Fletcher v. Paige, 8973
| Decision Date | 24 July 1950 |
| Docket Number | No. 8973,8973 |
| Citation | 124 Mont. 114,19 A.L.R.2d 1108,220 P.2d 484 |
| Parties | , 19 A.L.R.2d 1108 FLETCHER v. PAIGE et al. |
| Court | Montana Supreme Court |
Arnold H. Olsen, Atty. Gen., Wesley W. Wertz, Charles V. Huppe, Sp. Asst. Attys. Gen., for appellants.
Mr. Wertz and Mr. Huppe argued the case orally for appellants.
Loble & Loble, Gene A. Picotte, Helena, for respondent.
Henry Loble, Helena, argued the case orally for respondent.
On December 23, 1949, the Montana liquor control board directed a letter to all Montana licensed brewers and beer wholesalers containing the following paragraph:
The board's letter quoted section 4-170, R.C.M.1947, and added 'advertising beer or malt liquor on a brewery kept by a brewer are exempt under that statute provided the board permits such advertisements.'
In this action the plaintiff is seeking a declaratory judgment as to the validity of the above order of the Montana liquor control board. The plaintiff filed his amended complaint on February 8, 1950, the defendant board answered, and the plaintiff replied. Thereafter both parties moved for a judgment on the pleadings. Judgment was rendered for the plaintiff and the defendant liquor control board has appealed from that judgment.
The State Liquor Control Act, sections 4-101 to 4-239, R.C.M.1947, and the Montana Beer Act, sections 4-301 to 4-356, R.C.M.1947, were companion measures originally enacted as Chapters 105 and 106, respectively, of the Laws of 1933. The Montana liquor control board administers both Acts. R.C.M.1947, secs. 4-107, 4-112, 4-113, 4,306, 4-307. These statutes are in pari materia and must be construed together, State v. Bowker, 63 Mont. 1, 7, 205 P. 961; State ex rel. Special Road District No. 8 v. Mellis, 81 Mont. 86, 92, 261 P. 885, and together with the amendments thereto are all one homogeneous and consistent body of law.
In section 2 of Chapter 105, Laws of 1933, the word 'liquor' was defined by subsection (i) as follows: "Liquor' or 'Liquors' means and includes any alcoholic, spirituous, vinous, fermented, malt or other liquor, which contains more than one per centum (1%) of alcohol by weight.'
'Beer' was defined in the companion Montana Beer Act by section 2 of Chapter 106, Laws of 1933, in subsection (b): "Beer' means any beverage obtained by alcoholic fermentation of an infusion or decoction of barley, malt and hops, or of any other similar products in drinkable water.'
Those statutes are now sections 4-102 and 4-302, R.C.M. 1947, respectively. So that even before the passage of Chapter 209, Laws of 1949, the definition of beer in section 4-302, R.C.M.1947, was applicable throughout the State Liquor Control Act and the Montana Beer Act whenever it occurred in either Act. R.C.M.1947, sec. 12-215.
Section 4-170, R.C.M.1947, enacted as section 65 of Chapter 105, Laws of 1933, is as follows:
'No person within the state shall * * *
In 1933, as we have seen, the term 'liquor' included all malt or other liquor and therefore included beer, so that in forbidding the advertising of liquor the legislature also forbade the advertising of beer. Further indicating the plain intention of the legislature to prohibit billboard advertising of beer is the express exception in the proviso: 'This subsection shall not apply to any advertisement respecting beer or malt liquor on a brewery or premises where beer or malt liquor may be lawfully stored or kept by a brewer under the law * * *'
Where a statute directs that a thing may be done in one manner it ordinarily implies that it shall not be done in any other manner. In providing that signs advertising beer or malt liquor can be placed upon a brewery or premises where beer or malt liquor was lawfully stored or kept, it logically follows that beer cannot be advertised by signboard or billboards in any other place. This is merely an application of the familiar maxim of expressio unius est exclusio alterius.
The question now is as to the effect of the amendment to section 4-102 by the 1949 legislative assembly. Subsection (i) was amended by the addition of the following exception: '(i) 'Liquor' or 'liquors' means and includes any alcoholic, spirituous, vinous, fermented, malt or other liquor, which contains more than one percent (1%) of alcohol by weight but shall not mean or include beer as that term is defined in the Montana beer act by subsection (b) of section 2815.11, Revised Codes of Montana, 1935 as amended by Chapter 30, laws of the twenty-fifth legislative assembly of Montana, 1937, and as permitted to be manufactured and/or sold or transported in and into this state or possessed therein in the manner and under the conditions prescribed in the 'Montana beer act."
Did the legislature by this amendment qualifying the definition of liquor, intend to permit the signboard or billboard advertising of beer on places other than breweries or premises where beer was stored?
If Chapter 209, Laws of 1949, has by implication permitted the signboard or billboard advertising of beer, then by implication the legislature has repealed the proviso in subsection (3) of section 4-170 that beer may be advertised on breweries or premises where beer may be stored. Otherwise section 4-170, while prohibiting signboard or billboard advertising of liquor, will permit signboard or billboard advertising of beer under all conditions, thus rendering meaningless the exception that the subsection shall not apply to advertising on breweries and storage places for beer.
'Every word, phrase, clause, or sentence employed is to be considered and none shall be held meaningless if it is possible to give effect to it.' Campbell v. City of Helena, 92 Mont. 366, 384, 16 P.2d 1, 4; Mid-Northern Oil Co. v. Walker, 65 Mont. 414, 428, 211 P. 353; In re Wilson's Estate, 102 Mont. 178, 193, 56 P.2d 733, 105 A.L.R. 367.
The general rule is that for a subsequent statute to repeal a former statute by implication, the previous statute must be wholly inconsistent and incompatible with it. United States v. 196 Buffalo Robes, 1 Mont. 489, approved in London Guarantly & Accident Co. v. Industrial Accident Board, 82 Mont. 304, 309, 266 P. 1103, 1105. The court in the latter case continued:
It will not be presumed that a subsequent enactment of the legislature intended to repeal former laws upon the subject, when such former laws were not mentioned. London Guaranty & Accident Co. v. Industrial Accident Board, supra.
We are admonished by statute, sec. 93-401-16, R.C.M.1947...
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