Albrethsen v. State

• Citation: 96 P.2d 437,60 Idaho 715
• Decision Date: 18 November 1939
• Docket Number: 6675
• Parties: H. ALBRETHSEN, Plaintiff, v. STATE, Defendant
• Court: United States State Supreme Court of Idaho

96 P.2d 437

60 Idaho 715

H. ALBRETHSEN, Plaintiff, v. STATE, Defendant

No. 6675

Supreme Court of Idaho

November 18, 1939

CONSTITUTIONAL LAW-CONSTITUTIONALITY OF STATUTE, WHO MAY RAISE-STATE AS PARTY-RECOMMENDATORY JUDGMENT.

1. One may not question constitutionality of a statute unless it is being or is about to be applied to his disadvantage, or he will be injured by its enforcement, and such rule is applicable to the state as well as to an individual.

2. Constitutionality of a statute will not be passed on unless essential to decision of the case.

3. The Supreme Court may take judicial notice of the reports of the various state officials and departments. (I. C. A., sec 16-101.)

4. In action for recommendatory judgment, Supreme Court resorts to both law and equity.

5. In original proceeding for recommendatory judgment by special investigator for Idaho Liquor Control Commission which rejected the special investigator's claim for expenses incurred in connection with his work, the state could not raise question of constitutionality of the liquor control act in view of fact that the state was not injured financially by the operation of the act but was financially benefited thereby and there was no allegedly unconstitutional penal provisions argued or presented as disadvantageous to state. (Sess. Laws 1935, chap. 103, secs. 45, 47, 48; Const., art 5, sec. 10.)

Original proceeding under article 5, section 10, for a recommendatory judgment. Judgment for plaintiff.

Ariel L. Crowley, for Plaintiff.

Constitutionality of a statute may not be raised in a collateral proceeding. (12 C. J. 783; Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568.)

Even if an act in invalid, nevertheless, where services have been rendered under it by ministerial employees in good faith, the act being meanwhile fully operative and treated as valid by public officials and courts alike, the moral obligation will support recommendatory judgment for payment for labor done and expense incurred. (United States v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215; Miller v. Dunn, 72 Cal. 462, 14 P. 27, 1 Am. St. 67; 11 Am. Jur. 831.)

Having sought to, and succeeded in enforcing the provisions of chapter 103, 1935 Session Laws in the case of State v Conner, 59 Idaho 695, 89 P.2d 197, the State is not now in any position to question the constitutionality of the act. (Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654.)

J. W. Taylor, Attorney General, E. G. Elliott and Lawrence B. Quinn, Assistant Attorneys General, for Defendant.

The act is an unconstitutional legislative attempt to authorize the State to engage in the business of the purchase and sale of intoxicating liquors, under the guise of exercising its police power. (Art. 3, sec. 26, as amended Nov. 6, 1934, Const. of Idaho; State Water Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779; Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307; 11 Am. Jur. 966; Cooley's Const. Lim., 8th ed., vol. 2, p. 1223.)

"Having sought to, and succeeded in enforcing the provisions of chapter 103, 1935 Session Laws in the case of State v. Conner, 59 Idaho 695, 89 P.2d 197, the State is not now in any position to question the constitutionality of the act."

The State is never estopped to set up the unconstitutionality of an act until this has been finally determined by a court of competent jurisdiction. (Neil v. Public Utilities Com., 32 Idaho 44, 178 P. 271.)

Fred M. Taylor and Maurice H. Greene, Amici Curiae.

A court will determine the constitutionality of a statute only when such determination is necessary to a decision. (In re Brainard, 55 Idaho 153, 39 P. 769.)

GIVENS, J. Budge and Morgan, JJ., concur, Ailshie, C. J., concurs in the conclusion. Holden, J., dissents.

OPINION

GIVENS, J.

Plaintiff sues under article 5, section 10 of the Constitution for a recommendatory judgment to the legislature, alleging in his complaint that he was employed by the Idaho Liquor Control Commission under 1935 Session Laws, chapter 103, page 222, as a special investigator to inquire into violations of said statute. That under such employment he worked six days during December, 1938, at a fixed wage of $ 5 a day. That in connection with his work and under the direction of the Idaho Liquor Control Commission he incurred expense of $ 7.37. That his claim for said wages and expenses was approved by the liquor control commission but disapproved by the State Board of Examiners as follows:

"Upon investigation, it was determined that the above four claimants are special investigators securing evidence for the Idaho Liquor Control Commission; however, no provision is made in the Idaho Liquor Control Act for the payment of such claims, and the same were therefore disapproved by the Board of Examiners."

And that on January 16, 1939, said board entered the following in its Book of Minutes:

"Upon investigation it was determined that the above 33 claims against the Liquor Control Act Fund are claims of special investigators securing evidence for the Idaho Liquor Control Commission; however, no provision is made in the Idaho Liquor Control Act for the payment of such claims, and the same were therefore unanimously disapproved by the Board of Examiners."

The complaint further alleges there was at all times in the liquor control fund sufficient money to pay such claims.

The attorney general on behalf of the State filed a general demurrer to the complaint, and in support thereof does not question the authority of the liquor control commission to have so employed plaintiff, stating:

" . . . . The complaint alleges and the demurrer admits that said services were rendered and said expenses incurred by the plaintiff as an employee of the Idaho Liquor Control Commission under the provisions of chapter 103 of the 1935 Session Laws, to the full extent said Act empowered said Commission to employ plaintiff and authorize the incurring of said expenses by him." which feature we therefore need not further consider. The sole ground of defense is that chapter 103 of 1935 Session Laws is unconstitutional on various grounds.

It is axiomatic that one may not question the constitutionality of a statute unless it is being or is about to be applied to his disadvantage, or he will be injured by its enforcement. (Utah Power & Light Co. v. Pfost, 286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038; Washington Water Power Co. v. Coeur d'Alene, 9 F.Supp. 263; Iowa Life Ins. Co. v. Board of Suprs., 190 Iowa 777, 180 N.W. 721; Williams v. Baldridge, 48 Idaho 618, 284 P. 203; In re Allmon, 50 Idaho 223, 294 P. 528; In re Brainard, 55 Idaho 153, 39 P.2d 769; Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923.) The State in this situation stands in no different position than any other litigant. (City Council v. Board of Commrs., 33 Colo. 1, 77 P. 858; State v. Roseberry, 37 Ariz. 78, 289 P. 515; Riverton Valley Drainage Dist. v. Board of Commrs., 52 Wyo. 336, 74 P.2d 871, 114 A. L. R. 1093; State v. State Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A. L. R. 362; State v. Cage, (Tex. Civ. App.) 176 S.W. 928.) A careful search of the State's briefs fails to disclose an assertion of legal injury to the State or a single case which has upheld a challenge of unconstitutionality of a statute by the State under a similar situation.

Furthermore the constitutionality of a statute will not be passed on unless essential to a decision of the case. (Howell v. Board of Commrs. of Ada County, 6 Idaho 154, 53 P. 542; McGinness v. Davis, 7 Idaho 665, 65 P. 364; Jack v. Village of Grangeville, 9 Idaho 291, 74 P. 969; Mills Novelty Co. v. Dunbar, 11 Idaho 671, 83 P. 932; Logan v. Carter, 49 Idaho 393, 288 P. 424; In re Allmon, supra; Garrity v. Board of County Commrs., 54 Idaho 342, 343, 34 P.2d 949; State Ins. Fund v. Board of Commrs., 54 Idaho 359, 34 P.2d 956; Kimbley v. Adair, 32 Idaho 790, 189 P. 53; In re Brainard, supra.)

The present action in no way directly involves any penal provision of the questioned statute and since the State has successfully prosecuted, ^[1] and therefore taken advantage of some of the penal provisions it would seem clear it has not been and is not being in any way injured by the statute or its enforcement, not because it was successful in prosecuting under it, but because it has availed itself of the statute, and no penal provision, the unconstitutionality of which is asserted, is argued or presented as disadvantageous to the State or its interests as a political entity. The State has disclosed no privity of interest with any person or corporation who might be affected personally, criminally or civilly, by enforcement of the statute or operations carried on under it.

Section 47 of the Act provides that:

"The Liquor Control Act Fund shall consist of all moneys derived from the sale of bonds as provided in this Act, and all revenues derived from alcoholic beverages, excise taxes, license, purchasers' permit fees, profits on original container sales, or other revenues resulting from the operation of this Act."

Section 45 covers the custody and distribution of the fund as follows:

" . . . . All moneys appropriated for, accruing to or received by said fund are hereby appropriated for the purpose of this Act for the purchase of alcoholic liquors and payment therefor and of such other expenses of administration or other purposes as may be necessary to establish and operate State Liquor Stores and special distributors, and the same shall be paid out by the State Treasurer only upon state vouchers prepared and approved by the State Liquor Control Commission, certified to by the chairman of the commission and approved by the State Board of Examiners."

Section 48 governs the apportionment of...