City of Lewiston v. Mathewson, 8419

Citation78 Idaho 347,303 P.2d 680
Decision Date13 November 1956
Docket NumberNo. 8419,8419
PartiesCITY OF LEWISTON, Plaintiff-Appellant, v. J. B. MATHEWSON, Defendant-Respondent.
CourtUnited States State Supreme Court of Idaho

James W. Givens, Lewiston, for appellant.

J. H. Felton, Wm. J. Jones, Lewiston, for respondent.

SMITH, Justice.

Respondent was charged in the police court of appellant City of Lewiston with the offense of engaging in the business of a junk dealer within the corporate limits of appellant City without first obtaining a license therefor, in violation of the City's ordinance No. 835 as amended, which now appears as Sections 2-701 and 2-702 of the Code of Ordinances of appellant City, reading as follows:

'The word 'junk' as used in this chapter shall include and mean any of the following articles or materials in an old or second hand condition, to-wit: Part or parts of worn out or abandoned motor vehicles, or other machinery, lead, metals, bottles, broken glass, rope, rags, rubber, paper, bags, bagging sacks, sacking, plumbing fixtures, iron, brass, copper, tin, and all odds and ends of every nature and description, whether included in or similar to any of the classes previously specified or not, parts of machinery, wire and such worn out or discarded materials and articles as can be turned to some use, but shall not be deemed to mean or include furniture, carpets or rugs.'

'The term 'junk' dealer as used in this chapter shall include every person who shall be occasionally, regularly, principally or incidentally engaged in buying, selling, keeping, dumping, disposing of or collecting 'junk' as defined by this chapter.'

'It shall be unlawful for any person to engage in the business of a junk dealer as defined in this chapter without first obtaining a license therefor.'

Respondent was convicted in the City's Police Court of the offense charged. He appealed to the distribut court from the judgment of conviction upon questions of both law and fact.

A jury trial resulted in a verdict of guilty. Respondent then made a motion in arrest of judgment, whereupon the trial court ruled that the ordinance was void for uncertainty, and ordered arrest of judgment and dismissal of the action. Appellant City perfected an appeal from such order.

Appellant's single assignment of error presents the question, whether the ordinance is void, upon which must depend the charge of the criminal complaint.

The validity of an ordinance under which a conviction is had may be challenged by a motion for arrest of judgment. I.C. §§ 19-1703, 19-2408, 19-2409, and 19-3928; 23 C.J.S., Criminal Law, § 1544, p. 1351; People v. McEntyre, 32 Cal.App.2d Supp. 752, 84 P.2d 560.

Rules for the construction of ordinances are the same as those applied to the construction of statutes. Jackman v. Hamersley, 72 Idaho 301, 240 P.2d 829.

There is always a presumption of the validity of an ordinance. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353; Boise City v. Better Homes, 72 Idaho 441, 243 P.2d 303.

A criminal statute must be sufficiently certain to show what the legislature intended to prohibit and punish; otherwise it is void for uncertainty. U. S. Constitution, 14th Amendment; Idaho Constitution, art. I, § 13; State v. Dingman, 37 Idaho 253, 219 P. 760; State v. Burns, 53 Idaho 418, 23 P.2d 731; State v. Casselman, 69 Idaho 237, 205 P.2d 1131; State v. Campbell, 70 Idaho 408, 219 P.2d 956; State v. Evans, 73 Idaho 50, 245 P.2d 788.

A statute should not be held void for uncertainty if any practical interpretation can be given it. Utah Power & Light Co. v. Pfost, D.C.Idaho, 52 F.2d 226; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105; State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761; State v. Groseclose, 67 Idaho 71, 171 P.2d 863.

Appellant's ordinance No. 835 requires determination of questions of fact based on the evidence of each case. The jury, in the case here, determined those questions of fact, i. e., that respondent was engaged in the business of a junk dealer, without having obtained the requisite license, and that articles and materials in which he dealt were junk.

An ordinance is not uncertain although it uses a term or expression that refers to a question of fact to be determined in each case as it arises. McQuillin, Municipal Corporations, 3rd Ed., Vol. 5, sec. 15.25, p. 115; State v. Omaechevviaria, supra; Mayor & Aldermen of Town of Jonesboro v. Kincheloe, 148 Tenn. 688, 257 S.W. 518; Patterson v. Town of Tracy City, 183 Tenn. 160, 191 S.W.2d 432; City of Chicago v. Reuter Bros. Iron Works, 398 Ill. 202, 75 N.E.2d 355; State v. Magaha, 182 Md. 122, 32 A.2d 477.

The construction of an ordinance is a question of law for determination by the court. Jackman v. Hamersley, supra.

Appellant's position is that the ordinance is not void for uncertainty since it fairly demonstrates the intention of appellant City to regulate within its corporate limits the business of a junk dealer.

Respondent contends that the definition of 'junk dealer' contained in the ordinance is so broad as to include every person who shall occasionally or incidentally engage in keeping, dumping, disposing of or collecting junk, and that in view thereof, every man, woman and child in appellant City are in literal violation of the ordinance; that therefore the ordinance is void since it is unreasonable, evidences an improper use of police power, and violates basic constitutional rights.

In defense of his position respondent points specifically to the following portion of the ordinance:

'The term 'junk' dealer as used in this chapter shall include every person who shall be occasionally, regularly, principally or incidentally engaged in buying, selling, keeping, dumping, disposing of or collecting 'junk' as defined by this chapter.' (Respondent's emphasis.)

However, such portion of the ordinance must be interpreted in conjunction with the portion thereof which declares it unlawful for any person to engage in the business of a junk dealer without first obtaining a license therefor. When so considered it becomes clear that appellant City intended to regulate the business of a junk dealer or, stated another way, to require persons to be licensed who deal in junk as a business.

The ordinance was never intended to be and is not, as respondent contends, 'so broad that every man, woman, and child is in violation of it' simply because, to be in violation of its provisions, the person first must deal in junk as a business. The acquisition and disposition of the kinds of materials or articles referred to in the ordinance by the man, woman or child for any purpose, other than the business of a junk dealer, is not in violation of the ordinance.

When the word 'business' is used in an ordinance or statute its meaning depends upon the context or upon the purpose of the legislature. Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 278, 73 L.Ed. 677; Herald v. Glendale Lodge No. 1289, B.P.O.E., 46 Cal.App. 325, 189 P. 329; Marsh v. Groner, 258 Pa. 473, 102 A. 127, L.R.A.1918F, 213; State ex rel. Benson v. Lakewood Cemetery, 197 Minn. 501, 267 N.W. 510; Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706; 12 C.J.S., Business, p. 762.

The concept of the term 'business' as used in the text of the ordinance implies an activity engaged in by a person with a direct profit objective, and we so construe its meaning, used in the commercial or trade sense.

Webster's New International Dictionary, 2nd Ed., defines 'business' as that which busies, engages time, labor as a principal concern or interest; a constant employment; regular occupation; work; any particular occupation or employment habitually engaged in for livelihood or gain. Mercantile transactions, buying and selling, traffic in general. A commercial or industrial establishment or enterprise. See also Black's Law Dictionary, 3rd Ed., and Bouvier's Law Dictionary, Rawle's Third Revision, p. 406.

We quote from 12 C.J.S., Business, pp. 765-766:

'When one speaks of 'business' the mind naturally contemplates a commercial or industrial establishment or enterprise.

'In this narrower sense, or commercial use, it has been held that the word applies only to that in which one engages for the purpose of livelihood, profit, or the like, and hence is applicable to any particular employment, occupation, or profession followed as a means of livelihood; that, as...

To continue reading

Request your trial
31 cases
  • White v. City of Twin Falls
    • United States
    • Idaho Supreme Court
    • 27 Abril 1959
    ...for the court. Continental Oil Co. v. City of Twin Falls, supra; Jackman v. Hamersley, 72 Idaho 301, 240 P.2d 829; City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680; and the rules of construction of ordinances are the same as those applied to the construction of statutes, Jackman v.......
  • State v. Bitt, 17722
    • United States
    • Idaho Supreme Court
    • 13 Septiembre 1990
    ...vagueness. The interpretation of an ordinance is a question of law, and we therefore exercise free review. City of Lewiston v. Mathewson, 78 Idaho 347, 351, 303 P.2d 680, 682 (1956) ("The construction of an ordinance is a question of law for determination by the court"). Part I of this opin......
  • State of Idaho v. Hodel, 84-4145
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 9 Abril 1987
    ...defined, words will be interpreted as taking their ordinary, contemporary, common meaning."); see also, e.g., City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680, 684 (1956). Since the term "public park" is subject to a host of various interpretations it is appropriate in this endeavo......
  • Cole-Collister Fire Protection Dist. v. City of Boise
    • United States
    • Idaho Supreme Court
    • 10 Marzo 1970
    ...as was presented by Cole-Collister in this case. White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778 (1959); City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680 (1956); Boise City v. Better Homes, Inc., 72 Idaho 441, 243 P.2d 303 (1952). Once the presumption of validity was overco......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT