Barth v. De Coursey, 7529

• Decision Date: 06 July 1949
• Docket Number: 7529
• Citation: 69 Idaho 469,207 P.2d 1165
• Parties: BARTH v. DE COURSEY et al
• Court: Idaho Supreme Court

207 P.2d 1165

69 Idaho 469

BARTH v. DE COURSEY et al

No. 7529

Supreme Court of Idaho

July 6, 1949

Original application by Bernard W. Barth against T. M. DeCoursey and others, constituting and as the board of county commissioners for Canyon County for mandamus to compel issuance of a county license to sell beer.

Peremptory writ of mandate granted.

Frank F. Kibler, Nampa, Ariel L. Crowley, Boise, for plaintiff and petitioner.

Where a county or municipal corporation is specifically given legislative authority and power to regulate and license the liquor traffic (bottled beer in this case), the power to prohibit such traffic altogether is impliedly withheld, and not included in the grant of legislative power and authority to issue licenses. 30 Am.Jur. 367, par. 216; Green v Alcorn County, 192 Miss. 468, 6 So.2d 130, 1942.

A refusal to grant, a retail beer, or other license, becomes arbitrary, where by the device of a resolution, the refusal to license is solely based thereon, and to the exclusion of the entire subject matter to be licensed. The exercise of control by regulation intends that control be exercised by reasonable rules and regulations, and not by caprice or whim. In the case at bar the resolution is the sole reason assigned, after consideration, as a reason for denial of the license. Being fearful of future law violations is not sufficient, where the power of revocation is expressly retained at all times. State ex rel. Hoffman v. Town of Clendening, 93 W.Va. 618, 115 S.E. 583, 585, 29 A.L.R 37; State ex rel. and to use of Oetker v. Johnson, Mo.App. 211 S.W. 682.

William W. Wander, Pros. Atty., and R. L. Riordan, Deputy Pros. Atty., Caldwell, for defendants and respondents.

Robert E. Smylie, Atty. Gen., and Don J. McClenahan and J. N Leggat, Assts., Boise, as amici curiae.

After the decision of this Court in State v. Robbins, 59 Idaho 279, 81 P.2d 1078, the legislature clearly authorized the county to require that a county beer license be obtained and to strengthen the hand of regulation, authorized the county to impose "such conditions and terms as may be required" on the issuance of such a license. Laws 1939, c. 242, Sec. 1; c. 246, Sec. 2, 3; and see Laws 1939, c. 262, sec. 2.

Having the discretionary power to refuse to grant the license, as long as the refusal is not arbitrary, capricious or unreasonable, it necessarily follows that reasonable regulations are in furtherance of the exercise of this obvious power of regulation. The right to refuse to issue a license upon reasonable grounds is inherent in the power to regulate. Village of St. Anthony v. Brandon, 10 Idaho 205, 77 P. 322 (1904); Anderson v. City of St. Paul, 226 Minn. 186, 32 N.W.2d 538 (1948); Van De Vegt v. Board of Commissioners of Larimer County, 98 Colo. 161, 55 P.2d 703 (1936); Cf. McCarten v. Sanderson, 111 Mont. 407, 109 P.2d 1108, 132 A.L.R. 1229 (1941). See also Anderson v. Board of County Commissioners, 22 Idaho 190, 125 P. 188 (1912); Darby v. Pence, 17 Idaho 697, 107 P. 484, 27 L.R.A.,N.S., 1194 (1910).

Porter, Justice. Holden, C. J., concurs. Koelsch, Dist. J., concurs in conclusion. Taylor, Justice, concurring specially. Givens, Justice, dissenting.

OPINION

Porter, Justice.

Plaintiff owns a recreation area on the north side of Snake River in Canyon County near Walter's Ferry Bridge on the road from Melba to Murphy. On February 4, 1949, he filed application with the Board of County Commissioners of Canyon County for a license to sell beer thereat. His application was on forms furnished by the County. It appeared on the face of the application that the applicant possessed all the qualifications and none of the disqualifications, prescribed by state law, of a licensee.

Plaintiff's application for a license was refused on the sole ground that the Commissioners would not issue a license for the sale of beer on any premises outside the incorporated limits of any city or village as provided in a resolution ^[1] theretofore passed by the Board of County Commissioners. Plaintiff seeks by mandamus herein to compel the issuance of license to him on the ground that such resolution conflicts with state law, is an unauthorized prohibition and not a permissible term or condition under Section 23-1015, I.C.

The decisive question in this case is aptly stated on page 4 of plaintiff's reply brief as follows:

"May the Board of County Commissioners entirely prohibit the sale of beer at retail within the County, unless the retail establishment be located within the boundaries of a city or village within said County?"

Chapter 132 of the 1935 Session Laws was the basic enactment of the beer law. Such chapter, as amended, is now Chapter 10, Title 23, I.C. By said Chapter 10, it is made lawful to sell beer in the manner and under the conditions prescribed therein. It provides for the issuance of county, municipal and state licenses. It sets forth the qualifications and disqualifications of applicants for licenses. It prescribes many regulations relative to the conduct of the business of selling beer.

Section 23-1014, I.C., a part of the 1935 act, provides:

"* * * that nothing in this act shall be so construed as to prohibit or prevent municipalities or counties fom licensing and regulating places of business where beer is sold to the consumer."

Section 23-1009, I.C., was added by Chapter 167, Session Laws of 1943. It provides that applications for retailers' licenses shall be made first to the municipality or county or both, as the case may be, and then to the commissioner, and the applications must show that the applicant possesses all of the qualifications and none of the disqualifications of a retailer licensee under the act, and, as to the municipal license, under any ordinance of the municipality The section then provides:

"If the applications conform hereto the municipality, county and commissioner, respectively, shall each issue a retailer's license to the applicant, subject to the restrictions and upon the conditions in this act specified, and, as to the municipal license, in the ordinance aforesaid." (Emphasis supplied.)

The 1947 Session Laws, Chapter 192, added Section 23-1015, I.C., which provides in part as follows:

"It shall be unlawful for any retailer to sell beer without first procuring a retailer's license from the county, said license to be issued on such conditions and terms as may be required by the board of county commissioners in the county wherein such place of sale of beer is located; * * *." Section 23-1011, I.C. provides that the issuer of a retailer's license may revoke the same for violation of the provisions of the beer law.

The foregoing statutes negative the thought that a county may prohibit the sale of beer therein by arbitrarily refusing to grant licenses for its sale. By the use of the word "shall" in Section 23-1009, I.C., it is made the duty of the county to grant a license to a duly qualified applicant upon such terms and conditions as the county may require.

The phrase "conditions and terms" as used in Section 23-1015, I.C., refers to provisions which must be accepted or complied with by the applicant before the license is issued. The phrase "regulating places of business" used in Section 23-1014, I.C., refers to provisions which must be complied with in the conduct of the business after a license has been issued. Both phrases refer to and are for the purpose of providing for the regulation of the business of selling beer. It does not appear that Canyon County has prescribed any "conditions and terms" other than the resolution in question.

It is the general rule that where authority to license and regulate a business is granted by the legislature to a municipality, the regulations adopted must not be unreasonable, unjust or unduly oppressive. 33 C.J. pp. 522-524; 48 C.J.S., Intoxicating Liquors, 850. Nor must such regulations be such as to be prohibitory. 30 Am.Jur. p. 367, par. 216, states the rule as follows:

"As a general rule, when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit that traffic altogether is impliedly withheld. Under such a grant of authority, a municipality cannot prohibit traffic in intoxicating liquor either directly or indirectly by imposing prohibitive license fees or other regulations which are prohibitive in character. It cannot, in other words, effect prohibition, under the appearance of regulation, whereby those engaged in the business are harassed by arbitrary, oppressive, and unreasonable restrictions."

In O'Connor et al. v. City of Moscow, 69 Idaho 37, 202 P.2d 401, on page 405, the court said:

"This court in Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, at page 106, 286 P. 353, at page 358, has said that where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then an ordinance passed in pursuance thereof must be a reasonable exercise of the power, or will be pronounced invalid; that in determining the question of the reasonableness or unreasonableness of such an ordinance, all the existing circumstances or contemporaneous conditions, the object sought to be obtained, and the necessity or lack thereof for its adoption, will be considered by the court; that whether or not an ordinance is reasonable is a question of law for the Court." See also State v. Gregory, 191 Wash. 70, 70 P.2d 788; City of Fairfield v. Pappas, 362 Ill. 80, 199 N.E. 292; Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34.

In the case at bar the resolution of Canyon County to the effect that it will not issue a license for the sale of beer outside of incorporated cities and villages amounts to prohibition...