¶1(dissenting).
¶2The only question here is whether the .state may disqualify certain women as bartenders while permitting this avenue of employment to other women having less legal right to so act than those prohibited.
¶3Therefore I cannot concur with my respected associates for two reasons:
¶4First, This law in my opinion violates Sec. 1 of the Fourteenth Amendment because it
¶5A. Discriminates between persons similarly situated;
¶6B. Denies plaintiffs equal protection of the laws; and
¶7C. Its proviso that the wife and daughter of a male licensee may act as bartender while denying the same privilege to either the female licensee or her daughter, is palpably arbitrary, capricious and unreasonable, and not based on facts that can reasonably be conceived.
¶8Second, That plaintiffs should be permitted to present evidence before we act on the interlocutory injunction.
¶9First.
¶10It violates Sec. 1 of the Fourteenth Amendment.
¶11The material part of Sec. 1 reads as follows :
¶12“ … nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
¶13Conceding that the legislature, guarding the health, safety, and morals of the people, under its police power, has a tremendously wide latitude of discretion (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369, Ann.Cas. 1912C, 160; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 510, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327); agreeing that any discriminatory classifications need not be “with mathematical nicety, or because in practice it results in some inequality” (Lindsley v. Natural Carbonic Gas Co. supra [220 U.S. 61, 31 S.Ct. 340]), I nevertheless query: What is the purpose of the Fourteenth Amendment if not to prevent gross, unreasonable discrimination of this kind? Both the state and federal constitutions provide for checks and balances. Our legislature has not been given carte blanche to enact any and all kinds of legislation. As stated in Dobbins v. Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 20, 49 L. Ed. 169:
¶14“The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoilation of a particular class.”
¶15No legislature may in effect say “We make this distinction, foolish and unfair though we know it to be, because we are in the mood.” It cannot — because ou'r courts have vigilantly and consistently closed the entrance to those fertile fields of unconstitutionality, unfairness and inequality by reiterating again and again that no law may be capricious, unreasonable or arbitrary. This law, in my humble opinion, bears the stigma of all three because:
¶16A. Discriminating Between “Persons Similarly Situated.”
¶17Mr. Justice McKenna in Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 704, 48 L.Ed. 1062, says:
¶18“Those contentions are that the Ohio statute denies plaintiff in error the equal protection of the law, and deprives him of liberty and property without due process of law.
¶19“The first contention can only be sustained if the statute treat plaintiff in error differently from what it does others who are in the same situation as he, — that is, in the same relation to the purpose of the statute.” (Emphasis ours)
¶20Our own Michigan Supreme Court in People v. Case, 153 Mich. 98, 116 N.W. 558, 18 L.R.A.,N.S., 657, quoting from a Colorado decision, (Adams v. Cronin, 29 Colo. 488, 69 P. 590, 63 L.R.A. 61), puts its *741stamp of approval on the constitutionality of an ordinance because it “does not operate as a discrimination between different licensees. It applies equally to everyone of that class, ….” [153 Mich. 98, 116 N.W. 560] (Note: The Michigan law cannot pass this test of constitutionality.)
¶21See also State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 76, 2 Ann.Cas. 92, where the court said:
¶22“Ordinances must be general in their character, atid operate equally upon all persons within the municipality, of the same class, to whom they relate.”
¶23In Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 647, 54 L.Ed. 987, we read:
¶24“The selection of the exempted classes was within the legislative power, subject only to the restriction that it be not arbitrary or oppressive and apply equally to all persons similarly situated.” (Emphasis ours)
¶25In the case at bar the Michigan Supreme Court boldly admits that this act discriminates between male and female licensees. In Fitzpatrick v. Liquor Control Commission, 316 Mich. 83, at page 91, 25 N.W.2d 118, at page 121, the court said:
¶26“Plaintiffs claim (and it must be admitted) that in so doing the legislature has discriminated between male and female licensees, as to who may act as bartenders.”
¶27Briefly that proviso permits the male owner, his wife and daughter, to act as bartenders in his business, but denies the same privilege to both the female owner and her daughter.
¶28If this is not an instance of unjust discrimination against persons similarly situated in the same business, in the same relation to the purpose of the statute and in the same class, it would be difficult to find one.
¶29B — It Denies Plaintiffs Equal Protection of the Laws.
¶30Let us review the admitted facts. According to the bill of complaint this is not a new venture for Mrs. Goesaert. She is not just now going into the liquor business under this new law. She started business, bought property, and incurred obligations under a law that permitted her to do exactly what her license said she could do — own and operate a business.
¶31I accept the well known rule of law that a license to sell liquor is not a property right but a privilege (Glicker v. Michigan Liquor Control Commission, 6 Cir., 160 F. 2d 96), but here the question is not whether this woman will be granted a license. The issue is, having granted her a license, can the legislature arbitrarily and unreasonably change the rules in 'the middle of the game as against her alone because she happens to be a woman licensee.
¶32In this connection it must be remembered that Michigan’s liquor law, Pub.Acts 1933, Ex.Sess., No. 8, § 19, as amended by Pub. Acts 1945, No. 133, section 18.990, subsection 15, Mich.Stat.Ann., provides that one owning a liquor license, even in a community where the number of licensees operating exceeds the legal quota, may have his or her license renewed each succeeding year, and licenses almost automatically continue from year to year. Even quota restrictions do not prevail if such license was held before May 1, 1945. Plaintiff, Goesaert, did have such a license and evidently the legislature recognized in this privilege a property right that should not be restricted or removed. Still, while refusing to change the rules as unfair in one section of the act, in the succeeding section the legislature makes the debated change that lias abridged her property rights immeasurably.
¶33Where is the “equal protection” for her ?
¶34Under this act a woman whose husband, a male licensee, has just died, finds herself at an added disadvantage. She not only has lost her husband, but neither she nor her daughter may help run the family business as they did when the main breadwinner was alive. Across the street her male competitor may permit his wife and daughter to run his business even if he works in a factory miles away.
¶35Has not this woman by every test of reasoning been deprived of the equal protection of the laws?
¶36One’s sense of fair play and justice rebels and it is not strange that in validating the constitutionality of this act in the Fitzpatrick case, supra, the court found it expedí*742ent to recall Justice Cooley’s admonition in “Constitutional Limitations,” viz., that courts cannot “run a race of right, reason, and expediency with the legislative branch of the state government.” But to this I feel impelled to add an extract from Liggett Co. v. Baldridge, 278 U.S. 105, 49 S. Ct. 57, 59, 73 L.Ed. 204—
¶37“A state cannot, ’under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.’ ” (Emphasis ours)
¶38C — The Law is “Palpably Arbitrary, Capricious and Unreasonable.”
¶39Lindsley v. National Carbonic Gas Co., supra, cited by my colleagues, and a widely quoted case, holds that the constitutionality of any legislative enactment may be attacked “when it is without any reasonable basis, and therefore is purely arbitrary.” And further that, “if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.” This law can be upheld then only if it is not arbitrary and unreasonable under any set of facts that can reasonably be conceived. Well, what facts can those be? The majority opinion seeks to enumerate by stating that the legislature might have had in mind, to-wit:
¶40“ … that a grave social problem … would be mitigated to the vanishing point in those places where there was a male licensee ultimately responsible for the condition and the decorum maintained in his establishment.”
¶41What has been the 14 years’ experience of the Liquor Commission on that point? Have there been more, or less, violations where the licensee was a woman acting as her own bartender, as compared to licenses held by males? Has the “decorum” been better or worse ?
¶42Another suggested conceivable fact— “ … the self interest of male licensees in protecting the immediate members of their families would generally insure a more wholesome atmosphere in such establishments.”
¶43What has been the experience here? Would not a widow, for example, with a valuable license be more determined than a male licensee in protecting her family and livelihood ? Is a father more interested in assuring a “wholesome atmosphere” than a mother?
¶44Further, that the legislature “may also have considered the likelihood that a male licensee could provide protection for his wife or daughter that would be beyond the capacity of a woman licensee … ”
¶45But it must be remembered that no male adult is required to be present when the wife or daughter is bartender. In fact it is common knowledge that there are many male licensees who have other jobs, helping out only in the bar, daytimes, if working nights, or at night when working daytime. Surely the wife or daughter of a male licensee is just as subject to the perils of her employment, in the absence of her husband or father, as the female licensee or her daughter. Has not the female licensee provided protection to herself and daughter in the past?
¶46We are immediately challenged that this goes to the wisdom of the legislature and we agree that the wisdom of what the legislature has done is not the issue. This goes beyond the “wisdom,” and we have searched in vain for the faintest semblance of facts that can be “reasonably conceived” to bolster this admittedly discriminatory legislation.
¶47Nor can its enactment be logically defended on the theory that the police power is an inherent right of legislatures in matters of public health, safety, and morals. It is still necessary that the distinction be reasonably related to the object of the legislation (New York Rapid Transit Corp. v. New York, 303 U.S. 573, 578, 58 S.Ct. 721, 82 L.Ed. 1024); and in holding an ordinance which prohibited sale of liquor in dry goods stores unconstitutional (Chicago v. Netcher, 183 Ill. 104, 55 N.E. 707, 709, 48 L.R.A. 261, 75 Am.St.Rep. 93), the court said:
¶48“The restriction is purely arbitrary, not having any connection' with and not tending in any way towards the protection of, *743the public against the evils arising from the sale of intoxicating liquor.”
¶49Can it be contended that it promotes public safety to permit only women to act as bartenders who happen to be the wife or daughter of the male owner of the business while neither the woman who owns her own license nor her daughter can so act?
¶50Can it be contended that a woman bartender would promote the morals of an establishment if her husband or her father were the licensee more than if she or her mother held the license?
¶51And is it claimed that the male owner is more solicitous of sanitation or public health than the female?
¶52On all three points, safety, morals, and health, would not the contrary be more likely to exist?
¶53Something New?
¶54My colleagues cite as “persuasive” but “not controlling” the Michigan decision in Fitzpatrick v. Liquor Control Commission, supra. Let us examine two citations given therein.
¶55On page 124 of 25 N.W.2d it refers to Section 5363 of the Michigan Compiled Laws 1897, to-wit—
¶56“That this act shall not be so construed as to prevent the wife or other females who are bona fide members of the family of a proprietor of a saloon from tending bar or serving liquors in his saloon.”
¶57This may well be the fount from which the present provision in our law drew the breath of life so further analysis is interesting. The words “in his saloon” are significant. Seldom if ever fifty years ago were women granted licenses to sell liquor. As a matter of fact women were not frequenters of bars or saloons. There was an ingenious subterfuge labeled “family entrance” but comparatively few women availed themselves of that means of seeking refreshments. Today there is no such prohibition affecting women. They can and are licensees, and can and do frequent places where liquor is sold. The 1897 law has no application.
¶58The second citation refers to the California ordinance, People v. Jemnez, 49 Cal.App.2d Supp. 739, 121 P.2d 543, 544 claimed by our Michigan Supreme Court to be a “case quite in point with the case at bar.” We quote:
¶59“The provisions of this section shall not apply to the mixing of alcoholic beverages … by any on-sale licensee nor to the mixing of such beverages by the zvife of any licensee on the premises for which her husband holds” an on-sale license.” Gen.Laws, Act 3796, § 56.4. (Emphasis ours)
¶60Obviously in California a woman may also be a licensee and it is worthy of note that in California if a woman is the licensee she may act as bartender to the same extent as the wife of the male licensee. We agree that the case is in point but for plaintiffs — not defendant.
¶61Not only California but other states having similar legislation have carefully avoided writing in any liquor prohibition that places woman in different categories.
¶62Many of these “similar laws” are cited in defendant’s brief but I find upon scrutiny that by inference at least, all favor plaintiffs and not defendant.
¶63In Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365, a case relating to the constitutionality of a Denver ordinance, we find that women — all women including the wife and female children of the owner —were prohibited from entering any saloon.
¶64In People v. Case, supra, the Flint ordinance barred women — all women — from being in or about the bar.
¶65In City of Hoboken v. Goodman, 68 N.J. L. 217, 51 A. 1092, the ordinance in question is very significant. It prevented any female from acting as bartender unless she was the wife of the owner or owned the business herself.
¶66The California Statutes, Deering’s California General Laws, Vol. 2, Act 3796, page 1353, Sec. 56.4, page 1413, also exempted from the class prohibited the wife of the owner and the ozpner herself.
¶67In Nelson, Chief of Police v. State ex rel. Gross, 157 Fla. 412, 26 So.2d 60, the prohibition was against all women — no exceptions.
¶68*744Does it mean nothing that all states passing similar laws have avoided drawing the distinctions between women bartenders that Michigan has?
¶69Can it be that members of the legislatures of those states are less solicitous of their women folks than Michigan? Or has “chivalry” (Fitzpatrick case, supra) returned to the Michigan legislature alone among our forty-eight states?
¶70Second.
¶71Plaintiffs should be permitted to present evidence.
¶72Under subdivision C of the first section, I ask what the experience of the Liquor Control Commission has been on those certain suggested facts that could reasonably “be conceived” to substantiate the law. This is in line with accepted decisions such as Borden’s Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187,193, 79 L.Ed. 281, wherein Mr. Justice Stone and Mr. Justice Cardozo, concurring, said:
¶73“We are in accord with the view that it is inexpedient to determine grave constitutional questions upon a demurrer to a complaint, or upon an equivalent motion, if there is a reasonable likelihood that the production of evidence will make the answer to the questions clearer.”
¶74The same rule of equity is followed in Polk Co. v. Glover, 305 U.S. 5, 83 L.Ed. 6, 59 S.Ct. 15; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; Franklin Tp. in Somerset County, N. J., v. Tugwell, 66 App.D.C. 42, 85 F.2d 208; and a very able but dissenting opinion by Justice Hughes — Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 56 S.Ct. 918, 80 L.Ed. 1347, 103 A.L.R. 1445.
¶75Plaintiffs herein specifically charge that the law is arbitrary and our courts are unanimous that they should have an opportunity to prove their case. On the other hand, if we refuse to continue the injunction to hear what proofs they may ' have the damage to their business will have been done before any action on appeal can be taken. In any event, plaintiffs should be permitted to develop the factual situation.
¶76The Glicker Case.
¶77Before concluding I again refer to Glicker v. Michigan Liquor Commission, supra. While the issue there was different there is much in common between these two cases and much substance in the Glicker case that can be applied here.
¶78For example on page 99 of 160 F.2d we find:
¶79“In Hartford Steam Boiler Inspection & Insurance Co. v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 839, 81 L.Ed. 1223, the Court pointed out that while the Fourteenth Amendment allows reasonable classification of persons, yet it forbids unreasonable or arbitrary classification or treatment, and … the rights of all persons must rest upon the same rule under similar circumstances …. In Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154, the Court said at page 352 of 247 U.S., at page 495 of 38 S.Ct., 62 L.Ed. 1154 — ‘The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’ (Emphasis added.) … Snowden v. Hughes, supra,321 U.S. 1, at page 8, 64 S.Ct. 397, at page 401, 88 L.Ed. 497, where it is stated — ‘The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.’ ” (Emphasis added.)
¶80The above could have been written for this case.
¶81Conclusion.
¶82For the reasons given and because I firmly believe that if this court endorses this type of discriminating legislation it opens the door for further fine “distinctions” that will eventually be applied to religion, education, politics and even nationalities, I must dissent.