Anderson v. Board of Com'rs of Lemhi County

• Decision Date: 21 June 1912
• Citation: 125 P. 188,22 Idaho 190
• Parties: WILLIAM ANDERSON and THE CITY OF SALMON, Respondents, v. BOARD OF COMMISSIONERS OF LEMHI COUNTY, Appellants
• Court: Idaho Supreme Court

125 P. 188

22 Idaho 190

WILLIAM ANDERSON and THE CITY OF SALMON, Respondents, v. BOARD OF COMMISSIONERS OF LEMHI COUNTY, Appellants

Supreme Court of Idaho

June 21, 1912

LICENSE TO SELL INTOXICATING LIQUORS-DISCRETION OF BOARD IN GRANTING OR REFUSING A LICENSE-DUTY OF BOARD TO MAKE INVESTIGATION OUTSIDE OF INCORPORATED CITIES-AUTHORITY OF BOARD OF COMMISSIONERS SUPERIOR TO CITY COUNCIL.

(Syllabus by the court.)

1 Secs. 1507, 1508, 1512 and 1513 of the Rev. Codes, when read and construed together, recognize the power of the board of county commissioners to grant or refuse an application for a license to sell intoxicating liquors at any place within the boundaries of the county, and authorize the board of commissioners to act upon all applications where they have been made at least twenty days before the meeting of the board at which action is to be taken; and in taking such action and granting or rejecting an application, the board is vested with a discretionary power, and that discretion extends as well to applications made for license to sell within the boundaries of an incorporated city as to applications for license to sell in an unincorporated town or village or in a rural community.

2. The proviso contained in sec. 1508 of the Rev. Codes, "that when application is made for the sale of intoxicating liquors, for a place outside of any incorporated city, either upon their own motion or upon objections duly filed upon the part of any citizen and resident of the precinct within which it is intended to carry on such sale, the county commissioners shall determine whether or not the granting of such license will be conducive to the best interests of the community," etc., should be construed as imposing a positive duty upon the board to make the investigations therein required in cases of applications to sell intoxicating liquors for any place outside of an incorporated city, and should not be construed as a limitation of the discretionary power of such board; the purpose of the proviso being to impose a special duty upon the board in exercising its discretion in certain cases rather than to limit its power and discretion in other cases.

3. Statutes authorizing the licensing of the liquor traffic and conferring upon the licensee the authority to retail intoxicating liquors must be read and construed in the light of a grant rather than that of a limitation of a right,-no one having an inherent, natural or inalienable right to carry on the business of retailing intoxicating liquors. And one who claims the right or seeks to establish such right must point out in clear and unmistakable terms a legal grant of such right covering his specific case and that he has complied with the terms of the statute granting such right.

4. Sec 1512 of the Rev. Codes authorizes and empowers the board of county commissioners to revoke a license issued by them to sell intoxicating liquors, and this statute would be rendered nugatory, useless and ineffective for any purpose if it should be held that the proviso to sec. 1508, Rev. Codes renders it mandatory upon the board to issue a license to sell intoxicating liquors within any incorporated city, and that no discretionary power rests in the board in such cases.

5. The board of county commissioners exercise the higher and superior power in the matter of granting licenses to sell intoxicating liquors within an incorporated city, and unless an applicant can procure a license from the board of county commissioners he has no authority to sell within the boundaries of an incorporated city, and the municipal authorities have no power or right to grant a license to one who has not been able to procure a county license.

APPEAL from the District Court of the Sixth Judicial District, for the County of Lemhi. Hon. James M. Stevens, Judge.

Action by plaintiff to procure a writ of mandate. Writ granted. Defendants appeal. Reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant.

J. K. Rankin, and E. W. Whitcomb, for Appellants.

The courts are now generally recognizing the fact that no person has an inherent right to engage in the liquor traffic. (Darby v. Pence, Mayor, 17 Idaho 697, 107 P. 484, 27 L. R. A., N. S., 1194; Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620; Smyth v. Co. Commrs. (Utah), 112 P. 809, 32 L. R. A., N. S., 393; State ex rel. Noble v. Cheyenne, 7 Wyo. 417, 52 P. 975, 40 L. R. A. 710; Sherlock v. Stuart, 96 Mich. 193, 55 N.W. 845, 21 L. R. A. 580; Black Int. Liquors, sec. 48.)

There is nothing contained in the statutes of Idaho making it obligatory on the part of the county commissioners to grant a license to anybody, under any condition. Sec. 1507, Rev. Codes, provides that an application for a license "may" be granted or rejected, and the very use of this word implies discretion. The word "may" is seldom or never used in a mandatory sense, except where the public is interested, and the public or third persons have a claim, de jure, to have the power exercised. (Malcolm v. Rodgers, 5 Cow. (N. Y.) 188-193, 15 Am. Dec. 466, and note; People ex rel. Brokaw v. Commissioners, 130 Ill. 482, 22 N.E. 596, 6 L. R. A. 161; Bansemer v. Mace, 18 Ind. 27, 81 Am. Dec. 344; Newburgh Turnpike Road v. Miller, 5 Johns. Ch. (N. Y.) 101, 9 Am. Dec. 274, 279; State ex rel. Kyger v. Holt County Justices, 39 Mo. 521; State ex rel. Gazzalo v. Hudson, 13 Mo.App. 61, Black, Int. Liquors, sec. 170.

The claim of a third person must be based upon an existing right, in order for the courts to construe the word "may" in a mandatory sense. The respondent, Anderson, had no existing right which the courts were bound to recognize. (Darby v. Pence, Mayor, supra.)

The use of the word "may," in our statute, necessarily implies discretion and is used in its ordinary signification in contradistinction to the words "must" and "shall." (Ex parte Wittington, 34 Ark. 394; Perkins v. Loux, 14 Idaho 607, 95 P. 694.)

The courts are unanimous in holding that before any power granted to a municipality shall be exclusive, it must be conferred by positive and certain enactment, and not otherwise. (Territory v. Webster, 5 Dak. 351, 40 N.W. 535; Licks v. State, 42 Miss. 316; Black, Intoxicating Liquors, sec. 226.)

The purpose and effect of the proviso in sec. 1508, Rev. Codes, was not to limit the discretionary power of the commissioners as to granting licenses, but was in the nature of a qualification or limitation of their powers, with reference to certain localities, in the sense that it obliged the board to take certain action in relation thereto, which it was not obliged to take with reference to licenses granted in incorporated municipalities. (Propst v. So. Ry. Co., 139 N.C. 397, 51 S.E. 920; Wartensleben v. Haithcock, 80 Ala. 565, 1 So. 38; 36 Cyc. 1161-1163.)

F. J. Cowen, and George W. Padgham, for Respondents.

The legislature has set the limits of the discretion of the county board. It has said they may use this discretion outside of incorporated cities. This language implies the negative of the proposition, namely, that they shall not have discretion within incorporated cities. This language is exclusive. (Jack v. Village of Grangeville, 9 Idaho 291, 74 P. 969; People v. Goldman, 1 Idaho 714; Perkins v. Thornburgh, 10 Cal. 189; Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475; State v. Gilman, 33 W.Va. 146, 10 S.E. 283, 6 L. R. A. 847; 36 Cyc. 1122, and cases cited; 19 Cyc. 23, and cases cited.)

If it be contended that the use of the word "may" in sec. 1507 is a grant of discretionary power, then the office of the proviso, as contained in sec. 1508, is to limit, restrict or restrain the operation of what precedes it. (36 Cyc. 1161, 1162.)

And the word "may" should be construed to mean "must," in its operation, with reference to places outside of incorporated cities. (McCleod v. Scott, 21 Ore. 94, 29 P. 1, 26 P. 1061; Trainor v. County of Multnomah, 2 Ore. 214; Kohn v. Hinshaw, 17 Ore. 308, 20 P. 629; Smith v. King, 14 Ore. 10, 12 P. 8; case note State v. Henry, 87 Miss. 125, 40 So. 152, 5 L. R. A., N. S., 340.)

It would be absurd for the legislature to give a certain discretion or jurisdiction to two separate boards acting independently of each other, where the will of one may defeat the will of the other and nullify the whole legislative plan, or even a part of the plan.

The supreme court of West Virginia holds that the giving of discretion to the city board by the legislature is exclusive and divests the county board of discretion, although the latter board has jurisdiction of the subject under the constitution. (Wilson v. Ross, 40 W.Va. 278, 21 S.E. 868; Ward v. County Courts, 51 W.Va. 102, 41 S.E. 154; State v. Harden, 62 W.Va. 319, 58 S.E. 715, 60 S.E. 394; Kelley v. Bowman, 68 W.Va. 49-54, 69 S.E. 456.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from an order of the district court issuing a writ of mandate against the board of commissioners of Lemhi county, directing them to issue a liquor license to the plaintiff, William Anderson, authorizing him to sell intoxicating liquors within the corporate limits of Salmon City.

This appeal involves the question as to whether or not a board of county commissioners have the power or discretion, under sec 1508 of the Rev. Codes, to reject an application for a liquor license where the application is made for a license to sell intoxicating liquors within the boundaries of an incorporated city. The board of commissioners took the position that they had a right under the statute to exercise their judgment and discretion in the matter of issuing a liquor license, whether for the sale of intoxicating liquors within or without an incorporated city. The...