Mix v. Board of Com'rs of Nez Perce County

• Decision Date: 30 November 1910
• Citation: 112 P. 215,18 Idaho 695
• Parties: CHARLES MIX, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF NEZ PERCE COUNTY, Respondent
• Court: Idaho Supreme Court

112 P. 215

18 Idaho 695

CHARLES MIX, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF NEZ PERCE COUNTY, Respondent

Supreme Court of Idaho

November 30, 1910

LOCAL OPTION LAW-CITY CHARTER-AMENDMENT OF-INTOXICATING LIQUORS - AUTHORITY TO REGULATE - CITY COUNCIL - CONSTITUTIONAL LAW-SPECIAL ACT-GENERAL LAW.

(Syllabus by the court.)

1. Under the provisions of the constitution, the special charter of the city of Lewiston may be amended by a special law enacted for that specific purpose, or by a general law which declares a state policy concerning police regulations or in regard to matters affecting the state at large.

2. Ordinances providing for the pavement of streets construction of sewers and levying assessments to pay therefor are matters of local concern, and the special charters of the cities of this state in regard to such local matters can be amended only by special law.

3. Boise City National Bank v. Boise City, 15 Idaho 792, 100 P 93, cited and distinguished.

4. Whenever the legislature enacts a general law declaring a state policy in regard to the prohibition of gambling or the regulation of the sale of intoxicating liquors, such law supersedes any special charter rights that cities within the state have been given in regard thereto.

5. In re Ridenbaugh, 5 Idaho 377, 49 P. 12, cited and approved.

6. Special charter cities cannot by ordinance make acts lawful that are made criminal by the general law of the state.

7. The law known as the local option law (Sess. Laws 1909, p. 9) held to be a general law declarative of the policy of the state in regard to traffic in intoxicating liquors.

8. A special law is one that applies only to a special locality or to an individual or to a number of individuals selected out of a class to which they belong.

9. A general law is one framed in general terms, restricted to no locality and operating upon all alike.

10 Sec. 7 of the local option law prohibits the board of county commissioners of any county where said law has been adopted from granting any person, firm, association, corporation or club a license to sell or dispose of intoxicating liquors within such county.

11. Under the provisions of sec. 63 of the special charter of the city of Lewiston, said city is prohibited from issuing a license authorizing anyone to do any act or engage in any business which is made unlawful by the general laws of the state.

12. The phrase "law of the land" as used in said section includes the general laws of the state.

13. The legislature by enacting the special charter of the city of Lewiston did not delegate to said city the authority to license persons to sell intoxicating liquors within such city contrary to the general law of the state.

14. When the general law prohibits or makes a certain business criminal, the city cannot make such business lawful by licensing it.

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Proceeding in the district court for a writ of mandate to the board of county commissioners to compel them to issue a license to petitioner authorizing him to engage in the business of retailing intoxicating liquors in the city of Lewiston. Writ denied and judgment of dismissal entered. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Chas. L. McDonald, and Eugene A. Cox, for Appellant.

If any specific question, which is not plainly and exclusively local, is deemed by the legislature to be a proper subject for the announcement of a state policy, by a general criminal law, universally applicable throughout the state, then such question is thereby withdrawn from the jurisdiction and control of the local governments, at least to the extent that they cannot nullify the state's policy, or promulgate a contrary rule, and the law declared by the legislature is the universal rule within the state, and supersedes all special acts and the regulations of the local authorities thereunder. (In re Ridenbaugh, 5 Idaho 371, 49 P. 12.)

On the other hand, where the legislature refuses to declare a universal policy for the whole state in regard thereto, or where the subject matter treated is one necessarily of local concern, and the legislature is merely formulating the agencies, instrumentalities and procedure by which the matter may be handled by the local authorities, then, in such case, the legislature by its own act classes the subject treated as one of local concern, and being a matter of local concern, the method of amending the charter by specific act is pointed out by the constitution, and constitutes a limitation upon the power of the legislature. (Boise City Nat. Bank v. Boise City, 15 Idaho 792, 100 P. 93.)

Under the 1907 charter the city was given complete power over the liquor traffic, and by the initiative and referendum clauses was created an independent local option district, and the first local option election in Idaho was held under the charter prior to the passage of the general local option law and prohibition was defeated. The general local option law contains no reference to the special charter, and the question therefore arises as to whether the later general act will repeal the earlier special law. (State ex rel. St. Paul Gas Light Co. v. McCardy, 62 Minn. 509, 64 N.W. 1133; Pierce County v. Spike, 19 Wash. 652, 54 P. 41; Seattle M. & Ry. Co. v. O'Meara, 4 Wash. 17, 29 P. 835; University of Utah v. Richards, 20 Utah 457, 59 P. 96; Atchison T. & S. F. R. Co. v. Haynes, 8 Okla. 576, 58 P. 738; People v. P. Imp. Co., 130 Cal. 442, 62 P. 739; Banks v. Yolo County, 104 Cal. 258, 37 P. 900; State v. Sturgess, 10 Ore. 58; In re Murdock, 149 Pa. 341, 24 A. 222; State v. Linquist, 77 Minn. 540, 80 N.W. 701; Territory v. Evans, 2 Idaho 651, 23 P. 232, 7 L. R. A. 646; Boise City National Bank v. Boise City, 15 Idaho 792, 100 P. 93.)

Art. 12, sec. 1 of the Idaho constitution was adopted from art. 11, sec. 6 of the California constitution of 1879, but in adopting this clause our constitutional convention struck out the phrases providing that the special charter cities should be subject to general laws, and modified our art. 11, sec. 2, and art. 3, sec. 19, which were also taken from the California constitution, thus leaving the special charter cities subject only to the operation of such general laws as must apply to them by necessary implication.

In Idaho the first cities were mining towns, remote from any central authority. They assumed of necessity large powers of self-government, and the legislature and people of the state came to regard this local independence as naturally right. In theory, through the medium of special acts, they were subject to almost unrestrained legislative power. In practice, no special charter has ever been amended in the history of the territory or state except at the request of the people living under it. From the earliest days these cities were clearly set apart as local independent governments. (Charter of 1863, art. 7, secs. 8 and 9; Washington Ter. Sess. Laws. Local and Private Laws, p. 51; Charter of 1881, chap. 2, sec. 26, Idaho Sess. Laws 1881, p. 390; Charter of 1903, sec. 57, Sess. Laws 1903, p. 126; Charter of 1907, sec. 233, Sess. Laws 1907.)

The constitution perpetuated the relations already established. The charter cities were exempted from general laws and the medium of amendment by special laws was preserved. This court has held that the legislature cannot even supplement the charters by general laws relating to local government. (Boise City National Bank v. Boise City, supra.)

The local option law is merely a statute general in form but dealing with matters adjudged by the legislature at the present time to be local. There is no express power in the constitution to enact laws like the local option law. It clearly belongs to that large class of legislation based upon principles of local self-government, to which class also belong laws like the Herd District Law, Irrigation District and Road District Laws, Rural High School Laws and laws relating to cities, precincts, or other local governments. (Cooley's Con. Lim., 7th ed., pp. 65, 173, 174, 243, 263, 264; Freund, Police Power, sec. 217, p. 205; Feek v. Township Board, 82 Mich. 393, 47 N.W. 37, 10 L. R. A. 69; State v. Noyes, 30 N.H. 279-292.)

The power of the legislature to amend the charter of Lewiston by special act is an express constitutional power. The power of the legislature to supersede the charter powers by a general state law is implied.

Where a question is adjudged by the legislature to be local, no state policy is involved, and necessarily no implication of the legislative power to amend the city charter arises.

If the legislature can deprive the city of Lewiston of its charter power to license the sale of intoxicating liquors by a local option law, it can, in like manner, deprive the city of its charter power to prevent animals from running at large by a county herd district law, or abolish the city's police by a system of county police, as was done at one time in New York and Philadelphia, or deprive the city of its control of its streets by a county good roads district law, and thus the legislature may be permitted by indirection, and, perhaps, even without intent, to accomplish what is expressly forbidden by the constitution.

It may be contended that the local option law expresses a policy of the state to submit this matter to the counties for determination. The decision to submit it at all involves a previous determination that it is a local question. It is also a question with which the special charter cities are expressly empowered to deal. There can, therefore, be no state policy of encroachment upon these local charter powers. The state may constitutionally...