State v. Andre

• Decision Date: 13 February 1936
• Docket Number: No. 7479.,7479.
• Parties: STATE v. ANDRE.
• Court: Montana Supreme Court

101 Mont. 366

STATE

v.ANDRE.

No. 7479.

Supreme Court of Montana.

Jan. 31, 1936.

Rehearing Denied Feb. 13, 1936.

Appeal from District Court, Granite County; R. E. McHugh, Judge.

Peter Andre was charged by information with unlawfully keeping, giving, and consuming intoxicating liquors in a place not his residence. From a judgment dismissing the information after sustaining a demurrer thereto, the State appeals.

Reversed and remanded, with directions.

D. M. Durfee, of Philipsburg, Raymond T. Nagle, Atty. Gen., and Oscar A. Provost, Asst. Atty. Gen., for the State.

George D. Toole, of Butte, and Toomey & McFarland and John W. Chapman, all of Helena, for respondent.

ANDERSON, Justice.

An information was filed in the district court of Granite county charging the defendant Peter Andre with unlawfully keeping, giving, and consuming intoxicating liquors in a place not his residence. It contains a specific description of numerous and various kinds of intoxicating liquors; it is definite both as to the amount and name of each particular kind. To this information a demurrer was filed, alleging that it did not state facts sufficient to constitute a public offense. After hearing, the demurrer was by the court sustained, and a judgment was entered dismissing the information. The appeal is from this judgment.

The cause was argued by the same counsel, and at the same time, as the case of State v. Driscoll (Mont.) 54 P.(2d) 571, this day decided. The same questions there urged as to the unconstitutionality of chapter 105 of the Laws of 1933 were renewed on the argument of this cause, and for the reasons recorded in that decision they are held to be without merit.

In addition, counsel in this case urged that the above chapter is violative of the various constitutional provisions not there argued and considered in the opinion. It is first contended that the act in question is violative of section 1 of article 4 of the Constitution, in that legislative and judicial powers are delegated to the liquor control board. It is particularly urged that subdivision (k) of section 8 and certain of the provisions of section 9 are vulnerable to those attacks. The latter section confers on the board authority to make rules not inconsistent with the act relating to the administration of it.

It is not contended that the defendant was prosecuted for the violation of any rules or regulations promulgated under the provisions of the act. So far as we are advised, the liquor control board has promulgated no rules or regulations under the powers conferred on it by statute. If any such have been promulgated we are not at liberty to take judicial notice of such rules. We will not take judicial notice of the existence of the rules of the various district courts (Pincus v. Davis, 95 Mont. 375, 26 P.(2d) 986), and we have applied the same rule with reference to the taking of judicial notice of the rules of procedure, if any, of the Industrial Accident Board, which is an administrative body. Williams v. Anaconda Copper Min. Co., 96 Mont. 204, 29 P.(2d) 649.

Counsel for the state argue that the defendant cannot raise this constitutional question, as it does not appear that his interests have been, or are about to be, prejudicially affected by the operation of the statute conferring power on the liquor control board to promulgate rules. Counsel for the defendant reply that it is a familiar rule in this jurisdiction that the constitutionality of the law may be tested, not by what has been done, but by what may be done thereunder. State ex rel. Holliday v. O'Leary, 43 Mont. 157, 115 P. 204. These two rules are discussed and the cases supporting them are collected in the case of State ex rel. Brooks v. Cook, 84 Mont. 478, 276 P. 958, 963. It was there said, with reference to the rule sought to be invoked herein by the defendant, that it “is applicable to all of those cases wherein by strict compliance with the statute the party raising the question of the validity of the statute could have been deprived of due process of law.” We approved this statement in Rider v. Cooney, 94 Mont. 295, 23 P. (2d) 261. The defendant in this case, as we observed, is not charged with the violation of a rule or regulation of the liquor control board, but with a violation of the act of the legislature; hence he is in no position, under the authorities cited, supra, to raise the constitutional question. However, in passing, we discussed at considerable length the question of the delegation of power by the Legislature, in the case of State ex rel. Normile v. Cooney, 100 Mont. 391, 47 P.(2d) 637, 643, and we reiterate what was there said, wherein it was declared:

“This court in discussing the purpose of section 1 of article 4, in the case of O'Neill v. Yellowstone Irrigation District, 44 Mont. 492, 121 P. 283, 286, said: ‘As was pointed out in State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962: “The purpose of the provision is to constitute each department an exclusive trustee of the power vested in it, accountable to the people alone for its faithful exercise, so that each may act as a check upon the other, and thus may be prevented the tyranny and oppression which would be the result of a lodgment of all power in the hands of one body.” Each department must therefore refrain from asserting a power that does not belong to it, for the assertion of such power is equally a violation of the trust. Id. And it is apparent that one department cannot lawfully delegate any of its powers to another or to any person or body. State v. Holland, 37 Mont. 393, 96 P. 719;In re Weston, 28 Mont. 207, 72 P. 512; 6 Am.&Eng.Ency. Law (2d Ed.) 1022; Cooley's Const. Limitations, 163; Case of Borough of West Philadelphia, 5 Watts.&S. (Pa.) 281.’

In further explanation of the limitations imposed by our Constitution upon the delegation of power by one department to another, in the case of State v. Johnson, 75 Mont. 240, 243 P. 1073, 1077, it was written: ‘That section 1, article 4, does not wholly prevent the exercise of functions of a nature belonging to one department by those administering the affairs of another is recognized in State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392, wherein Mr. Justice Sanner, speaking for this court, said: “The separation of the government into three great departments does not mean that there shall be ‘no common link of connection, or dependence, the one upon the other in the slightest degree’ (1 Story's Commentaries on the Constitution, § 525); it means that the powers properly belonging to one department shall not be exercised by either of the others. Constitution, art. 4, § 1. There is no such thing as absolute independence.” He then cites numerous instances of the exercise of powers by one department which, from their nature, would seem to belong to another, but which are incidents to the proper discharge of the powers vesting in the department exercising them, or are reposed in the particular department as a matter of convenience in governmental affairs. “While the power to make laws may not be delegated to a board or commission, *** a certain policy or rule having been prescribed by statute, matters of detail in carrying out the executive duty of giving effect to the legislative will may be left to boards or commissioners.”'

And finally, in the case of Chicago, etc., Ry. Co. v. Board of Railroad Commissioners, 76 Mont. 305, 247 P. 162, 164, after an exhaustive review of the authorities, this court said: ‘We think the correct rule as deduced from the better authorities is that if an act but authorizes the administrative officer or board to carry out the definitely expressed will of the Legislature, although procedural directions and the things to be done are specified only in general terms, it is not vulnerable to the criticism that it carries a delegation of legislative power.’ The rule thus announced was subsequently approved in the cases of Northern Pacific Ry. Co. v. Bennett, 83 Mont. 483, 272 P. 987,Barbour v. State Board of Education, 92 Mont. 321, 13 P.(2d) 225, and State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 P.(2d) 624.”

In view of the fact that the defendant is not in a position to question the constitutionality of this act on the ground of delegation of power, we refrain from expressing an opinion as to whether or not any of the particular subdivisions of sections 8 and 9 of the act violate the Constitution in the respects urged.

It is next contended that the sale of liquor by the state in its system of stores is not an exercise of police power, and therefore not a governmental function. Apparently it is conceded that if the system of state stores in dispensing liquor within the provisions of chapter 105, supra, is the exercise of the police power, then the contention is without merit.

In the case of In re O'Brien, 29 Mont. 530, 75 P. 196, 200, 1 Ann.Cas. 373, this court said: “The right to manufacture and traffic in intoxicating liquors is one which is exercised subject to the regulation and control of the police power of the state; a power of which the Legislature cannot divest itself (Burnside v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276;Boston Beer Co. v. Massachusetts, 97 U.S. 25, 24 L.Ed. 989); and such body is the exclusive judge of the manner in which such...