Kent Club v. Toronto

CROCKETT, Justice.

Original proceeding brought to test the validity of Chapter 25, S.L.U.1955,1 which provides for the chartering of social and recreational- clubs and kindred associations. The act sets up certain regulations for the storage and use of liquor on their premises.

The plaintiff clubs received charters as nonprofit corporations. Their stated purpose is that of furnishing entertainment and recreation, including the serving of refreshments to their members. They have operated -under the so-called “locker system” in which individuals keep their own liquor in their individual lockers at the club, and use it as they desire, usually purchasing the mixers from the club.2

Aware of the dangers of abuses and undesirable practices' in connection with the consumption of liquor in such clubs, the 1955 Legislature enacted Chapter 25 above referred to amending pre-existing laws for the regulation and control of these clubs. In addition to providing for the issuance of charters, it requires that they contain certain provisions and permits the storage and use of liquor under the “locker system” only when the club is operated in conformity with the provisions of the act. Penalties are prescribed for violations, including the forfeiture of a $5,000 bond and the corporate charter.

The plaintiff clubs brought this proceeding to enjoin the Secretary of State from requiring them to comply with the requirements of said Chapter 25 and proceeding thereunder, claiming the act is unconstitutional on these grounds :

A. That the bill creating the act contained two unrelated subj ects.

B. That it is uncertain and ambiguous.

C. That it involves a delegation of judicial power.

*71D. That it is discriminatory.

E. That it impairs rights of contract.

A'. That the bill contained two subjects :

Article VI, Sec. 23, Constitution of Utah provides: “Except general appropriations bills and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.”

The basis of plaintiff’s contention that House Bill 16, which enacted the present measure into law, violates the above constitutional provision is that it provides for the amendment of Sec. 16-6-13, and the addition of three subsections thereto, Sections 16-6-13.1, 16-6-13.2, and 16-6-13.3, dealing with the regulation, control and revocation of charters of nonprofit social clubs, but that the other phase of the act, “providing that the locker system for the storage and serving of liquor shall be legal only when operated by a nonprofit organization” is an amendment of various provisions of Title 32, the Liquor Control Act, and thus not germane to the first subject matter mentioned concerning social clubs.

Under the above constitutional provision it is indeed necessary that both the title and the bill be confined to one subject, and that the title contain a clear and adequate description of its contents. This court has heretofore had occasion to amplify such requirement.3 It appears that the following general principles should be considered in analyzing such a problem:

(1) The title and the act should be surveyed in the light of the purpose of the above quoted section of the Constitution which is to guard against the surreptitious or inadvertent inclusion of subjects in legislation without legislators and the public being aware of its contents;

(2) Due consideration should be given to the fact that legislation is often necessarily comprehensive in covering a whole subject and that it is not invalid simply because certain portions, if considered in isolation, would seem unrelated, but is proper so long as all of the provisions have a direct relationship to the subject legislated upon;

(3) A liberal view should be taken of both the act and the constitutional provisions so as not to hamper the law making power, but to permit the adoption of comprehensive measures covering a whole subject;

(4) That each act must be viewed in its entirety and upon the basis of the circumstances and conditions peculiar to it, and must be regarded as constitutional un*72less it plainly appears that the basic purpose of the constitutional provision is violated.4

Without burdening this opinion with the details of the provisions referred to, it is our opinion that if surveyed in the light of the above principles, it will he found that the provisions of the Liquor Control Act, Title 32, which are amended,5 are each directly related to the conduct and regulation of the social clubs, the general subject of the act in question.

B. That the act is uncertain and ambiguous:

The plaintiffs argue that the following italicized terms render the act so vague and uncertain that it is invalid. Such terms are found in the following subdivisions of Section 16-6-13.1: (3) Specifying that the club charter shall contain limitations on “number of members consistent with the nature and purposes of the club; (4) Providing for "reasonable initiation fees and dues” ; (6) Requiring “reasonable regulations for the dropping of members for the nonpayment of dues or for other causes” ; (7) Requiring “strict regulations” for the government of the club rooms or quarters generally consistent with the nature and purpose of the club. The emphasized terms above recited are admittedly somewhat nebulous. Yet it must be appreciated that in the drafting of a statute of this nature, which must have uniform application to all social clubs of the class it is purposed to regulate, there must be some leeway for adaptation to the various individual organizations. While the specific terms complained of leave much to be desired as to definiteness, they were apparently designed to provide such leeway and meanwhile to prescribe a general pattern reasonably calculated to fulfill the purposes of the law.

Legislation should not be judicially declared invalid on the ground that it is unintelligible or uncertain unless it is so imperfect and deficient as to render it susceptible of no reasonable construction that will give it effect, or the court finds itself unable to divine the purpose and intent of the Legislature.6 If the statute is so designed that persons of ordinary intelligence, who would be law abiding, can tell what their conduct must be to conform to its requirements, and it is susceptible of uniform interpretation and application by those charged with the responsibility of enforcing it, it is invulnerable to an attack for vagueness.7 The act under considera*73tion is operable under that test. It is important to keep in mind that it pertains to-the issuance and regulation of such charters and is not a criminal statute involving the sanctions of punishment for crime for failure to comply with its provisions.

C. That it delegates a judicial function to the Secretary of State:

It has heretofore been adjudicated py this court in Citizens Club v. Welling,8 and recently reaffirmed in Entre Nous Club v. Toronto,9 that empowering the Secretary of State to revoke charters of social clubs for violation of conditions prescribed by statute does not involve such a delegation of judicial function that the act is invalid. In the nature of things, administrative officers cannot perform their duties without exercising some discretion in connection with their official acts. The Legislature has chosen to repose certain duties in the Secretary of State, both in issuing charters to corporations when the requirements of law are met, and in forfeiting them when there is a failure to comply therewith.

The forfeiture of one of these charters does not involve the same basic principles as the taking of property in the ordinary sense. These clubs have voluntarily elected to apply for and to receive privileges from the State. Such privileges are extended upon the condition that the clubs are willing to comply with the requirements of the law originally, and to continue to abide by them during the lives of their charters. If the requirements are not met, no charter is issued; if violations of the requirements occur, the charters are subject to forfeiture and the privilege withdrawn.

A case which is somewhat analogous dealing with this subject is that of A. R. Young Construction Co. v. Dunne,10 wherein the plaintiff corporation had failed to comply with the statutes in paying fees ■and filing statements listing its officers and reflecting various facts pertaining to its corporate status. Pursuant to statute the State Charter Board declared its charter forfeit. As against the same contention here made, the Kansas court stated:

“The corporation owed its existence to the state. The powers and privileges of the corporation were conferred upon conditions imposed by the Legislature * * * when the corporation accepted the charter, it consented to * * * the conditions * * * and the statute itself became a part of the corporate contract. It *74is competent for the Legislature to provide that a corporation shall lose its existence by acts or omissions, the forfeiture to be declared by administrative officers without the intervention of the courts. If the corporation violates * * * by acts or omissions which the Legislature has in plain terms declared shall operate as a forfeiture upon a declaration of a board or of ministerial officers, the forfeiture is complete when the declaration is made * * * the forfeiture must be regarded as legislative and administrative rather than judicial.”

Should the Secretary of State act in a capricious or arbitrary manner, anyone aggrieved thereby would not be entirely subject to his whim or caprice, but recourse could be had to the courts through the use of an extraordinary writ. It may well be that it would have been better for the Legislature to spell out a procedure for the inquiry and the forfeiting and charters where the requirements of the act are not complied with, but it did not see fit to do so. In view of the fact that this court is committed to the proposition decided in Citizens Club v. Welling and Entre Nous Club v. Toronto, both supra, we are not now disposed to reconsider such rulings.

D. That the act is discriminatory:

The first argument made is that there is an arbitrary bestowal upon these clubs of special privileges with respect to the storage and consumption of liquor, which is denied the rest of the public, and that it offends against the constitutional prohibition concerning the enactment of special laws granting privileges or immunities.11 Even if that were so, the plaintiffs would be in no position to complain of special privileges accorded them.12 Respecting the duties and responsibilities about which plaintiffs complain, it should be remembered that the keeping of liquor and permitting its use is of such a nature that it is directly related to the public morals and welfare so that the “regulation of the manufacture, transportation, sale, and use of alcohol and other intoxicating liquors is an exercise of the police power of the state.” 13

Particular emphasis in the argument concerning discrimination is placed on the requirement of a bond of $5,000. It is plaintiffs’ position that this is so high that it allows only financially affluent clubs to enjoy the privileges granted, thus discriminating against others. And further, that in permitting the Secretary of State to forfeit such bond, it not only clothes him with *75judicial power but allows him to impose an excessive fine14 for violation of the statute, which would constitute only a misdemeanor, the maximum penalty for which would otherwise be a fine of $300. This latter argument ignores two factors: One is that for a misdemeanor there may be both a fine and jail sentence imposed. Second, the bond is voluntarily furnished by the plaintiffs as a condition to receiving the privileges afforded under the statute, and that the plaintiffs need not subject themselves to such penalty unless they so desire.

The purpose of the bond is to assure operation in accordance with law. If the officers of the club are in good faith intending to comply with the law, there is no reason to apprehend they should have any serious difficulty in obtaining a bond of $5,000, since there will be no forfeiture unless violations occur. There is nothing to suggest that it was fixed at an exorbitant amount for the purpose of including the rich and excluding the poor, or for any other purpose than that of assuring compliance with the law. In the absence of any ulterior motive it is the prerogative of the Legislature to fix the bond, and there is no basis upon which we could say that the provision with respect to the bond is an unjust discrimination against plaintiffs.15

Directing attention to the contention that the various duties imposed upon; the plaintiffs by the statute amounts to unjust discrimination against such clubs, it is further to be observed that an act is not unconstitutional because it applies only to' a certain limited group or class if there is some reasonable basis for the classification which is related to the purposes of the statute and if all within the same class are treated uniformly.16 This subject was effectively covered by Mr. Justice Wolfe in the case of State v. Mason, 94 Utah 501, 78 P.2d 920, 923, 117 A.L.R. 330, where he said:

“Of course every legislative act is in one sense discriminatory. The Legislature cannot legislate as to all persons or all subject matters. It is inclusive as to some class or group * * * and exclusive as to the remainder. For that reason, to be unconstitutional the discrimination must be unreasonable or arbitrary. A classification is never unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between classes or subject matters included as compared to those excluded * * *, provided the differentiation bears a rea*76sonable relation to the purposes to be accomplished by the act.” 17

This act is uniform in its application to those who come within its province, treating them all alike and granting to them privileges and imposing duties appropriate to the nature of the function they perform and for the purpose of safeguarding the public morals and welfare.

E. That it impairs contract rights:

This contention has three facets, (1) that the plaintiffs’ charters, issued prior to the present law, amounted to contracts with the State, giving them certain rights which are abrogated or curtailed by imposing onerous conditions as a prerequisite to the enjoyment of such rights; (2) that plaintiffs have subsisting contracts letting to third persons the concessions for serving food and beverages in their clubs, which are now prohibited; (3) that it wrongfully deprives them of their rights to enter into similar contracts in the future.

The general principle that no law shall be passed which impairs the obligations of contract is not to be disputed.18 It is likewise true that ordinarily exclusive privileges granted by the State may not arbitrarily be recalled.19 However, privileges granted cannot bind to preclude the proper use of the police power since the Legislature may not by contract limit the exercise of the police power to the prejudice of the general welfare.20 The plaintiffs must be deemed to have known this and to. have-accepted their charters knowing that they would be bound by such reasonable regulations as the Legislature deemed appropriate to enact.21 This matter was dealt with in the case of Riggins v. District Court.22 Thus the issuance of the corporate charters did not create any inviolable rights in the plaintiffs. They indeed have the same constitutional rights of property and contract as all other citizens, but they have no constitutional right to store and serve liquor on their premises. If they desire to continue to enjoy this privilege, they must so conduct their affairs as to comply with the legal regulations pertaining thereto.

The requirement that the clubs must themselves handle the serving of food and beverages appears to have been designed for the effective enforcement of the regulations. If that part of the business could *77be sublet to third persons, who had not furnished bond or otherwise complied with the requirements of the statutes, and for whose conduct the club would not necessarily be responsible, a way would be open to circumvent the purposes of the act. It was undoubtedly for this reason that the clubs are required to operate the concessions themselves and that subletting is prohibited.

The writ is recalled.

McDonough, c. j., and wade, j., •concur.

. Secs. 16-6-13.1 et seq., U.C.A.1953.

. See State v. Alta Club, 120 Utah 121, 232 P.2d 759.

. Edler v. Edwards, 34 Utah 13, 95 P. 367.

. Kimball v. City of Grantsville City, 19 Utah 369, 57 P. 1, 45 L.R.A. 628; Hansen v. Public Employees Retirement Ass’n, Utah, 246 P.2d 591; Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400, 403.

. Section 32-1-8 and 32-7-3, U.C.A.1953.

. See Peterson v. Sundt, 67 Ariz. 312, 195 P.2d 158; Coggins v. Ely, 23 Ariz. 155, 202 P. 391; 50 Am.Jur., Sec. 473, p. 486.

. State v. Packard, Utah, 250 P.2d 561.

. Citizens Club v. Welling, 83 Utah 81, 27 P.2d 23.

. Entre Nous Club v. Toronto, 4 Utah 2d 98, 287 P.2d 670.

. 123 Kan. 176, 254 P. 323, 324; Four-S Razor Co. v. Guymon, 110 Kan. 745, 205 P. 635.

. Art. VI, See. 26, Utah Constitution.

. People v. Keilly, 54 Cal.App.2d 764, 129 P.2d 939; State v. Heitz, 72 Idaho 107, 238 P.2d 439; Shearer v. Burnet, 285 U.S. 228, 52 S.Ct. 332, 76 L.Ed. 724.

. Utah Manufacturers’ Ass’n v. Stewart, 82 Utah 198, 23 P.2d 229, 232.

. Prohibited by Art. I, Sec. 9, Utah Constitution.

. See Fresh Grown Preserves Corp. v. U. S., 4 Cir., 144 F.2d 136, 139.

. See State v. Packard, supra.

. See also Abrahamsen v. Board of Review of Industrial Comm., 3 Utah 2d 289, 283 P.2d 213; State v. J. B. and R. E. Walker, Inc., 100 Utah 523, 116 P.2d 776.

. See Garey v. St. Joe Mining Co., 32 Utah 497, 91 P. 369, 12 L.R.A.,N.S., 554; 12 Am.Jur., Par. 383, p. 10.

. 1 Cooley, Constitutional Limitations (8th Ed.) p. 580.

. Utah Manufacturers’ Ass’n v. Stewart, supra.

. A. R. Young Const. Co. v. Dunne, supra.

. 89 Utah 183, 51 P.2d 645.