I.A. West & Co. v. Board of Com'rs of County of Latah

• Citation: 14 Idaho 353,94 P. 445
• Court: United States State Supreme Court of Idaho
• Decision Date: 26 February 1908
• Parties: I. A. WEST & CO. et al., Plaintiffs, v. THE BOARD OF COMMISSIONERS OF THE COUNTY OF LATAH. STATE OF IDAHO, a Municipal Corporation, Defendant

94 P. 445

14 Idaho 353

I. A. WEST & CO. et al., Plaintiffs, v. THE BOARD OF COMMISSIONERS OF THE COUNTY OF LATAH. STATE OF IDAHO, a Municipal Corporation, Defendant

Supreme Court of Idaho

February 26, 1908

LIQUOR LICENSE-AUTHORITY TO ISSUE-DISCRETIONARY POWER OF THE BOARD OF COUNTY COMMISSIONERS-AMENDMENT OF STATUTES.

1. Sec 2 of the act of March 4, 1901 (Laws of 1901, p. 13), having been added to and made a part of the act of February 6, 1891 as amended February 2, 1899, becomes a part of said act, and in the absence of authority to be found in said added section to issue such license, the law of 1891 as amended February 2 1899, vesting such authority in the board of county commissioners, will govern.

2. Where the power to issue a license for the sale of intoxicating liquors, not to be drank in, on or about the premises where sold, is vested in the board of county commissioners and they are granted discretionary powers in the issuing of said license, and authorized to refuse such license upon their own motion, or upon objections duly filed upon the part of any citizen or resident of the precinct within which it is intended to carry on such sale when in their judgment the granting of such license will not be conducive to the best interest of the community in which such saloon or business is proposed to be established, their action in refusing to grant a license to such applicant cannot be interfered with or controlled by a mandate from this court.

3. Where the title to an act provides for amending another act and adding thereto a section, and the body of the act provides for the amendment but makes no addition of the section, the omission does not render such amendatory act unconstitutional or void.

4. An amended section of an act takes the place of the original section in the act amended, and the failure of the legislature in amending the same section of the original act a second time, to specifically refer to it as having been amended by the first amendatory act, does not affect the validity or constitutionality of the second amendment of the amended section.

(Syllabus by the court.)

An original proceeding in this court for a writ of mandate to compel the board of county commissioners of Latah county to issue a license to the applicant to sell intoxicating liquors not to be drank in, on or about the premises where sold. Demurrer to the petition. Demurrer sustained and case dismissed.

Demurrer to the petition sustained and cause dismissed. Costs awarded to the defendant.

Stewart S. Denning, for Appellants.

The amendments to the law were simply to secs, 2, 3, 6 and 4 of the act of 1891. They are related to one subject and are restrictive in their nature. (Gerding v. Commissioners, 13 Idaho 444, 90 P. 357; Mullen & Co. v. Moseley, 13 Idaho 457, 121 Am. St. Rep. 277, 90 P. 986.)

Wm. E. Stillinger, for Defendant, files no brief.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an original application in this court for a writ of mandate, against the board of commissioners of the county of Latah. The petitioners allege, in substance, that they are partners, for the purpose of carrying on the liquor business, dealing in liquor, not to be drank in, on or about the premises where sold, in the town of Onaway, in the state of Idaho; that, on January 14, 1908, at a regular meeting of the board of county commissioners of Latah county, the petitioners herein presented to said board their application for a liquor license to sell intoxicating liquors in the village of Onaway, Latah county, for the period of one year, said liquor not to be drank in, on or about the premises where sold; that said petition was signed by the applicants and accompanied by a good and sufficient bond in the sum of $ 1,000, and by receipt of J. J. Keane, sheriff of Latah county, in the sum of $ 201, which was the amount of money paid by the plaintiffs to the sheriff of Latah county for the purpose of obtaining a license; that on the said 14th day of January, the plaintiffs were refused a license by said board, and are still refused the same; that the petitioners are beneficially interested, and have no plain, speedy or adequate remedy at law; that on January 18, 1908, an application was made to Hon. E. C. Steele, judge of the second judicial district of the state of Idaho, in which district said Latah county is situated, for a writ of mandate compelling said defendants to issue to plaintiffs herein a license as herein prayed for, which application was denied by said judge; that, in denying said license, the action of said board of commissioners was illegal and without authority of law.

To this petition the defendant filed a demurrer upon the ground that the same did not state facts sufficient to constitute a cause of action. There is also filed in this case and used on the hearing, a stipulation, which, among other things recites, "that the said board of county commissioners, upon their own motion, made and entered an order rejecting the said application for license, setting forth as their reason, that the granting of said license would not be conducive to the best interests of the community in which said saloon or business is proposed to be established."

It will thus be seen that there is but one question presented in this case, and that is, whether or not the board of commissioners in refusing liquor license is vested with discretionary power, or whether or not they can be compelled by a writ of mandate to act in any particular way, upon an application for a liquor license.

The law of this state in relation to granting a license to sell intoxicating liquors is in a very unsatisfactory condition, especially with reference to a license to sell liquor not to be drank on the premises where sold. But the power now vested by law in the board of county commissioners, to grant or refuse a license, we think is plain and decisive. The first act of the legislature of this state dealing with the subject of granting a license to sell intoxicating liquors by the board of county commissioners was approved February 6, 1891, and makes it unlawful for any person to sell spirituous, malt or fermented liquors or wines to be drank on, in or about the premises where sold, without procuring a license and giving a bond.

Sec. 2 of this act requires application to be made to the board of county commissioners, and provides that they shall grant a license upon giving the bond required by the act and paying the fee provided by the act to the sheriff of said county.

This act expressly repealed sec. 1648, Rev. Stat., which authorized the tax collector to issue a license to persons desiring to sell intoxicating liquors in less quantities than one quart.

On March 9, 1895, the legislature passed an act purporting to amend sec. 4 of the act of February 6, 1891, but which, in fact, made no change whatever in said section, and also adding thereto what was designated as sec. 23, providing for issuing a license to persons selling liquors not to be drank in, on or about the premises where sold. This added section, however, said nothing whatever as to whom the money should be paid for the license, whether a bond shall be required, or by whom said license should be issued.

On February 2, 1899, the legislature passed another act which is practically a re-enactment of the act of March 9, 1895. On March 4, 1901, the legislature passed an act amending sec. 4 of the act of February 6, 1891, as amended on March 2, 1899. The only change was in relation to amount of the license fee, and the period for which the same might be issued. The act also purports to amend sec. 23 of the act of February 2, 1899. This is the section in relation to procuring a license to sell liquors not to be drank in, on or about the premises where sold. This amendment alters the section enacted in 1899, and provides that the license shall be granted for a period not less than one year, instead of not less than three months. It will thus be seen by these various acts that the only body authorized to grant a license is the board of county commissioners.

Sec 23, as found in the acts of 1895, 1899 and 1901, in relation to issuing a license for the sale of intoxicating liquors not to be drank in, on or about the premises where sold, says nothing whatever as to the proceedings required to secure such license, or by whom such license shall be issued. But, inasmuch as no provision is made for issuing a license for the sale of intoxicating liquors, except by the board of county commissioners, it was evidently the intention of the legislature after sec. 1648 had been repealed by the act of 1891, and a law was passed at that session in relation to granting license for the sale of intoxicating liquors, to vest in the board of county commissioners the exclusive authority to grant licenses for the sale of intoxicating liquors. We are forced to this conclusion for the following reasons: First, because the section in relation to a license for the sale of intoxicating liquor not to be drank in, on or about the premises where sold is added to and made a part of the act dealing with the subject of granting a license for the sale of intoxicating liquors to be drank on the premises where sold. Second, that if this be not so, the section in relation to a license for the sale of intoxicating liquors not to be drank in, on or about the premises where sold would leave the issuing of such license without anyone having authority to issue the same. Unless the board of county commissioners had authority to issue the license, then no one had, and unless the license fee was payable to the sheriff as provided in the section in relation to a retail license, then the person to whom such...