O'Connor v. City of Moscow , 69 Idaho 37 ( 1949 )

Under the express provisions of Sec. 49-313, Idaho Code, a city of the second class, such as Moscow, has the power to restrain, prohibit and suppress billiard tables. Thus, as far as respondent's business of operating billiard tables, which usually is construed to include pool tables, Anno. 20 A.L.R. 1492, the City of Moscow had the right not only to regulate but to also prohibit and suppress that business.

It would appear that "Any restriction or regulation intermediate between complete prohibition on the one hand and no regulation on the other, is within the authority conferred upon the City", Johnson v. City of Lawrence et al.,120 Kan. 65, 241 P. 1083.

It is also to be noted that under provisions of the statute making provision for the sale of beer, nothing therein shall be so construed as to prohibit or prevent municipalities from licensing and regulating places of business where beer is sold to consumers. Sec 6, Chpt. 192 of the 1947 Session Laws.

The purpose of the ordinance in question appears to have been to ultimately confine all places of business of the character mentioned to the portion of the business section of the City of Moscow north of First Street.

"The courts, in reviewing municipal ordinances, have consistently proceeded on the premise that local municipal authorities are presumed to have, and do have, knowledge of local conditions and have been induced by competent reasons to take the action which they have taken, so that their exercise of discretion with reference to the needs of the local community should be respected." 37 Am.Jur. 818. And the discretion of the municipal corporation in the exercise of the police power will not be interfered with by the courts upon light grounds.

The business of operating billiard and pool tables for gain and a beer parlor where draft beer is sold is not recognized as a useful business, although it is a lawful one, and I do not think it can seriously be contended that the City of Moscow does not have the authority to confine such business places to reasonable territorial limits within its borders. 37 Am.Jur. 957; State ex rel. Thornbury v. Gregory, 191 Wash. 70,70 P.2d 788. Nor do I think the evidence in this case would justify a finding that it is unreasonable to confine the business here in question to that position of the business section of Moscow north of First Street.

If, under the circumstances, the City can compel respondent to remove his business from its present location to the territory mentioned, as I believe it can, the respondent should not complain, as the City Council of Moscow appears to have been very considerate of his interest.

The City Council of Moscow, in passing the ordinance in question, obviously intended and had in mind relief for those actually engaged in the type of business sought to be prohibited in the territory south of Main Street. It apparently recognised that they had investments made in their present location that could not be suddenly changed to a new location without serious loss. But the fact that the council did try to alleviate the loss in this respect by not requiring these businesses to move until there was a change in ownership does not present facts which justify complaint on their part.

The ordinance properly had in mind the eventual elimination of the business here in question within the excluded territory, and it does not appear to me that the determination of the date of such elimination on the basis of ownership is any more unreasonable or arbitrary than a fixed date of so many days, weeks or months hence.

At best respondent's right to sell draft beer and to operate a pool hall was but a mere temporary permit, and the authority which granted it retains the power to revoke it. Roberts v. Boise City, 23 Idaho 716, 717 132 P. 306, 45 L.R.A., N.S., 593.

I am of the opinion that the case should be reversed.