Chas. L. Joy & Co., Ltdd. v. Carlson
| Decision Date | 27 January 1916 |
| Citation | 154 P. 640,28 Idaho 455 |
| Parties | CHAS. L. JOY & CO., LTD., a Corporation, Plaintiff, v. AUGUST CARLSON et al., Defendants |
| Court | Idaho Supreme Court |
REPEAL OF REGULATION STATUTE BY PROHIBITION LAW-STATUTORY CONSTRUCTION-SALE OF PURE ALCOHOL BY DRUGGIST.
1. Sec 1510, Rev. Codes, providing that "All persons selling spirituous, malt or fermented liquors or wines in any quantity, not to be drank in, on or about the premises where sold, shall pay a license of two hundred dollars per year," which was originally enacted in 1899 as an amendment to an act entitled "An act to regulate the sale of intoxicating liquors," is repealed by chapter 28 of the Laws of 1915, p. 83, and therefore has no application to the sale of pure alcohol as provided by chapter 11, Laws 1915, p. 41.
2. Held, that under the provisions of chapter 11, Laws 1915, p 41, druggists employing licensed pharmacists as required by law may import and sell pure alcohol for mechanical scientific and medicinal purposes by procuring a permit for the importation thereof from the probate court of the county where the pure alcohol is to be used, and by limiting the sale to purchasers who have obtained a permit therefor from said probate court, and said druggists are not required to pay a license tax as provided in sec. 1510, Rev. Codes.
[As to evidence as to license to sell liquor, see note in Ann.Cas 1913C, 626]
Original proceeding in this court for a writ of prohibition prohibiting the county commissioners of Ada county from requiring a drug company employing licensed pharmacists to pay to the county a license tax of $ 200, as provided in sec. 1510, Rev. Codes. Peremptory writ of prohibition granted.
Peremptory writ issued. Costs awarded to plaintiff.
Oppenheim & Hodgin and Jay M. Parrish, for Plaintiff.
The license required under sec. 1510 was for the sale of intoxicating liquors, which were defined in sec. 1527 in the exact language that was later used in another act and construed by our supreme court in State v. Osmers, 21 Idaho 18, 120 P. 165, not to include alcohol.
Raymond L. Givens and E. P. Barnes, for Defendant.
Counsel in his brief relies upon the fact that this statute is in a chapter that is for the purpose of regulating the sale of intoxicating liquor. This license is not a regulatory one, but is for the purpose of raising revenue, and even though it is in this chapter, if it is not in direct conflict with the later prohibition acts and can be reconciled with them, it must be continued in force. (State v. Forch, 26 Idaho 755, 146 P. 110.)
--This is an original application to this court for a writ of prohibition to restrain the county commissioners, sheriff and prosecuting attorney of Ada county from demanding and collecting from plaintiff the sum of $ 200, license tax, to authorize the sale by plaintiff of pure alcohol for mechanical, scientific or medicinal purposes.
It is alleged in the affidavit that the defendants, August Carlson, William Howell and Mans H. Coffin, as the duly elected, qualified and acting county commissioners of Ada county, at the January meeting of the board of county commissioners, beginning on the 10th day of January, 1916, proceeding without authority of law and in excess of the jurisdiction of the said board of county commissioners, gave notice of their intention of requiring and compelling, and did notify the sheriff and prosecuting attorney of the said Ada county, to require and demand of plaintiff the sum of $ 200 license tax before the said plaintiff would be allowed to sell, on a proper permit from the probate court, pure alcohol for mechanical, scientific or medicinal purposes; that affiant is informed and believes, and therefore alleges the fact to be, that the defendants demanded the payment of said license tax from plaintiff under and by virtue of the terms and provisions of sec. 1510, Rev. Codes.
Affiant further alleges that plaintiff is regularly engaged in the retail drug business at Boise City, Ada county, state of Idaho, and has on hand a quantity of pure alcohol which plaintiff desires and will sell to any person lawfully authorized to purchase the same, and holding a proper permit from a probate court of the state of Idaho. Affiant alleges that plaintiff has not paid said license tax of $ 200, or any other license tax, to the state of Idaho or to Ada county, but plaintiff employs a licensed pharmacist, under the laws of the state of Idaho, in each of its several places of business in said county.
The alternative writ of prohibition was issued and upon return day thereof the defendants filed their demurrer and answer, wherein they allege that plaintiff's affidavit on application for writ of prohibition does not state facts sufficient to constitute a cause of action.
The question for determination in this case is whether or not the plaintiff, a drug company employing licensed pharmacists as required by law, and engaged, among other things, in the sale of pure alcohol for mechanical, scientific and medicinal purposes in Ada county, is required to pay to said county a license tax of $ 200 before said plaintiff is allowed to sell, on proper permit from the probate court, pure alcohol for scientific, mechanical or medicinal purposes.
Counsel for plaintiff urge that the license tax should not be paid, because, first, sec. 1510, Rev. Codes, upon which defendants rely for their authority in collecting said tax, is null and void, and is no longer in force and effect and has been repealed in toto by chap. 11, Sess. L. 1915, p. 41, and by chap. 28, Sess. L. 1915, p. 83; second, that if said sec. 1510 is still in force, plaintiff is exempted from its provisions by the terms of sec. 1521, Rev. Codes.
Upon an examination of sec. 1510, Rev. Codes, which is as follows: we find that said section was originally enacted in 1899 as an amendment to sec. 23 of an act entitled "An act to regulate the sale of intoxicating liquors," Sess. L. 1890-91, p. 33, and was re-enacted in 1901 as "An act to regulate liquor licenses," as an amendment to sec. 23 of the act of 1899 (Sess. L. 1899, p. 21).
Sec. 1527, which was included within the original act as sec. 21, defines the words "intoxicating liquors" as used in said act to include "spirituous, vinous, malt and fermented liquors, and all mixtures and preparations thereof, including bitters that may be used as a beverage and produce intoxication."
This court had under consideration the term "intoxicating liquors" as defined in this act, in construing sec. 31 of Senate Bill No. 62, Sess. L. 1909, p. 9, in the case of State v. Osmers, 21 Idaho 18, 120 P. 165. The court in that case, at page 25 of the opinion, discusses at length the uses of pure alcohol and says that within the meaning of that act ...
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Meade v. Freeman
...also stated he was relying upon the cases of In re Crane, 27 Idaho 671, 151 P. 1006, L.R.A.1918A, 942 (1915); Chas. L. Joy & Co. v. Carlson, 28 Idaho 455, 154 P. 640 (1916); and State v. Frederic, 28 Idaho 709, 155 P. 977 (1916). The compiler and publisher of the 1918 Compiled Laws did not ......