State ex rel. Schirado v. Frye

• Decision Date: 28 March 1968
• Docket Number: No. 8466,8466
• Citation: 157 N.W.2d 830
• Parties: STATE of North Dakota ex rel. Lester J. SCHIRADO, State's Attorney of Morton County, Plaintiff, v. L. Ray FRYE, Gerald Boren and Hazel Boren, Defendants. and STATE of North Dakota ex rel. Lester J. SCHIRADO, State's Attorney of Morton County, Plaintiff, v. Robert CLIFFORD and Eileen Clifford, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 830

157 N.W.2d 830

34 A.L.R.3d 1143

STATE of North Dakota ex rel. Lester J. SCHIRADO, State's Attorney of Morton County, Plaintiff, v. L. Ray FRYE, Gerald Boren and Hazel Boren, Defendants. and STATE of North Dakota ex rel. Lester J. SCHIRADO, State's Attorney of Morton County, Plaintiff, v. Robert CLIFFORD and Eileen Clifford, Defendants.

Civ. No. 8466.

Supreme Court of North Dakota.

March 28, 1968.

Rehearing Denied April 22, 1968.

Syllabus by the Court

Observance of mountain standard time in Morton County during the period from April 1, 1967, to April 12, 1967, is inconsistent with the Uniform Time Act of 1966, and the use by the defendants of mountain standard time to determine the opening and closing hours of their retail liquor establishments did constitute a violation of Section 5--01--23 of the North Dakota Century Code.

Lester J. Schirado, State's Atty., of Morton County, Mandan, for plaintiff.

Vogel, Bair & Graff, Mandan, for defendants L. Ray Frye, Robert Clifford, and Eileen Clifford.

Floyd B. Sperry, Bismarck, for defendants Gerald Boren and Hazel Boren.

PAULSON, Judge.

This matter involves two cases which, by stipulation, were consolidated for the purpose of deciding the issues raised by the pleadings. The actions were commenced in the name of the State by the State's Attorney for Morton County to abate a common nuisance, that is, that the defendants, between the dates of April 1, 1967, and April 12, 1967, served alcoholic beverages in violation of Section 5--01--23 of the North Dakota Century Code. It is contended, because of the Uniform Time Act of 1966, that Morton County liquor outlets were required to base their opening and closing hours on central standard time after April 1, 1967. In order to test the validity of the enforcement official's contention, the defendants used mountain standard time as a basis for determining their closing hours during the period from April 1, 1967, to April 12, 1967. The actions before us were commenced on the latter date, and, pending the outcome of this suit, the defendants have been operating on central standard time. Thus the questions answered in this opinion will be answered for the period April 1, 1967, to April 12, 1967.

The cause is before us, under the provisions of Chapter 32--24, N.D.C.C., on three certified questions of law, which are:

1. Did the Uniform Time Act of 1966 (80 Stat. 107) set a mandatory time standard effective April 1, 1967, by which the hours for sale of alcoholic beverages in Morton County set forth in Chapter 5--01 of the North Dakota Century Code must be determined?

2. What time standard is to be used after the effective date of the Uniform Time Act of 1966, to determine the hours for lawful sale and distribution of alcoholic beverages in Morton County by licensed retailers under the provisions of Chapter 5--01 of the North Dakota Century Code?

3. Did the Uniform Time Act of 1966 (80 Stat. 107) compel the observance of central standard time in areas of Morton County formerly following mountain standard time?

The district court answered these certified questions as follows:

Question No. 1. Yes.

Question No. 2. Central standard time.

Question No. 3. Yes.

For reasons to be stated later, this court has determined that the questions should be answered as follows:

Question No. 1. Yes.

Question No. 2. Central standard time as established by the Uniform Time Act of 1966 (80 Stat. 107).

Question No. 3. Yes.

Section 5--01--23 of the North Dakota Century Code, since repealed, the provisions of which are alleged to have been violated by the defendants in this case, read:

'It shall be unlawful for any place licensed to retail alcoholic beverages to sell, give away, or permit to be consumed in any such place any alcoholic beverages between the hours of one o'clock a.m. and eight o'clock a.m.'

It is apparent from the above quotation that the particular standard of time to be used in determining a violation of this section is not set out. There was no statutory standard of time enacted by the Legislature in North Dakota as of April 1, 1967. Therefore, these cases hinge on the contention that the Uniform Time Act of 1966 (80 Stat. 107, 15 U.S.C.A. § 260 et seq., Supp.1967) provides for central standard time throughout the State of North Dakota, with the exception of the extreme southwestern corner.

The federal Standard Time Act of 1918 (40 Stat. 450) adopted what is called 'standard time' as the measure of time in this State, subject to the exception as heretofore indicated. Thereafter such time standard was employed over the greater area of the State and by a great majority of the people of the State in the conduct of their business and social affairs.

The defendants urge that mountain standard time was the prevailing time in use in Morton County, but such time would not, in the opinion of this court, preempt the central standard time in general use throughout the State in the absence of any record in this case that the State had provided by statute for any particular standard of time which would be applicable to the defendants in this case. Nor is the stipulation of the State's attorney in the instant case that his office followed mountain standard time in determining the closing hours for liquor establishments prior to the effective date of the Uniform Time Act of 1966 (80 Stat. 107) controlling. Webb v. Clatsop County School Dist. No. 3, 188 Or. 324, 215 P.2d 368 (19...