In re Application of Speer

• Decision Date: 17 June 1933
• Docket Number: 6022
• Citation: 53 Idaho 293,23 P.2d 239
• Parties: In the Matter of the Application of J. HOWARD SPEER for Writ of Habeas Corpus
• Court: Idaho Supreme Court

23 P.2d 239

53 Idaho 293

In the Matter of the Application of J. HOWARD SPEER for Writ of Habeas Corpus

No. 6022

Supreme Court of Idaho

June 17, 1933

INTOXICATING LIQUORS, DEFINITION OF-PROHIBITION OF SALE-POLICE POWER-COURTS-STATUTORY INTERPRETATION.

1. Malt liquor held "intoxicating liquor" within statutory definition, regardless of alcoholic content or lack thereof (I. C. A., secs. 18-101, 18-102).

2. Court having interpreted statute is without power to change interpretation where long period has expired since interpretation without amendment; change of law as interpreted being legislative function (Const., art. 2).

3. Statute prohibiting sale of nonintoxicating malt liquors, in aid of effort to prohibit sale of intoxicating liquors, held valid exercise of state's police power (I. C. A., secs 18-101, 18-102, 18-201).

APPLICATION for Writ of Habeas Corpus. Writ issued and quashed.

Writ of habeas corpus quashed.

Chapman & Chapman, for Petitioner.

The language of section 18-102 is clear and unambiguous, which together with the titles and body of the various prohibitory acts, enacted, re-enacted and continued in force, discloses that it was the intent of the legislature to prohibit only such liquors as are fit for use as beverages and capable of producing intoxication. The court must give to it the clear and unambiguous meaning expressed therein. (Village of Oakley v. Wilson, 50 Idaho 334, 296 P. 185; State v Jutila, 34 Idaho 595, 202 P. 566; State v Armstrong, 38 Idaho 493, 225 P. 491, 33 A. L. R. 835; State v. Malcom, 39 Idaho 185, 226 P. 1083.)

The decision of this court in In re Lockman, 18 Idaho 465, 110 P. 253, 46 L. R. A., N. S., 759, presumes and reads into sec. 18-102 a legislative intent not indicated by the language of the statute itself, or the titles and contents of the several prohibitory acts by which it has been enacted, re-enacted and continued in force. In that decision the court exceeded its authority by imparting an intent not supported by any act or language of the legislature, and by expunging therefrom a portion of the plain legislative intent. ( Wabash R. Co. v. United States, 178 F. 5, 11, 12, 101 C. C. A. 133, 21 Ann. Cas. 819; Marks v. State, 159 Ala. 71, 48 So. 864, 133 Am. St. 20; Taylor v. State, 17 Ala. App. 579, 88 So. 205; Henderson v. State, 94 Tex. Cr. 97, 250 S.W. 688; 33 C. J. 495.)

The construction placed upon sec. 18-102, I. C. A., by the Lockman case causes that statute to include within its terms nonintoxicating liquors and beverages and is an unreasonable and unwarranted exercise of the police power of the state, not having relation to either public health, public morals or public safety. (In re Crane, 27 Idaho 671, 151 P. 1006, Ann. Cas. 1918A, 942; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; United States v. Standard Brewery, Inc., 251 U.S. 210, 40 S.Ct. 139, 64 L.Ed. 229.)

Henry M. Hall, for Respondent.

There is no doubt but what the state has the right under the Constitution to absolutely prohibit the sale of alcoholic liquor to be used for beverage purposes. And under the statute the state has the police power to prescribe, regulate and promote health, peace, morals and good order of the people. (In re Hinkle, 33 Idaho 605, 610, 196 P. 1035.)

Near beer is a malt liquor as defined by the courts of Idaho and is declared as a matter of law to be intoxicating liquor and cannot be sold within a prohibition district. (In re Lockman, 18 Idaho 465, 110 P. 253, 46 L. R. A., N. S., 759.)

R. M. McCracken and Harry S. Kessler, as Amici Curiae.

The construction given in In re Lockman, supra, on August 3, 1910, has ever since that date, and for over twenty-three years, been followed by the trial courts of the state. Eleven years after the Lockman case was decided this court again approved the same construction in the case of State v. Petrogalli, 34 Idaho 232, 200 P. 119, and except for the present case this construction has not been questioned during the intervening years.

A construction judicially placed upon a statute must be considered the settled law of the state, where for many years the legislature has not seen fit to change the statute so construed. (Luitze v. State of Wisconsin, 204 Wis. 78, 234 N.W. 382, 74 A. L. R. 1202; 7 R. C. L. 1000, sec. 29 et seq., and cases cited in R. C. L. Perm. Supp., pp. 2112, 2113, and R. C. L. Pocket File Courts, secs. 29, 30; 15 C. J. 916, sec. 304, and case in note 90.)

It is a familiar rule of law that where a statute has for a long time been given a fixed, definite meaning, courts will not change the same except for the most compelling reasons, although a different construction might have been adopted to avoid a hardship were it a question of first instance. (Healy v. Taylor, 37 Idaho 749, 751, 218 P. 190.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, as Amici Curiae.

The supreme court is a court of original jurisdiction in matters of habeas corpus, and upon such application it cannot exercise the jurisdiction of an appellate court or for such purpose convert itself into an appellate court for the examination of question reviewable upon appeal. (In re Knudtson, 10 Idaho 676, 79 P. 641.)

Errors in preliminary examination are subject to review on appeal. ( In re Knudtson, supra, and cases cited.)

Habeas corpus is not a supervisory or corrective remedy and is not intended to subserve the functions of an appeal or writ of error. (See numerous authorities compiled 4 Bancroft's Code Practice, 4287.)

Maurice H. Greene, as Amicus Curiae.

It is the universal rule of courts that existing statutes are nullified, in so far as future operations are concerned, by a contrary and subsequent constitutional amendment. The Constitution, as the highest and most recent expression of the law-making power, operates to repeal not only all statutes that are expressly enumerated as repealed, but also all that are inconsistent with the full operation of its provisions. (State v. Moore, 36 Idaho 565, 585, 212 P. 349; 12 C. J., 725, 726, and cases cited; State v. Schluer, 59 Ore. 18, 115 P. 1057; Gherna v. State, 16 Ariz. 344, 146 P. 495, Ann. Cas. 1916D, 94.)

MORGAN, J. Givens and Wernette, JJ., concur, BUDGE, C. J., Concurring Specially. HOLDEN, J., Dissenting.

OPINION

MORGAN, J.

April 7, 1933, J. Howard Speer, petitioner, was, by a justice of the peace in and for Jerome precinct, Jerome county, on preliminary examination, held to answer in district court to the charge of having sold, on said date in said county, two bottles of liquor, commonly called near beer, for beverage purposes. He was remanded to the custody of the sheriff, and has procured to be issued from this court a writ of habeas corpus for the purpose of having the legality of his detention in custody determined. A transcript of the evidence taken by the committing magistrate is before us and shows petitioner sold the liquor, as charged, and it is stipulated, by his counsel and the prosecuting attorney, that it is a malt liquor, not intoxicating in fact and not capable of producing intoxication. The question presented is as to whether selling such liquor, in Idaho, is a crime.

Idaho Code Annotated, secs. 18-101 and 18-102, are as follows:

18-101. "The manufacture, disposal and transportation of intoxicating liquors for beverage purposes are prohibited in the state of Idaho."

18-102. "The words 'intoxicating liquors' as used in this title shall be deemed and construed to include spirituous, vinous, malt and fermented liquors, and all mixtures and preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication."

Sections 18-201 and 18-216 make unlawful the sale of intoxicating liquor, except as by statute provided, and sec. 18-220 fixes the penalty at a fine of not less than $ 100 nor more than $ 1,000 and imprisonment not less than 60 days nor more than a year.

The definition of the words "intoxicating liquors" found in sec. 18-102 was enacted by the legislature in 1909 as sec. 31 of what was known as the "local option" law, and has been carried into the various codifications of, and still remains a part of, the statutory law of Idaho.

This question came before this court in 1910, in Re Lockman, 18 Idaho 465, 110 P. 253, 46 L. R. A., N. S., 759. In that case Justice Ailshie carefully analyzed the definition of the term "intoxicating liquors" and said:

"We conclude, therefore, that section 31 of the local option law defining 'intoxicating liquors' contains two divisions or classes of liquors or beverages: First, 'spirituous, vinous, malt and fermented liquors' which are declared as a matter of law to be intoxicating, and for which no proof is required except to show that they come within the enumeration; and second, all other mixtures and preparations thereof which will in fact produce intoxication. In the latter case the state must prove that the liquor is such that it may be used as a beverage and produce intoxication." (See, also, State v. Petrogalli, 34 Idaho 232, 200 P. 119.)

As controlling the construction which should be given to our statute defining intoxicating liquors, counsel for petitioner cite United States v. Standard Brewery, 251 U.S. 210, 40 S.Ct. 139, 64 L.Ed. 229, wherein the "War Prohibition Act of Congress" was construed, and quote therefrom as follows:

"'That after June thirtieth, nineteen hundred and nineteen, until the conclusion of the present war, and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, for the purpose of conserving the man power of the nation, and to increase efficiency in the production of arms munitions, ships,...