Whitney v. Township Board

Campbell, J.,

(dissenting). I do not think this case presents any question of the invasion of property rights in the true sense of the term. If relators had invested money in property which was useful for some one purpose and for no other, or where use for any other purpose would directly diminish its value, I am not prepared to say they would not be legally injured by a'forced suspension or destruction of that use.

But here they show that they bought and improved certain real estate for the purpose of a way-side inn and house ■of entertainment generally, furnishing meals and other refreshments. In such a business the furnishing of any particular kind of refreshments is merely incidental to the rest, and not essential. It would be a very violent inference to assume that any of relators’ fixed property had been destroyed, or could be destroyed, by interfering with liquor retailing in their tavern, when, presumptively, many guests would not touch it.

But the business of retailing liquor as a part of their ■other business being lawful under the statutory conditions for all persons who choose to engage in it through the ■State generally, these parties have the right, as citizens, to be protected in it on complying with those conditions, unless it is lawful to put them on an exceptional footing. The right of carrying on any lawful business is a valuable ■one, and courts are bound to protect it.

*246It would hardly be claimed, as it certainly would not be sound doctrine, that the Legislature can arbitrarily except some single precinct, large or small, from the operation of the general laws of the State. Equality before the law is one of the fundamental principles of representative government. Our Constitution, in recognizing counties and townships and other districts, with their inhabitants, cannot contemplate the right anywhere to classify them, or to place them singly under different conditions.. Every foot of land in the State must be under the municipal rule of some legal municipality, and subject to the-same general laws, and its inhabitants cannot be separately dealt with. Under the Constitution of the United States,, there are various government reserves placed under the exclusive control of Congress, and removed from all other control. But the Constitution of Michigan has not placed, or authorized to be placed, any territory under the exclusive control of the Legislature for one purpose or for general purposes; and, in my judgment, nothing but an express grant of power could put it there.

If the power exist in the Legislature to restrict the conduct of one kind of business in a particular place, no-court can distinguish one business from another in the-exercise of that restriction. It is entirely fallacious to say that the particular business in question here is a dangerous one, and very generally regulated. That is undoubtedly true as a matter of fact, but it is not true as a. source of authority. Legislation has frequently existed for encouraging and for restricting many kinds of business; and, where the power exists, the determination of the policy is a matter of legislative discretion. We have had tariffs which on some articles were prohibitory, and were meant to be so. There has been legislation regulating or checking the cultivation of plants of various sorts, the exportation of domestic raw materal, or the importa*247tion of manufactured articles. We have on our own statute-books legislation imposing onerous conditions on several kinds of business, including banking, auctions, insurance, fishing, and some kinds of manufacturing, and we have inspection laws applicable to various commodities. All of these laws, so far as they are lawfully enacted, derive their authority from the opinion of the Legislature that public policy makes that regulation desirable for the public welfare; and liquor laws stand on precisely the same foundation, and no other.

The law under which respondents justify their refusal to accept the liquor tax and approve the bond of relators is somewhat peculiar in more than one aspect. It purports in the title to prohibit either the keeping of saloons, or the sale or giving of intoxicating liquor, within one mile of the Soldiers' Home. But in the body of the act, while it forbids the maintenance of saloons within one mile of the Home, yet it only punishes the sale or gift within that distance to inmates of the Home. This law took effect May 1, 1887. Laws of 1887, p. 30. A subsequent law, taking effect 90 days after the close of the session, forbids the sale or furnishing of liquors to such inmates except when on furlough, and away from the city of Grand Rapids. Page 204. Taking these two laws together, they indicate that the individual soldier on furlough may buy or receive intoxicating liquor anywhere except in Grand Rapids or the mile limit; that in any part of Grand Rapids the trade shall be open except as to sol.diers; and that immediately over the line of the city, when the mile circle is reached, there can be no places of sale for anybody.

This mile circle, which is not a legal territorial' subdivision, is therefore put on a different footing from any other parcel of the State. It cannot rest on the offensive theory that disabled soldiers are not entitled to sui juris, *248because they are not individually protected anywhere else except in Grand Eapids. There is nothing to prevent a belt of saloons coming up to the mile line; and, on the other hand, if the radius had been made a few rods longer, a part of the citizens of Grand Eapids would have been cut off from the business privileges of the rest,' — ■ just as relators are cut off from equality with other people of the township who may be practically as accessible from the Home as relators; for, in any region where there are roads' and streams, proximity is not really measured by a radius of distance, but by facilities of travel. And, as it was and is entirely practicable to place a State institution within a city, any principle that will uphold this legislation will enable the people of that city to be put under peculiar and separate conditions from other municipalities.

The apparently benevolent purpose of this statute cannot take away the odious and disagreeable principle which underlies it. It means neither more nor less than that the Legislature may at will put any place or any person or thing under exceptional conditions under the law, from such imagined reasons of policy as seem plausible. If such a power exists, courts cannot review the legislative opinion of policy or the legislative finding of necessity. It is no answer to say that abuses are not probable. All constitutional rules are adopted to prevent possible abuses, and yet there is always a presumption that they will not be allowed. The experience of all time has shown that no one can anticipate the excesses of unlimited power. Most evasions of the Constitution are sought to be excused by good intentions; and every such evasion sooner or later leads to palpable mischief. When the door is opened, it cannot be effectually closed.

Furthermore, the State owes the same duties to all of its citizens. Except for their honorable antecedents, which have no bearing on their helplessness, the temptations ana *249risks incident to. these inmates apply in precisely the same way to every public and private refuge in the State for the reception of indigent persons. All of these which are either public or corporate are created or maintained under State laws. The inmates of all public asylums are entitled to the same safeguards of law. But the business and convenience of persons outside cannot be subordinated to them. The burdens and rights of the people at large must be dependent on equality. If some city or county asylum had been singled out for protection from any particular kind of risk or annoyance within a given distance, the inequality would be obvious. But it can make no difference in the principle what public agency has charge.

I think the relators should have their remedy.