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THE STATUS OF LIQUOR-LICENSE LEGISLATION.
BY JOHN KOREN*
HE bald truth is that, viewed as a whole, the liquor legislation of the United States invites bewilderment and despair rather than admiration and confidence. I am not referring to the State-wide prohibitive measures which are sui generis and stand chiefly for pledges unfulfilled because impossible. Nor is the question here primarily of local option laws in their various manifestations, but of legislation intended to regulate a traffic in liquor; and in respect to this, conditions in the United States must be described as chaotic instead of well ordered. In other words, the sum total of our efforts to legislate concerning an exceedingly difficult social problem is unintelligent and thereby largely ineffective. How can it be otherwise so long as the laws aiming to regulate "an inherently dangerous traffic" proceed largely from unthinking agitation, careless or indirected experimentation, hasty piling of inconsequential statutes upon statutes and endlessly amending them in unessential details?
Perhaps most people are not aware of the true state of affairs. Others regard it complacently except when the legal machinery created for us shows too obvious signs of breaking down, and then are content to have some more tinkering done by incompetent hands. Whether we blame ignorance or indifference, the fact remains that what we are pleased to call systems of liquor legislation are, for the greater part, crude make-shifts that fail of their purpose and often prove a stumbling block in the way of good government. In proof of this, it almost suffices to state that there are nearly as many systems of dealing with the liquor traffic as there are license States, notwithstanding many points of similarity. Yet, given the same problem, which everywhere produces an abundant crop of the same perplexities, it is unthinkable that it can be met with equal success through regulative systems that differ in fundamental principles. Even a superficial consideration of the chief characteristics of present-day liquor legislation makes this clear. Space permits reference to but a few of them.
*Mr. Koren is secretary of the National Municipal League's committee on the liquor problem, and of the American section of the international committee for the scientific study of the drink problem. He was also the expert investigator for the Committee of Fifty, of which the Hon. Seth Low was chairman,
The pivotal question in all regulation of the liquor traffic is that of the authority delegated to grant privileges to sell. In its simplest form it is a question of regulating use and stopping abuse. On all sides it is agreed that the traffic cannot safely be left to seek its own level. But in regard to the means by which it should be directed and supervised, there apppears to be a singular variety of opinion as expressed in current legislation. Indeed, its diversity is almost bewildering, as may be gathered from the following summary reference to the laws on this subject of some of the States.
In a few instances the liquor traffic appears to be primarily an object of fiscal solicitude, although it may be hedged in to some extent by restrictive conditions under which the right to sell is granted, denied or canceled. Thus, New York has accepted the theory of a liquor tax law made operative through a State excise commissioner. It marks the culmination of a long series of disappointments with local licensing bodies and perhaps more the cupidity of the "up-State" people who wanted to get the license revenue for the State, hoping incidentally to make political gains out of the excise department.
Iowa can be said to dodge the whole issue because it takes refuge in a so-called mulct-law, which may be described as a device for imposing a money penalty, really amounting to a tax, upon a constitutionally outlawed traffic. Other States, exemplifying the idea that liquor laws are primarily for the purpose of taxation and not of regulation, are California, where the tax collector is the chief functionary in dealing with privileges to sell liquor, and Florida, with its State license issued by the county tax collector, but countersigned by a county judge. In the two last mentioned States, however, restrictive measures are given a degree of recognition. The municipalities of California have a wide discretion in dealing locally with liquor selling.
Most of the States still hold to the principle that the chief object of liquor legislation is not to tax the traffic but to regulate it. That is, the license is regarded as a privilege to be granted, withheld or abrogated by specified authorities, usually upon conditions more or less circumstantially defined and intended to safeguard the interests of the community. The underlying theory seems simple, perhaps, but the efforts to work it out in practice have given rise to an astounding variety of legislation and much experimentation. The statutes enacted on the subject have been legion, and the end is not yet.
To the question under whose authority licenses to sell should be granted, hardly two States return precisely the same answer; and when it is asked further under what restrictions and upon what conditions the privilege may be allowed, the divergence becomes much more striking. Most of the laws defining licensing bodies rest upon old foundations, while others have wholly abandoned them and reach out for something new. There is no space to enumerate separately the chief statutory provisions in regard to licensing authorities and their duties. It must suffice to give some examples, with the briefest possible reference to the status of this matter in most of the license States.
Perhaps no commonwealth furnishes a more perfect example of confused conditions relative to licensing authorities than New Jersey. There licenses to sell liquor may be granted: (1) By the court of commom pleas; (2) by a city council, common council, board of aldermen or other governing body; (3) by an excise board appointed by the court of common pleas; (4) by an excise board elected by a city council or other governing body; (5) by an excise board nominated by a mayor and confirmed by a city council; and (6) by an excise board chosen at a general election. It is held, moreover, that when a city adopts the commission form of government under the new law, all power to deal with liquor licenses becomes vested in the commissioners. The statutes from which these different licensing bodies derive their existence date as far back as 1838 and reach down to 1911. It can hardly be maintained that New Jersey attempted to meet half a dozen essentially different conditions within her borders by as many varieties of licensing authorities. They appear largely to be the results of accident rather than of a well-conceived plan. The restrictions to be placed upon licenses seem for the greater part to be of local invention. It is legislation ad hoc.
Investigators of the subject commonly regard it as fraught with special danger to give the licensing power into the hands of a locally elected government body. One generally finds in the practice a survival of old legislation which may or may not be bolstered up by many restrictions and conditions governing the actions of the licensing body. Among the States entrusting the delicate function of licensing the sale of liquor to some local government body, the following may be mentioned:
In Colorado, the county commissioners, city council and village
board of trustees license within their respective domains. A State license is also required. Connecticut licenses are issued by the county commissioners upon endorsement of a certain number of electors. Remonstrance and hearings are provided for. Illinois has the same divisions of licensing authorities as Colorado. Indiana employs the county commissioners as licensing authorities, but under very elaborate rules and restrictions. The right of remonstrance is provided for in profuse detail. Louisiana makes parish juries and city councils the licensing bodies. Michigan allows township board and village and city councils to regulate the traffic, mostly under local ordinances. In Minnesota, the power is vested in county commissioners and village and municipal authorities under stringent conditions and requirements in regard to bonds, sureties, etc. The Montana licensers are the county commissioners and city councils. Nebraska authorizes the county commissioners to license the traffic, also the corporate authorities of cities and villages, except that in cities of the "Metropolitan" class and those having between 25,000 and 40,000 population this duty is performed by the board of fire and police commissioners. An application must be made on petition.
In Oregon, South Dakota, Utah, Washington, Wisconsin and Wyoming, the licensing power is vested in the local government body, except that for districts in Oregon outside of cities and towns it is given the county courts. In Rhode Island the local government body is also supreme in licensing affairs, but indirectly through license commissioners appointed by it, except in Providence, where the board of police commissioners act as such. It should be noted that in cities under the commission form of government, the licensing power usually lies with the commissioners, but not invariably, as it may be vested in State officials.
Obviously, no licensing body is so likely to be swayed by political and bad trade influences as the ordinary local government board. For this statement there is too ample warrant. Yet it is hardly reflected in the legislation of some States, while others rely, as we have seen, upon fencing in what may be done or not done by all sorts of restrictions and give free play to the power of remonstrance.
Another group comprises States that, if I read the history of their laws correctly, have become less credulous about the efficacy of mere law, or have grown chastened by experience, for they have largely or altogether shorn the local government bodies of authority
to license the traffic.
In some cases a measure of home rule is preserved by the creation of locally chosen excise boards. The Massachusetts law, for instance, prescribes that in cities, except those having a licensing board created by special statute or under the provisions of a charter, there shall be a licensing board of three members, appointed by the mayor, while in towns the board of selectmen exercise the licensing power. For the city of Boston, after various abortive experiments with locally chosen license officials, a board of excise appointed by the governor has been established. When Alabama recently abandoned prohibition, the State showed its distrust of locally elective or appointive licensing authorities by providing that in each city or town where the sale of liquor is authorized, (under the operation of local option), an excise board shall be established whose members are appointed by the governor. New Hampshire has gone a step farther in creating a State licensing board with exclusive authority. In Missouri, cities of more than 300,000 population must have an excise commissioner who alone may grant saloon privileges. Vermont has local license commissioners appointed by the assistant judges of the county court.
The latest experiment with excise boards is that about to be tried by Ohio under an act passed in May of this year which became operative in August, in virtue of the enabling constitutional amendments adopted in 1912. Formerly the constitution of Ohio did not countenance the licensing of liquor selling, and the traffic was maintained under a tax law which left regulation to the local community. The new act creates a State licensing board of three members, appointed by the governor. This State board appoints for each county throughout which the sale of liquor is not prohibited by law, a county licensing board of two members, with power to remove them for cause. The county boards have general jurisdiction in licensing matters, subject to law and to revision by the State board to which appeals lie from all final decisions of a county, except in cases of suspension or the rejection of an application. The prescriptions in regard to license conditions, etc., are very elaborate. One noteworthy innovation is that, upon petition of 35 per cent. of the electors of a municipality, a special election may be held to decide whether saloon licenses shall be further limited than provided by the statute (one to five hundred to population).
Still another group of States, apparently distrustful of all