Mickelsen v. City of Rexburg

• Decision Date: 06 June 1980
• Docket Number: No. 12979,12979
• Citation: 612 P.2d 542,101 Idaho 305
• Parties: Darwin MICKELSEN, Plaintiff-Appellant, v. CITY OF REXBURG, Idaho, a Municipal Corporation, John Porter, Mayor, and Nile Boyle, Morgan Garner, Barton Jensen, Norman Holman, Warren Porter, and Darlene Blackburn, as Council of the City of Rexburg, Idaho, Defendants-Respondents, v. Allen BYINGTON, Stephanie Byington, Garrett E. Case, Gale J. Case, Earl J. Gardner, Joseph F. Rytting, Edna R. Rytting, Kenneth Wagoner, and Laura Wagoner, Intervenors-Respondents.
• Court: Idaho Supreme Court

Page 542

612 P.2d 542

101 Idaho 305

Darwin MICKELSEN, Plaintiff-Appellant, v.CITY OF REXBURG, Idaho, a Municipal Corporation, John Porter, Mayor, and Nile Boyle, Morgan Garner, Barton Jensen, Norman Holman, Warren Porter, and Darlene Blackburn, as Council of the City of Rexburg, Idaho, Defendants-Respondents, v.Allen BYINGTON, Stephanie Byington, Garrett E. Case, Gale J. Case, Earl J. Gardner, Joseph F. Rytting, Edna R. Rytting, Kenneth Wagoner, and Laura Wagoner, Intervenors-Respondents.

No. 12979.

Supreme Court of Idaho.

June 6, 1980.

Breck H. Barton of Rigby, Thatcher, Andrus, Barton & Walters, P.A., Rexburg, for plaintiff-appellant.J. D. Hancock, of Smith, Hancock & Moss, Rexburg, for defendants-respondentsCity of Rexburg and Rexburg City Council.

J. Kent Jolley, Rexburg, for respondents-intervenors.

McFADDEN, Justice.

Plaintiff-appellantDarwin Mickelsen applied to Defendant-respondent City of Rexburg, Idaho, for a license to sell draught, bottled or canned beer for on-premises consumption in Rexburg.After his application was denied, Mickelsen filed his petition for a writ of mandate with the district court to compel the council to issue the license.Trial was held, and Mickelsen's petition was denied.Mickelsen appeals from this denial.

On September 9, 1977, Mickelsen filed with the city of Rexburg an application for a building permit to construct a "Beer Building To be used for the sale of draught, bottled and canned beer for consumption on premises."The building was to be constructed on Mickelsen's property at 250W. Main in Rexburg, which was zoned "commercial."On October 27, 1977 the building permit was issued by the city "For the Construction Of: Commercial Bldg250 W. Main."Also on this day, Mickelsen applied to the city for a license to sell beer for consumption on the premises.No action was taken on the application until the November 1, 1977 regular meeting.

Mickelsen's property is at the outer edge of a commercial zone, and is adjoined on the west by residential property which was so zoned.The record indicates that considerable public sentiment existed in opposition to the issuance of the beer license.The opponents to the issuance of the license included the adjacent residential property-owners who are among the intervenor-respondents.At the regular meetings of the city council on November 1, and 17, 1977, the city council heard the statements of Mickelsen's attorney, of an attorney for the intervenors, and of opponents to the license.It then denied his application for a beer license.

Despite the denial of his application for a beer license, Mickelsen commenced construction on the premises, and incurred some $35,000 in financial liability in the process.

The city council's decision turned on the interaction of two of Rexburg's ordinances.In 1940 the council passed ordinance no. 341, the "Beer Licensing Ordinance."Three sections of no. 341 are pertinent to this case: § 5 states that no license for the retail sale of beer shall issue "if the place where the applicant proposes to carry on such business is not a suitable or orderly place."Section 13 reads in pertinent part as follows.

"No license shall be issued to any person to sell nor distribute draught beer, or bottled or canned beer to be consumed on the premises where sold or delivered, in any residential district, or section of said city chiefly occupied by residences.And any such licenses may be issued to retailers to sell or deliver such beer, in retail trade, only in that part of said city, hereinafter described and designated the business section . . . ."

Section 14 defines "business section," street by street, with particularity.Mickelsen's property was not listed as a part of the "business section."Section 14 categorizes the remainder of the city as "residential."

Twenty-eight years later, in 1968, the council enacted ordinance no. 478, entitled "The Zoning Chapter," which classified the entire city into seven zones.The property in question was there zoned "Commercial."The permitted uses in the commercial zone included "restaurants, cafes, bars, and clubs . . . ."Section 3 ofno. 478 reads:

"3.SCOPE.It is not intended by this chapter to repeal, abrogate, annul or in any way impair or interfere with existing provisions of other laws or ordinances, except those specifically repealed by this chapter . . . .Where this chapter imposes a greater restriction upon land . . . than is required by such . . . ordinance . . . the provisions of this chapter shall control."

After a two day trial which included an inspection by the court of the premises and surrounding area, the district court sitting without a jury found that the 1968 zoning ordinance did not repeal section 13 of the 1940 beer licensing ordinance; that Mickelsen's property is in an area of the city chiefly occupied by residences; that the council therefore had no ministerial duty to issue the beer license to Mickelsen, and did not abuse its discretion in refusing to do so.Mickelsen thereafter filed timely notice of appeal.

The 1940 beer licensing ordinance has as its primary function to set standards and requirements for the issuance of licenses to engage in the retail sale of beer.In performing this task, the ordinance divides the city into those areas in which the retail sale of beer is permitted, and those in which it is not.Because it is not primarily a zoning ordinance, it is understandable that these quasi-zoning provisions are less than a model of clarity.The ordinance makes three provisions, in fact, for the location of taverns.In section 5, it states that beer may not be sold in any location which is not "suitable."In section 13, the ordinance also includes as possible standards that beer may not be sold in any section of the city "chiefly occupied by residences," and finally that it may not be sold outside the "business section."Needless to say, these three standards may at times yield conflicting results.

The 1968 zoning ordinance stands in contrast to these amorphous provisions.By means of a detailed map of the city, it classifies all the land in the city into a variety of zones, and states very plainly that the zone into which Mickelsen's property falls, "commercial," is suitable for "bars, and clubs . . . ."

The two Rexburg ordinances, then, yield conflicting results on the question whether Mickelsen may operate a beer tavern on his property which was zoned "commercial."In holding that the 1968 ordinance controls, we rely on three well-settled propositions of law.

The first relies on the nature of the act in which Mickelsen seeks to engage.Citizens may not have an absolute right to sell beer.But Idaho statutes and case law establish a distinction between the sale of beer and the sale of liquor.Unlike the rather broad "local option" afforded local government in the case of liquor, the right to sell beer may not be denied by local government arbitrarily, and in fact local government may only place "reasonable" restrictions on the sale of beer.Barth v. De Coursey, 69 Idaho 469, 207 P.2d 1165(1949);I.C. § 23-1009.

Second, we have made it clear on numerous occasions that when two governmental promulgations are in irreconcilable conflict, the one enacted later in time governs.E.g., State Dept. of Parks v. Idaho Dept. of Water Admin., 96 Idaho 440, 530 P.2d 924(1974);Lloyd Corp. v. Bannock County, 53 Idaho 478, 25 P.2d 217(1933).

Thus to the extent of a conflict between the earlier and later statute with respect to the location of beer taverns, the more recent expression of legislative intent prevails.

Finally, it is also established that a specific statute will control over a general or vague statute when the two are in conflict.Christensen v. West, 92 Idaho 87, 437 P.2d 359(1968).The 1940 ordinance, as noted above, contains three potentially conflicting standards for deciding the propriety of a beer tavern's location.The 1968 ordinance by contrast is simple, clear and straightforward: "bars and clubs" are a suitable use for any property zoned "commercial."

We hold therefore that the 1968 ordinance, because of its more reasonable and comprehensive assessment of the proper location for beer taverns, because of its enactment later in time, and because of its more specific and precise nature, impliedly repeals the 1940 ordinance with respect to the determination of the proper location for beer taverns in the city of Rexburg.Paullus v. Liedkie, 92 Idaho 323, 442 P.2d 733(1968);Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419(1967);Golconda Lead Mines v. Neill, 82 Idaho 96, 350 P.2d 221(1960).

We reach this decision notwithstanding the 1968 ordinance's saving clause, cited above.This clause is itself extremely vague since it sets forth conflicting standards for determining repeal.Its first sentence states that repeal is determined only by consulting the list of specific prior ordinances mentioned in the 1968 ordinance's enacting clause.In other words, this sentence purports to restrict the ordinance's reach to express repeal.The second sentence, however, suggests that we look only to which of two conflicting provisions places the greater restriction on the use of land: at least when the 1968 ordinance is more restrictive than other ordinances, it controls.The ordinance contains no standard for resolving a conflict between these two sentences.

Should we choose to apply the second sentence we are also offered no guidance in defining "greater restriction upon land . . . ."The Rexburg City Council would assumedly argue that this restriction is to be measured against the specific limited proposals of an individual citizen: thus because Mickelsen could operate a tavern under the 1968 ordinance, but could not under the 1940 ordinance, the 1940 ordinance imposes a "greater restriction."On the other hand it is arguable that the concept of restriction should be given a more comprehensive reading.Under...