Gartland v. Talbott

• Decision Date: 20 November 1951
• Docket Number: No. 7804,7804
• Parties: GARTLAND v. TALBOTT et al.
• Court: Idaho Supreme Court

Page 1067

237 P.2d 1067

72 Idaho 125

GARTLAND v. TALBOTT et al.

No. 7804.

Supreme Court of Idaho.

Nov. 20, 1951.

Wynne M. Blake, Pros. Atty., Lewiston, for appellants.

Paul C. Keeton, Lewiston, for respondent.

TAYLOR, Justice.

On the 12th day of October, 1949, the defendants (appellants), acting as the Board of County Commissioners of Nez Perce County, passed and adopted the resolution following, to-wit:

'The resolution of September 14, 1949, appearing on Page 465 of Book R, which ordered that no further licenses for beer parlors in the Lewiston Orchards be issued, is hereby amended by resolution made this date as follows:

'Whereas the area known as the Lewiston Orchards in Nez Perce County, Idaho, (the same being a dedicated area, but not incorporated) is becoming thickly populated within a small territory, and there are numerous applications for beer parlors pending or about to be presented to the Board; and,

'Whereas, it is deemed not to be to the best interest of the county, and that it would not be for the good of the community of said Lewiston Orchards if further licenses for the sale of beer to be consumed on the premises in said Lewiston Orchards were granted, and that it would be detrimental to the public welfare if further licenses for the sale of beer to be consumed upon the premises in said Lewiston Orchards were granted;

'Now Therefore, Be It Resolved And Ordained that the number of licenses for the sale of beer to be consumed on the premises within the area of the Lewiston Orchards be limited to two (2) and that no additional licenses be granted in such area.

'Be It Further Resolved That Nothing herein contained shall prohibit the granting of a license for the sale at retail in containers of beer where the same is not consumed upon the premises.

'Oct. 12, 1949.

Page 473.'

The plaintiff (respondent) on January 9, 1951, made application to the defendants for a license to sell at retail bottled and draft beer at the intersection of 5th Street and Preston Avenue in the community of Lewiston Orchards. On January 10, 1951, the defendants rejected the plaintiff's application upon the grounds set out in the foregoing resolution. Two licenses for the sale of beer, to be consumed upon the premises, within the area of Lewiston Orchards had been previously granted and were in effect.

Upon the trial it was shown that Lewiston Orchards is a residential area immediately adjacent to and south of the city of Lewiston; that it is a platted area with established boundaries, but not incorporated; it embraces 3,509 acres of land and has a population estimated at 5,000; that 5th Street, upon which plaintiff proposed to operate his tavern business, is a continuation of one of the main thoroughfares from the city of Lewiston extending into and through the Lewiston Orchards. There was testimony that some other business establishments were located, or had been located, on the corners at the intersection of 5th Street at Preston Avenue, namely, a grocery store, fountain, two service stations, barber shop, cafe, and radio shop. The plaintiff testified that the area at the intersection was a business district and that Lewiston Orchards was a rural area. However, he also testified that both sides of 5th Street and both sides of Preston Avenue as they extend away from the intersection and beyond the business establishments mentioned are occupied by residences. All other witnesses who testified on the subject described Lewiston Orchards as a residential area.

Plaintiff objected to the proof offered to establish the character of the area as residential, on the ground that his application was rejected for the reason that the Lewiston Orchards 'is becoming thickly populated within a small territory', and not upon the ground that it is a residential district. In support of this objection, plaintiff cites Barth v. De Coursey, 69 Idaho 469, 207 P.2d 1165, where it is held that the commissioners, having based their refusal of the license solely upon the ground of the resolution, cannot thereafter assign some other ground therefor. In that case the 'other ground' referred to was a personal disqualification of the applicant, which was not assigned by the commissioners as a ground for refusal at the time the application was denied. Here, the reason given, that it 'is becoming thickly populated within a small territory', is not inconsistent with the proof of a residential area. While the two characteristics may not be synonymous, both may refer to the same territory. Ordinarily proof of a residential area would also be proof of a thickly populated area.

The trial court concluded that the resolution is prohibitory and discriminatory and, as such, invalid and void; and that plaintiff is entitled to the issuance of the license applied for, and entered judgment accordingly.

It is not questioned that the applicant possesses all of the qualifications and none of the disqualifications prescribed by the state beer law, Section 23-1010, I.C. The issues here concern the application of the following provisions of the law:

'* * * If the applications conform hereto the municipality, county and commissioner, respectively, shall each issue a retailer's license to the applicant, subject to the restrictions and upon the conditions in this act specified, and, as to the municipal license, in the ordinance aforesaid.' § 23-1009, I.C.

'* * * Provided, however, 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.' § 23-1014, I.C.

'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; * * *.' § 23-1015, I.C.

Also, to be considered is § 2 of Art. 12 of the State Constitution, which is a direct grant of police power to the counties and municipalities of the state, subject to the limitation that such power shall not be exercised in conflict with 'the general laws'. Under this provision the counties and cities of this state are not limited to police powers granted by the legislature, but may make and enforce, within their respective limits, all such police regulations as are not in conflict with the general law. Hence the statutes are to be looked to for limitations upon the police power of the municipalities rather than as grants of such power. State v. Musser, 67 Idaho 214, 176 P.2d 199; Clyde Hess Distributing Company v. Bonneville County, 69 Idaho 505, 210 P.2d 798; Rowe v. City of Pocatello, 70 Idaho 343, 218 P.2d 695.

Applying this constitutional limitation on police power of the county, this court has held that the county may not prohibit or refuse to license the sale of beer in view of the quoted provision in § 23-1009, to the effect that the applicant having complied, the county 'shall' issue the license. That is, a county ordinance having the effect of prohibiting the sale of beer would conflict with the statute, which provides that beer may be sold throughout the state and that a license therefor shall issue to a qualified applicant. Barth v. De Coursey, supra. The ultimate question, therefore, is as to whether the ordinance adopted by the county board is in effect prohibitory. Does it prohibit that which the legislature has expressly sanctioned? A restriction imposed by the county which merely goes further and adds limitations to those contained in the statute, is not necessarily in conflict with the statute. Clyde Hess Distributing Co. v. Bonneville County, supra. If such restrictions are not unreasonably discriminatory, and reasonably tend to promote some object within the police power of the county, and are not so restrictive as to operate prohibitively, they will be upheld as within the...