Boehl v. Sabre Jet Room, Inc.
| Decision Date | 02 February 1960 |
| Docket Number | No. 17,17 |
| Citation | 349 P.2d 585 |
| Parties | William BOEHL, Bill Ray, and Ernest Parsons, constituting the Alcoholic Beverage Control Board; Department of Revenue; John L. Rader, Attorney General; James Martin Fitzgerald, Commissioner of Public Safety; and Jack Davis, Executive Director of the Alcoholic Beverage Control Board, Appellants, v. SABRE JET ROOM, INC., Pruhs and Fivey, Inc., and Morry Shkolnik, Appellees. |
| Court | Alaska Supreme Court |
John L. Rader, Atty. Gen., for appellants.
Wendell P. Kay, Anchorage, and Warren A. Taylor, Fairbanks, for appellees.
Before NESBETT, C. J., and HODGE and DIMOND, JJ.
The legislature has given to the Alcoholic Beverage Control Board full power, authority and control to regulate the manufacture, barter, sale and possession of intoxicating liquors. The principal question to be determined is whether the statute furnishes adequate standards or criteria to support a closing hour regulation.
Alaska permits the sale of intoxicating liquors. 1 But there are conditions imposed. One must be licensed in order to engage in this business. The number of licenses is limited to a population ratio of one type of each license for each fifteen hundred population within a given five-mile radius. Requisites of filing, form and contents of applications for licenses are prescribed. Liquor may not be sold or given to minors or to intoxicated persons, and these classes are forbidden to be present on licensed premises. A liquor store or saloon may not be located within a prescribed distance from schools and churches. Violations of the act may result in license revocation or suspension. And there are other restrictions and limitations.
The act also creates an Alcoholic Beverage Control Board, consisting of three members appointed by the governor and confirmed by the legislature. With respect to the manufacture, barter, sale and possession of alcoholic beverages, the board is given 'full power, authority and control', and has the duty and authority to prescribe rules and regulations consistent with the act. 2
On September 30, 1959, following public hearings conducted under the Administrative Procedures Act, 3 the board adopted a series of twelve regulations. 4 One of them (No. 4070) prescribed standard closing hours for liquor establishments: between 3:00 a. m. and 8:00 a. m. on weekdays; from 4:00 a. m. to 2:00 p. m. on Sundays; and between 4:00 a. m. and 8:00 a. m. on holidays. In a suit for injunction and declaratory relief, appellees have challenged the validity of these regulations--in particular, that relating to closing hours. The court below agreed with appellees: on November 20, 1959, it entered a summary judgment in their favor, holding that all of the regulations were unlawful and invalid.
We hold that the lower court went too far. The affidavits in support of appellees' motions for a preliminary injunction and for summary judgment (which constitute the only evidence in the case) relate solely to alleged damage if the closing hour regulation is enforced. There is nothing in the record indicating that the other eleven regulations had any effect on the status of appellees or the conduct of their businesses. They did not, for example, confront appellees with the dilemma of either complying and thus giving up the chance to challenge, or not complying and risking criminal penalties. There was no substantial adverse effect, either present or imminent. Therefore, these regulations were not subject to challenge, and the sweep of the judgment was too broad. That is why, on the motion of appellants, this court granted a stay--the effect of which was to suspend the judgment and restore the board's ability to function during the pendency of the appeal. Thus, the judgment appealed from will be considered only so far as it relates to regulation No. 4070, prescribing standard closing hours for liquor dispensaries.
The basis of the district court's decision was that the act did not contain adequate standards to support the delegation of power to the board. With the exception of that part of the statute giving the board authority to issue, revoke, transfer or suspend all licenses 'in the best interests of the public', 5 it is true that the act contains no standards expressed as such. The board is not specifically directed, for example, to extend its regulatory power to the times of operation of liquor dispensaries. There is simply conferred upon it the broad generalized power to 'effectuate and carry out the purpose' of the act, 6 and that 'purpose' is to regulate and control alcoholic beverages. The question is whether anything more specific is required in order that the board's authority may be said to extend to the subject of closing hours, and in order that the delegation of power may be considered to be valid.
We hold that the regulation adopted was within the scope of the authority conferred. The board is 'vested with the duties, powers and responsibilities involved in the control of alcoholic beverages'; 7 its duty is to 'prescribe rules and regulations * * * governing the manufacture, barter, sale, and possession of intoxicating liquors'; 8 in this area it has 'full power, authority and control'; 9 it has been granted authority 'to promulgate necessary rules and regulations to effectuate and carry out the purpose' 10 of the statute; and such regulations 'have the full force and effect of law.' 10
The board's authority in this field is complete. It has everything needed to justify the regulation adopted. To hold otherwise would be to say that the language of the statute does not mean what it says.
The regulation and the law are not inconsistent. 11 The grant of power is so complete that there would be inconsistency only if the regulation bore no reasonable relation to the statutory objectives. That such a relation exists is obvious. Forbidding the sale of liquor for certain hours each day is directly associated with controlling or regulating its barter and sale.
It is unnecessary, therefore, to find in the statute express mention of the right to limit the hours of operation of liquor dispensaries.
The legislative power of the state 'is vested in a legislature.' 12 It is argued that because of this constitutional provision the power may not be delegated.
But such a strict theory of separation of powers ignores realities and the practical necessities of government. The United States Supreme Court has said that delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility, 13 and that necessity fixes a point beyond which it is unreasonable and impracticable to compel the legislature to prescribe detailed rules. 14
Nor does this theory find support in the constitution. There provision is made for creation by the legislature of regulatory agencies that are not under the supervision of the executive. 15 Such agencies would obviously have the function of exercising authority and control in places where the legislature has decided not to exercise all the authority and control itself. This would be a delegation of legislative power and the constitution provides for it.
The real question, then, is not whether there may be a delegation. Rather it is how far the legislature may go in delegating power to an agency charged with the duty of regulation in the field of intoxicating liquor.
Broad administrative control in this sphere of activity has been the rule in Alaska. In 1933 the Territorial Legislature created a Board of Liquor Control and imposed upon it the duties (1) of prescribing rules and regulations to govern the manufacture, barter, sale and possession of intoxicating liquors, (2) of prescribing the qualifications of those engaged in that business, and (3) of prescribing license fees and excise taxes. 16 This Board was given 'full power, authority and control' in this field until such time as the legislature might enact laws that would provide for and supersede the powers, duties and functions thus delegated to the Board. 17
Congress ratified and approved this legislation in 1934, stating that the Board 'shall have the powers and authority conferred upon it' by the 1933 statute. 18 In addition, Congress at the same time extended the legislative power of the Territory to include any legislation pertaining to the manufacture or sale of intoxicating liquors, and stated that the Alaska Legislature should have 'full power and authority to delegate the powers hereby conferred to any board or commission designated or created by the legislature for such purpose * * *' 19.
In 1937 a law was enacted 'to provide for the manufacture and sale of intoxicating liquors in the Territory of Alaska.' 20 In 1953 the legislature repealed the 1933 statute which had created the Board of Liquor Control and given it the powers that it had. 21 Then in 1957 the entire law was rewritten. A new Board of Liquor Control was created and was given the same broad powers and duties that were later conferred upon its successor, the present Alcoholic Beverage Control Board. 22 The 1957 Board exercised its regulatory powers by establishing uniform closing hours for liquor dispensaries in municipalities. Such a regulation was adopted on September 3, 1957, and then amended on December 22, 1958. When the existing board was established by the 1959 act, there were transferred to it 'the functions and authority heretofore performed and exercised by the Board of Liquor Control * * *' 23.
This, briefly, is the history of liquor control in Alaska since 1933. We refer to it in order to point out that the first state legislature in 1959 did not establish any novel concept in giving to a regulatory agency full authority to control and regulate traffic in alcoholic beverages. What was done by the present statute was simply a recognition and...
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State ex rel. Hart v. Parham
...McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745; State ex rel. Thornbury v. Gregory, 191 Wash. 70, 70 P.2d 788; Boehl v. Sabre Jet Room, Inc., Alaska, 349 P.2d 585. Therefore, the rule enacted by the Board is presumed to be valid and its reasonableness will be tested by a consideration of......