Bordenelli v. United States, 14534.

• Decision Date: 04 April 1956
• Docket Number: No. 14534.,14534.
• Citation: 233 F.2d 120
• Parties: Tony BORDENELLI and Eyvohn Bordenelli, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

233 F.2d 120 (1956)

Tony BORDENELLI and Eyvohn Bordenelli, Appellants, v. UNITED STATES of America, Appellee.

No. 14534.

United States Court of Appeals Ninth Circuit.

April 4, 1956.

Wilson & Wilson, T. Stanton Wilson, Anchorage, Alaska, for appellants.

William T. Plummer, U. S. Atty., Lynn W. Kirkland, Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before STEPHENS, ORR and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

This is an appeal from an order of a District Judge of the Territory of Alaska refusing to permit further operation of beverage dispensary or retail liquor establishment by licensees.

The history of the transaction is quite confusing.

On March 13, 1953, the Bordenellis filed an application for an "L. B. & W. license" under File No. 3750. On May 27, the Bordenellis moved to withdraw the first petition without prejudice of the right to make another application, which motion was granted June 16, 1953. On June 29, a supplemental petition was filed, upon which a judge of the Territory issued a license upon July 21. On September 5, 1953, an order to show cause why the license should not be revoked was issued to the Bordenellis by a third judge. The grounds of the revocation were:

"(1) No application was on file, the original having been denied and withdrawn.

"(2) No hearing upon any application was set.

"(3) The protestants were not notified.

"(4) The Court failed to consider any application before granting the license.

"(5) The Court failed to consider the protests on file.

"(6) The census and list of process consenting to the issuance of the license failed to comply with the law which became effective June 30."

On October 12, 1953, that judge revoked the license, and subsequently, on December 4, 1953, denied a motion to reopen the matter.

The Bordenellis applied for renewal of license for 1954. Upon hearing, an order was issued on December 31, 1953, directing the clerk to issue a license. The license was issued the same day. The Bordenellis were ordered to show cause why this latter license should not be cancelled. A hearing was had before a fourth judge and an order was entered July 27, 1954, vacating the license for 1954. This appeal is from the latter order.

The last judge stated the question as follows:

"Are the applicants entitled to a renewal of their liquor license for the year 1954 as contemplated by Section 35-4-15 of the 1949 Compiled Laws of the Territory of Alaska as amended by Chapter 116 of the 1953 Session Laws of the Territory of Alaska, after the 1953 license was once issued and then later revoked?"

The difficulty arises from the fact that Chapter 116 of the 1953 Session Laws of the Territory of Alaska amends A.C.L.A. § 35-4-15, to provide that no such license shall issue for sale of intoxicating liquor within a quarter of a mile from any school ground or church building located outside the limits of an incorporated municipality. Under the former statute, a dispensary was only required to be two hundred feet away. It is admitted that the licensed premises were within a quarter of a mile from a school outside an incorporated municipality. However, the amending statute also provided:

"A license may be reissued for the sale of intoxicating liquor in any building in which such sale was authorized by law at a time subsequent to March 23, 1949."

The judge who heard the application for cancellation held that the previous license issued July 21, 1953, and revoked October 12, 1953, did not legally authorize sale of liquor in the premises in question and that therefore the purported "reissue" or "renewal" on December 31, 1953, was annulled.

The United States Attorney has moved to dismiss the appeal. The grounds of this motion are that the order of October 12, 1953, which revoked the license, was the only final order in this case, and, since it was not appealed from, the Court has no jurisdiction. There is, of course, ground for this argument. The renewal of that license could not be accomplished if the license itself had been utterly destroyed by revocation of October, 1953. The license for 1954 would have been void and the judge could have expunged the order granting the renewal as void. Furthermore, there may be other bases on which to sustain the motion. However, we do not immediately decide either of these points.

Congress has been empowered by the federal Constitution to "make all needful Rules and Regulations respecting the Territory * * * belonging to the United States."¹ Therefore, it was competent for Congress to define the jurisdiction of any courts so created in a territory or to empower the territorial legislature to define such jurisdiction.² But, of course, if Congress did delegate such authority to the territorial legislature, it was incumbent upon that body to stay strictly within the limits of the power granted. Unless, therefore, an express and specific direction to the legislature of Alaska can be pointed out whereby Congress permitted that body to burden courts or judges with administrative duties, the power did not exist, and any attempt to do so would be void. Congress only gave to the territorial legislature permission to regulate the liquor traffic in a specified manner. This legislature, therefore, has, in burdening the District Courts and the judges thereof with the responsibility in the first instance of granting, refusing or revoking liquor license, violated the letter of the Alaskan Organic Act and the clear intent of Congress.

In 1934, Congress enacted legislation which marks the extent of the power of the territorial legislature to regulate and control liquor traffic as follows:

"No spirituous or intoxicating liquors shall be manufactured or sold in the Territory of Alaska except under such regulations and restrictions as the Territorial Legislature shall prescribe, and the Legislative power and authority conferred upon the Legislative Assembly of the Territory of Alaska"

by the acts organizing the territory and general legislation relating to the structure and powers of the government of the area

"* * * shall be, and is, extended to include any legislation pertaining to the manufacture or sale of spirituous or intoxicating liquors within the said territory, and any provision contained in the said sections, in conflict herewith, is expressly repealed: Provided, however, That the Legislature of the Territory of Alaska shall have full power and authority to delegate the powers conferred to any board or commission designated or created by the legislature for such purpose, which powers shall include the powers to make rules and regulations governing the manufacture, barter, sale, or possession of spirituous or intoxicating liquors in the Territory * * * to prescribe the qualifications of those who are to engage in the manufacture, barter, sale * * and to prescribe license fees and excise taxes therefor * * *." 48 U. S.C.A. § 292.

On the same day, Congress adopted another section, which reads:

"The act of the Territorial Legislature of Alaska entitled `An Act to create the board of liquor control and prescribe its powers and duties\', approved May 4, 1933, contained in the Session Laws of Alaska, 1933, being chapter 109 thereof, at pages 193-194, be, and the same is, ratified and approved, and the board thereby created shall have the powers and the authority conferred upon it by the said act. And any person, firm, or corporation, who shall violate any of the rules or regulations prescribed by the said board governing the manufacture, sale, barter, and possession of intoxicating liquors in the Territory of Alaska, or the qualifications of those engaging in the manufacture, sale, barter, and possession of such liquors in the said Territory, or the payment of license fees and excise taxes therefor, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in section 2072 of the Compiled Laws of Alaska." 48 U.S.C.A. § 293.

These positive enactments should be construed in the light of 48 U.S.C.A. § 91, which states that nothing in other sections of the Organic Act

"shall be so construed as to prevent the courts of Alaska from enforcing within their respective jurisdictions all laws passed by the legislature within the power conferred upon it, the same as if such laws were passed by Congress, nor to prevent the legislature passing laws imposing additional duties, not inconsistent with the present duties of their respective offices, upon the governor, marshals, deputy marshals, clerks of the district courts, and United States commissioners acting as justices of the peace, judges of probate courts, recorders, and coroners, and providing the necessary expenses of performing such duties."

The language of the above section makes a clear dichotomy between judicial duties and administrative duties. The judicial duties are specifically stated to be given to the court, but the legislature was given no power to impose additional duty, not judicial, upon the courts or the judges. The statute specifies that such additional duties, not judicial, may be imposed only upon certain officers...