Pleasant Grove City v. Lindsay

• Decision Date: 11 April 1912
• Docket Number: 2316
• Court: Utah Supreme Court
• Parties: PLEASANT GROVE CITY v. LINDSAY

125 P. 389

41 Utah 154

PLEASANT GROVE CITY v. LINDSAY

No. 2316

Supreme Court of Utah

April 11, 1912

On application for rehearing June 10, 1912.

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Joseph Lindsay was convicted of selling intoxicating liquors in violation of city ordinances, and he appeals.

REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.

M. E Wilson for appellant.

A. E Moreton for respondent.

FRICK, C. J. McCARTY and STRAUP, JJ., concur. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

Appellant, on the 13th day of April, 1911, was charged with having violated the provisions of a certain ordinance of Pleasant Grove City, Utah County, Utah, passed and in force after October 4, 1909. In the complaint it is charged that the offense was committed on April 3, 1911, and, upon a trial in the justice court in and for said city, appellant was convicted and sentenced under said ordinance. He appealed to the district court of Utah County, where he was again convicted and sentenced.

The ordinance in question, so far as material here, reads as follows:

"It shall be unlawful for any person to manufacture, sell, give away, barter, deal out, or otherwise dispose of any malt, spirituous, vinous, fermented or other intoxicating liquors within the limits of Pleasant Grove City. Any person who shall violate any of the provisions of this ordinance . . . upon conviction thereof shall be punished by a fine of not less than fifty nor more than one hundred dollars, or by imprisonment in the city jail for no more than one hundred days or by both fine and imprisonment."

The district court in effect instructed the jury that said ordinance was valid and in full force and effect. Appellant excepted to said charge and appeals to this court upon the sole ground that said ordinance, at the time of the trial in the district court, was not a valid and enforceable ordinance. The invalidity of the ordinance is urged upon various grounds, but, for reasons unnecessary to be stated, we shall consider only one ground, namely, that, when this case was tried in the district court, said ordinance had been repealed by chapter 106, page 152, Laws of Utah, 1911, which went into effect May 9, 1911, and has been in effect throughout this state ever since. Chapter 106 aforesaid is a very comprehensive and most sweeping regulation of the manufacture, sale, barter, giving away, or otherwise dealing in or disposing of intoxicating liquors within the State of Utah. The act authorizes that the traffic may be licensed in the cities and incorporated towns of this state until the qualified electors thereof, as provided in the act, shall direct otherwise; and, in all other places outside of the cities and towns aforesaid, the traffic in intoxicating liquors is absolutely prohibited unless the qualified electors shall authorize the traffic under the terms and conditions imposed by the act. Every city and incorporated town, and every county district outside of any city or town, is, for the purpose of holding elections under the act, made a voting unit within which a majority of the qualified electors voting at any election may determine the status of such city, town, or county district with regard to whether liquors shall be sold therein or not. The act provides for search and seizure, and also provides in what manner and by what courts or tribunals licenses shall be issued, and fixes the qualifications of the persons to whom they may be granted. It also provides the penalties for violations of any of the provisions of the act, and expressly provides that, in all cases upon a second conviction, the penalty must be increased, and certain other consequences must also be imposed by the court wherein conviction is had. The validity of chapter 106 is not assailed nor questioned, and, for the purposes of this decision, we shall assume that the ordinance in question was duly passed and published as required by law. The only questions that we shall consider, therefore, are: (1) Was chapter 106 in force and effect when appellant was tried and convicted in the district court; and (2) if so, did said chapter by implication repeal the ordinance in question?

Section 25 of article 6 of the Constitution of this state, so far as material here, provides:

"All acts shall be officially published, and no act shall take effect until so published, nor until sixty days after the adjournment of the session at which it was passed."

The Secretary of State certifies under his hand and the great seal of the State of Utah that chapter 106 was officially published on April 26, 1911, and that the session of the legislature at which the act was passed adjourned without date on March 9, 1911. Under the constitutional provision, the act, therefore, went into effect, unless otherwise provided therein, sixty days after March 9, 1911. By referring to the act itself, it is disclosed that all other provisions with regard to the regulation of the liquor traffic passed prior thereto and in force in this state are expressly repealed thereby. Nor is there any saving clause in the act whatever with regard to pending actions, or that prosecutions may be continued and penalties imposed except as in the act provided.

All that is found in the act in that regard is found in section 68 thereof, which reads:

"Nothing in this act contained shall prevent or prohibit any city council, board of trustees or board of county commissioners from enacting restrictions upon and regulations of the traffic in intoxicating liquors in addition to but not in conflict with the provisions of this act." (Italics ours.) A careful reading of this section shows that the legislature had reference only to future enactments, and not to existing ordinances or past acts. The language of the act is that the authorities referred to therein shall not be prohibited from "enacting restrictions." This has reference to future enactments only. If the legislature had intended to recognize existing ordinances or past acts, it could easily have indicated that intention by the use of proper language in the very section we have quoted. Not having done so, and, further, by clearly indicating by the language used that it was the intention to authorize only future enactments upon the subject, we are not authorized to interfere with the intention of the legislature when such intention is once ascertained.

The act also contains conditions which require elections to be held in the cities, towns, and county districts outside of such cities and towns in the counties at large to determine whether the traffic in intoxicating liquors shall be regulated by licensing the same or whether it shall be entirely prohibited. It is therefore provided that all licenses which were granted under the existing law, which, by their terms, shall be in force on the first day of October following such election, shall terminate on that day, and, that the unearned portion of the license money shall be refunded to the licensees, and their right to sell intoxicating liquors shall thereupon cease under the old law. The act also provides that elections may be held in any voting unit where authority to sell liquor exists, and, if a majority of the qualified electors of such voting unit vote "against sale," the traffic in intoxicating liquors in said unit must cease on the 30th day of September following such election. The act provides that all elections held under it must be held in the month of June in the year in which they are held. Such elections may be held once in two years in any voting unit whenever a certain per cent. of the qualified electors thereof petition the authorities to call an election to determine the question of whether intoxicating liquors shall or shall not be sold within the voting unit aforesaid. It is apparent, therefore, that the right to sell may be terminated in any voting unit at any election, and thus the act makes provisions that those who are engaged in the traffic may have sometime after the election to adjust their business so as to comply with the law.

Let us assume that in Pleasant Grove City the sale of intoxicating liquors was prohibited, as appears from the ordinance in question, and that the electors in that city at an election held in June, 1911, voted to continue that policy in force, and that in June, 1913, those same electors shall again vote, and in doing so shall change the policy from that of "against sale" to "for sale," will any one seriously contend that, under such circumstances, the provisions of the act were not in force in said city until the policy was changed as aforesaid? It must not be assumed that it is the result of the elections which are provided for in the act that puts the provisions of the act as a whole in force or effect. The only effect the elections have, where a change is made thereby, is that the provisions of the act which are especially intended to meet such changes then become effective in accordance with the changed conditions produced by the elections. The act as a law is, however, in force in any city or town in any event. The mere fact that chapter 106 provides for changes in certain cities or towns, and that, in case such changes take place, it is stated or repeated in the act itself that the provisions thereof shall be in full force and effect after such changes take effect, does not prevent the act from having become effective before such changes were made. Indeed, the whole purport of the language of the act is to the contrary.

Nor can there be any doubt that the legislature had full power to take the matter of regulating or prohibiting the liquor traffic from the control of the municipalities of this state. Woollen & Thornton, in their work entitled, "The Law...