that an ordinance may be declared void when, from its inherent character or from competent proof, its operation is shown to be unreasonable, unless the contrary appears from the text thereof or is established by proper evidence."
In 37 Am. Jur., Municipal Corporations, § 157, the rule as to the requirement of reasonableness in ordinances is stated as follows:
"It is settled by the concurrence of almost innumerable authorities that a municipal ordinance is required not onlyto be constitutional, but to be reasonable as well, where it is enacted under general charter powers, general state statutes affecting municipalities, or other general or implied grant of power. The ordinance must, according to the explicit statement of many of the courts, attain reasonableness bybeing fair, general, and impartial in operation, not in conflict with common right, and not unduly oppressiveupon individuals. Even though the reasonableness of a statuteis not subject to question unless the organic law has beenviolated, the reasonableness of a municipal ordinance enactedunder general authority is subject to examination andattack, because where a municipal corporation has merely been granted a general power to enact ordinances of a regulatory nature in behalf of the general welfare, the power so granted is not coterminous, within the corporate limits,with the police power that rests in the hands of thelegislature of the state. An ordinance passed under such grant of power may be clearly unreasonable, or so arbitrary, oppressive, or partial, as to raise *Page 207 the presumption that the legislature never intended to confer the power to pass it, thus justifying a setting aside of the ordinance as a plain abuse of authority." (Italics supplied.)
Ordinances enacted under the general welfare clauses of city charters or those permitting regulation of the liquor traffic must bear some reasonable relation to the public health, safety, or morals or to the furtherance of such regulation. They must not be arbitrary or discriminatory. 30 Am. Jur., Intoxicating Liquors, § 38, notes 17 to 20, inclusive.
As said in 37 Am. Jur., Municipal Corporations, § 158:
"* * * It is common, however, for certain classes of citizens, those engaged in a particular business, to appeal to the Government — National, state, or municipal — to aid them by legislation against another class of citizens engaged in the same business, but in some other way. This class legislation, when indulged in, seldom benefits the general public, but nearly always aids a few for whose benefit it is enacted, not only at the expense of the few against whom it is ostensibly directed, but also at the expense and to the detriment of the many for whose benefit all legislation should be, in a republican form of government, framed and devised. This kind of legislation ordinarily receives no encouragement at the hands of the courts, and will be upheld only where it is strictly within the legitimate power of the municipal legislature. * * *
* * * * *
"A classification in a municipal ordinance must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the legislation, must be founded upon distinctions reasonable in principle and having just relation to the object sought to be accomplished, and must be based upon some substantial difference between the situation of such class or classes and other individuals or classes to which it does not apply."
Accordingly, the courts will review the question as to reasonableness of an ordinance, and if an ordinance passed under a general power is found unreasonable will declare it void as a matter of law *Page 208 (Evison v. C. St. P. M. O. Ry. Co. 45 Minn. 370, 48 N.W. 6,11 L.R.A. 434), for in every power given to a municipal corporation to pass ordinances there is an implied restriction that ordinances will be reasonable, consistent with the general law and policy of the state, uniform in their operation, and promotive, rather than destructive, of lawful businesses and occupations. 2 McQuillin, Municipal Corporations (Rev. 2 ed.) § 761.
There is no contention by the city that there is any constitutional or statutory provision that takes this case out of the general rule. I discover nothing in M. S. A. 340.11, subds. 4 and 10, cited by it on the oral argument, which specifically authorizes such an ordinance. The charter of defendant city (§ 127 B3) authorized the council to "license and regulate * * * all persons * * * dealing in or disposing of spirituous, vinous, malt or fermented liquors and all places in which the same are dealt in." This is a general clause, not a specific authorization of the ordinance under consideration.
In 2 McQuillin, Municipal Corporations (Rev. 2 ed.) § 762, the rule is stated:
"* * * So where the mode of the exercise of a power expressly granted is not prescribed, courts will assume to determine whether the provisions of the ordinance respecting the mode adopted are reasonable, for in no event will an arbitrary and unreasonable exercise of the power conferred be upheld by the judiciary."
Orr v. City of Rochester, 193 Minn. 371, 258 N.W. 569; Evison v. C. St. P. M. O. Ry. Co. 45 Minn. 370, 48 N.W. 6,11 L.R.A. 434. Measured by these standards, the part of the ordinance here under consideration falls outside the limits of reasonableness. We should take judicial notice of the transformation of the "on sale" liquor business which has occurred in the years since the repeal of the prohibition amendment. That change is so pronounced and of such common knowledge as to be the subject of judicial notice and to be obvious even to a total abstainer. What may have been justifiable 40 or 50 years ago under the conditions then existing may be wholly unreasonable now. City of Shreveport v. Shreveport Ry. Co. (5 Cir.) (1930) 38 F.2d 945, 69 A.L.R. 340; 37 Am. Jur., Municipal Corporation *Page 209 § 173, note 3. Most of the cases relied upon by the majority are 40 years old or more. Formerly, barrooms catered only to men. Women of good character did not patronize the open saloon. To do so would have besmirched their reputations. Now, in many cases, as shown by the evidence herein, women form a major part of the patronage of the barroom. Hotels and clubs have women's cocktail lounges. Women of good character not only patronize bars, but are employed as waitresses, hostesses, and bartenders. No one in this state has been heard to say that their employment in such establishments has been a hazard to public morals or health or to the regulation of the liquor business. The general impression and the testimony of the police is to the contrary. In the case at bar, the evidence is all one way, to the effect that barrooms are more orderly with women behind the bar, which is a high compliment to the men of St. Paul. The police and the proprietors agree as to that. Certainly, the presence of women behind the bar, as distinguished from those otherwise employed in the barroom, cannot be said to be a menace to public morals.
The promoters and supporters of the ordinance here under consideration admit with commendable candor that, while they do not like women behind the bar, they are interested chiefly in providing jobs for men. They announced that they anticipated a period when many men would be laid off in industry. They refused to say that women behind the bar are a menace to public welfare or morals. In my view, the ordinance unreasonably discriminates against women serving liquor from behind the bar in favor of men and of those women who are free to accept employment in any of the other capacities in which they are commonly employed in a barroom, including the mixing and serving of liquor. Certainly, women are as capable of mixing and serving drinks as men are. How they can be any more of a threat to morals when serving liquor from behind the bar than in front of it or elsewhere in the room is impossible to conceive. It is true that legislation does not need to cover a whole field, but if failing to do so results in unreasonable discrimination *Page 210 the theory of partial coverage should not be allowed to disguise discrimination, especially in the case of ordinances.
It is possible that an intelligent and efficient woman behind the bar may attract more patronage than a man, but that is legitimate, for a duly licensed and legally operated barroom is not an unlawful business. The proprietor is justified in seeking to attract business by legitimate means. True, a barroom is operated as a licensed privilege, but, the license being granted, the business becomes lawful. Most of the cases which discuss it as a mere privilege are those which have under consideration the issuance or cancellation of a license. There is no magic in applying the word "privilege" to it. To do so does not lift it beyond the pale of reasonable regulation or place it within the realm of arbitrary power; nor does doing so support an ordinance with a reasonable foundation for discrimination against women in favor of men.
I do not follow the reasoning of the cases cited by defendants. Three of them, including Goesaert v. Cleary (D.C.)74 F. Supp. 735, involve statutes, not ordinances, and the fourth has been overruled. In Michigan,5 the people amended the constitution in order to allow the legislature to establish a liquor control commission, which should have "complete control" of the liquor traffic in that state. The legislature did so and provided by statute that in certain cities no women except the wife or daughter of a male owner should be licensed as bartenders. Michigan has had a long legislative history, originating in pre-prohibition days, forbidding the employment of women as bartenders, at one time forbidding women from resorting to saloons for drinks. The Michigan court, conceding the discrimination against women, considered that the constitution and activating statutes indicated a purpose broad enough to allow the legislature to discriminate against them. It went further, and in seeking justification for the discrimination postulated that women would be less able than men to determine whether customers were minors or intoxicated to such an extent as to fall within the prohibition against *Page 211 sale of intoxicants to them. We have no such constitution or statute, and I do not think the postulated inability to discriminate is sound. Certainly, a woman's perceptions are as keen as a man's in this respect. The Michigan courts were discussing the validity of a statute under broad constitutional provisions relating to liquor traffic. Even on that question, the dissent of Judge Picard in Goesaert v. Cleary (D.C.)74 F. Supp. 735, a federal three-judge district court case, voices a very persuasive argument.
The California case (People v. Jemnez, 49 Cal.App. [2d] Supp. 739, 121 P. [2d] 543) is from an intermediate court, where there was under consideration an act of the legislature which forbade women to be employed in mixing alcoholic beverages "on the premises." The court held flatly that the legislative classification discriminating against all women on the premises in mixing drinks was reasonable. It said that the legislature may have concluded that it might be an unwholesome influence on the women so employed. There is, perhaps, more force to this argument than to any other, but it loses its force when applied merely to the dispensing of drinks from behind the bar, as distinguished from employment elsewhere in the barroom. In New Jersey (City of Hoboken v. Goodman, 68 N.J.L. 217,51 A. 1092), the court regarded women bartenders as more likely than men to induce vice and immorality. The evidence in the case at bar is wholly to the contrary. In Brown v. Foley, 158 Fla. 734, 29 So.2d 870, 871, the supreme court of Florida overruled Nelson v. State, 157 Fla. 412,26 So.2d 60, and said:
"In our opinion this ordinance is unreasonable as applied to this appellant. It recognizes that women may frequent bars and engage in every practice as men save and except that they shall not serve liquor by the drink over the bar notwithstanding they may mix and serve it otherwise."
The principal ground upon which the majority justify the discrimination against women as mixers of drinks behind the bar is that they do not consider them good "bouncers." They say they do not have the "physical strength or disposition" to keep order in the *Page 212 barroom. Even if this were true, a complete answer to that, if proprietors desire to have women bartenders and also to hire male bouncers, is that to prohibit such proprietors from so doing is an unjust discrimination against women. Women have always accomplished more by diplomacy than men by violence. Doubtless, women in the barroom, as the evidence here indicates, would minimize breaches of the peace. After all, St. Paul has a police force famous for its efficiency. The employment of women behind the bar has gone on in St. Paul for many years, as witness the employment of plaintiff for six years in that capacity after she had had four years of service in the barroom. There is no contention that public health or morals or the regulation of the traffic has suffered therefrom, and certainly no emergency has arisen to call for action by the city council. The evidence is all to the contrary. If physical and mental capacity is to be the basis for classification of those eligible to tend bar, some other distinction than that of sex will have to be found. Under the ordinance, Mr. Milquetoast and Mr. Wimple, but not Tugboat Annie nor Mrs. Wimple nor Emma Maddon,6 could qualify to assume the heavy responsibilities incident to mixing drinks behind the bar. I fear that this case will be regarded as an invitation to pressure groups to seek to bar women from jobs which they desire to preserve for men and that it will result in unjust discrimination in other vocations.
I am of the opinion that the part of the ordinance under consideration is unreasonable and void because it serves no purpose in protecting public health, morals, or safety or in the reasonable furtherance of the regulation of the liquor business. It is not based on any reasonable classification in its discrimination against women bartenders.
5 See, Fitzpatrick v. Liquor Control Comm. 316 Mich. 83,25 N.W.2d 118, 172 A.L.R. 608.
6 Emma Maddon was a streetcar conductor in New York City who, according to recent news dispatches, ejected from her car, singlehanded, a belligerent passenger who refused to pay his fare.