Clyde Hess Distributing Co. v. Bonneville County, 7432
| Decision Date | 22 October 1949 |
| Docket Number | 7432 |
| Citation | 69 Idaho 505,210 P.2d 798 |
| Parties | CLYDE HESS DISTRIBUTING CO. et al. v. BONNEVILLE COUNTY et al |
| Court | Idaho Supreme Court |
Action by the Clyde Hess Distributing Company and others against Bonneville County and others for a declaratory judgment declaring void county regulation of hours for sale of beer. The District Court, Ninth Judicial District, Bonneville County, C. J. Taylor, J., held that the county regulation of hours for sale of beer was void and the defendants appealed.
The Supreme Court, Porter, J., held that the regulation in question was a valid and subsisting regulation which board of county commissioners had right to make and enforce so far as territory embraced in county was concerned, exclusive of municipalities, and that such regulation was without force and effect within the limits of incorporated municipalities and reversed the judgment of the trial court in so far as it decreed the regulation in question to be void in the county exclusive of municipalities, and affirmed the judgment in so far as it decreed the regulation void within limits of incorporated municipalities.
John A. Ferebauer, Idaho Falls, for appellants.
The regulations adopted by the commissioners apply to incorporated cities within the county. People v Velarde, 45 Cal.App. 520, 188 P. 59, 61; Ex parte Knight, 55 Cal.App. 511, 203 P. 777, 779; Black, Intoxicating Liquor, Section 226; Territory v. Webster, 5 Dak. 351, 40 N.W. 535; Ex parte Walter, 65 Cal. 269, 3 P. 894; Ex parte Mansfield, 106 Cal. 400, 39 P. 775; Los Angeles County v. Eikenberry, 131 Cal. 461, 63 P. 766, 767; Licks v. State, 42 Miss. 316; Mix v. Board of County Commissioners, 18 Idaho 695, 708, 112 P. 215, 32 L.R.A.,N.S., 534; Anderson v. Lemhi County, 22 Idaho 190, 125 P. 188; State v. Robbins, 59 Idaho 279, 81 P.2d 1078; 1947 Session Laws, Chap. 192.
Additional county beer regulations are not in conflict with those of the state merely because the county regulations are in addition to the state regulations. State v. Musser, 67 Idaho 214, 176 P.2d 199; Mann v. Scott, 180 Cal. 550, 182 P. 281; People v. Commons, 64 Cal.App.2d Supp. 925, 148 P.2d 724; Salt Lake City v. Kusse, 97 Utah 113, 93 P.2d 671.
Errol H. Hillman, Idaho Falls, for respondents.
The right to exercise the police power of the State in local police, sanitary and other regulations has not been granted to counties and municipalities by the constitution without limitation, but such right is limited to such regulations as are not in conflict with the general law. Constitution, Article 12, Section 2; State v. Robbins, 59 Idaho 279, 286, 81 P.2d 1078; City of Twin Falls v. Harlan, 27 Idaho 769 779, 151 P. 1191.
Ordinances which assume, directly or indirectly, to permit acts which the state prohibits, or to prohibit acts permitted by the State, are uniformly declared to be null and void. Ray v. City and County of Denver, 109 Colo. 74, 121 P.2d 886, 887, 890, 138 A.L.R. 1485; Ex parte Farley, 65 Tex.Cr.R. 405, 144 S.W. 530, 531; State v. Carran, 133 Ohio 50, 11 N.E.2d 245, 246-247; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519; National Amusement Company v. Johnson, 270 Mich. 613, 259 N.W. 342, 343.
The Legislature has never regarded a county as the appropriate unit for the exercise of delegated police power. State v. Robbins, 59 Idaho 279, 285, 81 P.2d 1078; Ex parte Knight, 55 Cal.App. 511, 203 P. 777, 778.
Robert E. Smylie, Atty. Gen., John A. Carver, Jr., Asst. Atty. Gen., Don J. McClenahan, Asst. Atty. Gen., amici curiae.
The Legislature has not necessarily authorized the sale of beer at all hours during which the sale is not expressly prohibited by state law. Reading the statute as a whole, all provisions for local licensing and control show or tend to show that the State Legislature fixed only outside limits. Laws 1943, c. 167, sec. 5; Anderson v. Board of County Commissioners, 22 Idaho 190, 125 P. 188; cf. State v. Robbins, 59 Idaho 279, 81 P.2d 1078, and the proviso of Laws 1939, Chap. 246, sec. 2 (sec. 7).
On July 7, 1947, the board of county commissioners of Bonneville County made and entered an order entitled "Regulations for the Sale of Beer." The first paragraph of such regulations reads as follows:
Thereafter, respondents commenced this action seeking a declaratory judgment determining their rights and declaring said paragraph I of such regulations to be invalid. They further prayed that it be declared and determined that the duly licensed retailers of beer are lawfully entitled to sell, offer for sale, or give away beer, and the same may be consumed, during all hours of every day, except between the hours of one o'clock a. m. and seven o'clock a. m. It appears from the amended complaint that each of the respondents is a holder of a wholesaler's beer license or retailer's beer license for the sale of beer in Bonneville County.
Appellants interposed a general demurrer to the amended complaint which was duly presented to the trial court and overruled and time given the appellants to answer. Thereafter, judgment by default was entered against the appellants for failure to answer. By such judgment it was adjudged and decreed that said paragraph I of the regulations in question is void and unenforceable; and that all duly licensed retailers of beer in the State of Idaho may sell, offer for sale, or give away beer during all hours of every day except between the hours of one o'clock a. m. and seven o'clock a. m. From such declaratory judgment the appellants have duly appealed to this court.
It is not claimed by respondents that paragraph I of such regulations is invalid because the same is unreasonable, oppressive, discriminatory or prohibitory. Respondents assert that such regulation is invalid because it is in conflict with the general law as it prohibits acts permitted by the State.
The general law provides for the sale of beer by licensees. There is no express statute authorizing the sale of beer during any prescribed hours. Section 23-1012, I.C., prohibits the sale of beer during certain hours. Such section reads as follows: "It shall be unlawful and a misdemeanor for any person in any place licensed to sell beer or where beer is sold or dispensed to be consumed on the premises, whether conducted for pleasure or profit, to sell or permit to be consumed on the premises beer as the same is defined by law, between the hours of one o'clock A.M. and seven o'clock A.M."
The right of a licensee to sell beer is further limited by the provisions of Sections 23-1014, I.C., and 23-1015, I.C. Section 23-1014, I.C., provides: "* * * that nothing in this act shall be so construed as to prohibit or prevent municipalities or counties from licensing and regulating places of business where beer is sold to the consumer."
Section 23-1015, I.C., provides: "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; * * *."
Thus, it appears that the legislature by Section 23-1012, I.C., has not occupied and did not intend to occupy the whole field of hours of sale of beer, thereby making any regulation by the county necessarily inconsistent with the general law. Ex-parte Iverson, 199 Cal. 582, 250 P. 681.
Both Section 23-1012, I.C., and the regulation in question are prohibitory in terms. The regulation merely goes further than the statute and prescribes additional hours during which sale of beer is prohibited. Am.Jur. 37, page 790, states the applicable rule under such circumstances as follows: "Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective."
See Quillin v. Colquhoun, 42 Idaho 522, 247 P. 740; Clark v. Alloway, 67 Idaho 32, 170 P.2d 425; State v. Musser, 67 Idaho 214, 176 P.2d 199; State v. Brunello, 67 Idaho 242, 176 P.2d 212; Mann v. Scott, 180 Cal. 550, 182 P. 281; Ex parte Iverson, supra. We conclude that the regulation in question is not in conflict with the state law in so far as it extends the hours during which beer may not be sold.
It is urged by respondents that such regulation is void upon the ground that a county has no power to prescribe police regulations effective within a municipality. Article 12, Section 2 of the Idaho Constitution is as follows: "Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws."
It appears to be conceded that in the exercise of the powers granted by such constitutional...
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