Las Vegas City Commission Minutes, January 7, 1947 to October 26, 1949, lvc000006-303

279 The division (i), (j) and (k) of the law provided that the administrator of the law might deny or revoke a license on proof that the applicant or licensee is (i) wil­fully discriminatory, directly or indirectly, in price differences where it will substantially lessen competition and thereby tend to create a monopoly or tend to injure or destroy the business of the competitor, (j) willful discrimination be­tween purchasers, or (k) willful discrimination in regard to trade-ins so as to destroy a competitors business or tend to create a monopoly. The Court pointed out that the constitutional guarantees contemplate that every person legally possesses the right of acquiring the absolute and unqualified title to every species of property recognized by law, with all rights incidental thereto, and, in connection with the right to dispose of such property in such innocent manner as he pleases, and to sell it at such price as he can obtain in fair barter (28l N.W. 607). A person has a right to follow any lawful business pursuit, not injurious to a community, which he may see fit, without being res­tricted by arbitrary restraints. Incidental to this, he has the right to labor or employ labor, make contracts in respect thereto upon such terms as the parties may agree, and to purchase, sell, inherit, sell and convey property of all kinds. Under the guise of regulation these agreements may not be arbitrarily abridged (144 N.W. 795). It will be noted, therefore, that in subdivisions (i) and (k) the prohibited acts are unlawful only where the effect of such discrimination may be sub­stantially to lessen competition or tend to create a monopoly, or to injure or des­troy the business of a competitor. The act itself is not prohibited (and I might point out in the instant case that the act of selling the information - the dissemination of the news from the owner of the wire service to the purchaser thereof - it not itself pro­hibited - nor is it, unless it can be shown to be "affected with a public interest" or "clothed with a public use" - subject to the type of regulation that is proposed: it is the act accompanied by an intent to accomplish a result made unlawful by the statute (which the legislative body attempted to correct). The Court in the foregoing Nebraska case goes on to state that as to subdivision (j) the element of intent is lacking. The prohibition is against wilful dis­crimination in favor of one purchaser against another in the respects noted therein, without reference to the intent or motive of the person so doing. It is a price fixing statute. It is violative of the holdings heretofore cited and the constitutional prohibitions hereinabove referred to. As stated in "STATE vs. RUBACK" (Neb. 28l N.W. 607), "the test to determine whether a statute defining the offense is void for uncertainty (1) is whether the language may apply to a particular act about which there can be little or no difference in opinion, but equally to other acts about which there may be radical differences, thereby devolving on the Court the exercise of arbi­trary power as discriminating between the several classes of acts." There is no question that the business of selling or disseminating the news to be used in the gambling business is a business "affected with a public interest" and/or "clothed with a public use." It is my understanding that nearly fifty per cent or more of the revenue of the City of Las Vegas is derived frcm gambling businesses, and the City of Las Vegas, through its Board of City Commissioners, has the authority and power under its Charter to regulate such a business and to pass an ordinance requiring the seller thereof to furnish it to all applicants licensed by the City upon the payment of the fee charged by the seller thereof, without discrimination. However, the proposed ordinance does not set forth the reason for the particular regulation and the evil which the regulation intends to overcome, nor does it prescribe a penalty for violation thereof, and as drawn it is my opinion that the proposed ordinance is unconstitutional and void. Respectfully submitted, C. Norman Cornwall /s C. Norman Cornwall City Attorney CNC: kb Motion seconded by Commissioner Clark and carried by the following vote: Commis­sioners Clark, Moore, Whipple and His Honor voting aye; noes, none. Absent: Com­missioner Baskin. Thereafter Commissioner Whipple moved that Ordinance No. 357 be approved on its second reading. Motion seconded by Commissioner Clark with the following vote: Commissioner Whipple and His Honor voting aye: Commissioners Clark and Moore voting nay. Absent: Commis- sioner Baskin. This ordinance was not adopted. PROPOSED ORDINANCE The committee on Ordinance No. 362 amending certain portions of ordinance No. 349, NO. 362 composed of Commissioners Clark and Moore asked for additional time to study ordin- ance before reporting. PROPOSED ORDINANCE An ordinance entitled: AN ORDINANCE DECLARING CERTAIN TERRITORY ADJOINING AND CON- No. 36l TIGUOUS TO THE CORPORATE LIMITS OF THE CITY OF LAS VEGAS TO BE ANNEXED TO THE CITY 2nd Reading OF LAS VEGAS; ORDERING A PLAT SHOWING SAID TERRITORY TO BE RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF CLARK, STATE OF NEVADA; AND OTHER MATTERS