State v. Musser, 7301

Citation176 P.2d 199,67 Idaho 214
Decision Date14 December 1946
Docket Number7301
PartiesSTATE v. MUSSER
CourtIdaho Supreme Court

Appeal from District Court, Third Judicial District, Ada County Charles F. Koelsch, Judge.

Affirmed.

Charles F. Reddoch, James H. Hawley and Vernon K. Smith, all of Boise, for appellant.

The right of the city to legislate on matters of local concern as conferred by Sec. 2, Art. 12, of the Const., is subordinate to that of the State, and when Sec. 26, Art. 3 of the Const. was amended in 1934, placing full and complete control of intoxicating liquors in the Legislature, this operated to impliedly repeal any authority the city might have theretofore had with respect thereto. Section 26, Article 3, Idaho Constitution, Ida.S.L.1935, page 375; Section 2, Article 12, Idaho Constitution; Herrick v. Gallet, 35 Idaho 13, 204 P. 477; Ex Parte Kerby, 103 Or. 612, 205 P. 279, 36 A.L.R. 1451, and Annotation page 1456; Allison v. City of Phoenix, 44 Ariz. 66, 33 P.2d 927, 93 A.L.R. 354; Hammond v. Clark, 136 Ga. 313, 71 S.E. 479, 38 L.R.A., N.S., 77; State v. Holmes, 100 Mont. 256, 47 P.2d 624, 100 A.L.R. 581; Steele, Hopkins & Meredith Co. v. Miller, 92 Ohio St. 115, 110 N.E. 648, L.R.A.1916C, 1023, Ann.Cas.1917C, 926.

When the charter of Boise City provided that appeals may be taken and shall be allowed from the final judgments of the municipal court, in the same manner and with like effect, that appeals may be taken and shall be allowed in justice's courts, this language conferred upon a defendant the same rights, as that given a defendant on an appeal from a justice's court, including the right to a jury trial. Cassidy v. Constantine, 269 Mass. 56, 168 N.E. 169, 66 A.L.R. 1186; Stuyvesant Real Estate Co. v. Sherman, 40 Misc. 205, 81 N.Y.S. 642; Fine v. Soifer, 288 Pa. 164, 135 A. 742; Beal v. Lynch, 242 Mass. 65, 136 N.E. 172.

Frank Langley, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James W. Blaine, Pros. Atty. and C. Stanley Skiles, City Atty., all of Boise, for respondent.

The legislature having retired from the field, a city may control or prohibit drinking in public places. 37 Am.Jur. 923, Sec. 287, at p. 924; Idem., 787, Sec. 165, at p. 790; cf. Laws 1935, ch. 103, Secs. 35 and 36, and Laws 1939, ch. 222, Sec. 904; Ex parte Coombs, 169 Cal. 484, 147 P. 131; Giddings v. Bd. of Trustees, 165 Cal. 695, 133 P. 479.

Or may make additional regulations to those provided by statute. There is no conflict in such case. State v. Preston, 4 Idaho 215, 38 P. 694; State v. Quong, 8 Idaho 191, 67 P. 491; In re Henry, 15 Idaho 755, 99 P. 1054, 21 L.R.A.,N.S., 207; Mann v. Scott, 180 Cal. 550, 182 P. 281; Ex Parte Hoffman, 155 Cal. 114, 99 P. 517, 132 Am.St.Rep. 75; Seattle v. Chin Let, 19 Wash. 38, 52 P. 324; Society Theatre v. Seattle, 118 Wash. 258, 203 P. 21; Ham v. Los Angeles Co., 46 Cal.App. 148, 189 P. 462.

The state law merely forbids "drunkenness" in public places. One may drink without becoming drunk. Laws 1939, Ch. 222, Secs. 904 and 819; Ibach v. Jackson, 148 Or. 92, 35 P.2d 672, 678, quoting Bouvier's Law Dictionary.

The restaurant here concerned was a public place. Transcript, ff. 18, 19; Laws 1939, sec. 904; Sherfey v. Brazil, 213 Ind. 493, 13 N.E.2d 568, 570; People v. Soule, Co.Ct., 142 N.Y.S. 876, 880.

Budge, Justice. Givens, J., and Sutphen, D. J., concur. Holden, Justice, dissenting in part and concurring in part. Miller, J., concurs with the views above expressed by Holden, J.

OPINION

Budge, Justice.

This is an appeal from a judgment of conviction. Appellant was found guilty of drinking intoxicating liquor in a public place in violation of Section 4-802, Boise City Code, 1936. The charging part of the complaint alleges: "That J. B. Musser of Boise City, Idaho, on or about the 11th day of January, 1946, at the City of Boise, in the County of Ada, State of Idaho, did commit the crime of misdemeanor by then and there being, did wrongfully and unlawfully then and there drink intoxicating liquor in a public place, to-wit: the restaurant of the Boise Hotel."

The pertinent part of the ordinance under which the charge against appellant is laid is as follows: "4-802. Drinking in Public Places -- Any person who shall in any public place * * * drink any intoxicating liquor of any kind * * * shall be deemed guilty of a misdemeanor."

The validity of the ordinance is attacked by appellant, his contention being, first, that it is unconstitutional; second, that it is an unconstitutional exercise of the police power of Boise City; and, third, that it conflicts with the Idaho Liquor Act. (Session Laws, 1939, Chapter 222.)

The facts are stipulated, from which it appears that appellant committed the act charged in the complaint. Appellant specifies seven assignments of error. We do not deem it necessary to discuss these assignments verbatim.

It might be well here to briefly call attention to the fact that prior to the amendment Section 26, Article 3 of the Constitution read as follows: "From and after the first day of May in the year 1917, the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes are forever prohibited. The legislature shall enforce this section by all needful legislation."

The above constitutional provision was adopted in furtherance of Section 24, Article 3 of the Constitution, which reads as follows: " Promotion of temperance and morality. -- The first concern of all good government is the virtue and sobriety of the people, and the purity of the home. The legislature should further all wise and well directed efforts for the promotion of temperance and morality."

The legislature, in its 1933 session (Session Laws, 1933, p. 470), submitted the following proposed amendment to Section 26, Article 3 of the Constitution: "From and after the thirty-first day of December in the year 1934, the Legislature of the State of Idaho shall have full power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes."

The amendment was ratified by a vote of the people at the November 1934 general election. (Session Laws, 1935, p. 375.)

Under Section 26, Article 3 of the Constitution, and prior to its amendment, the legislature was empowered to enact all needful legislation to prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes, whereas, by the amendment, supra, the legislature was granted full power and authority to authorize the sale of intoxicating liquors for beverage purposes and to regulate and control the traffic therein in every way and in all respects. In other words, by the amendment last referred to the state ceased to be a prohibition state.

The legislature in January 1935, following the adoption of the constitutional amendment, passed what is known as the Idaho Liquor Control Act (Session Laws, 1935, Chapter 103, p. 222) reserving to the State the right to buy, sell, and generally traffic in intoxicating liquors. The liquor control act of 1935, supra, was repealed by Chapters 14 and 222 of the 1939 Session Laws, pp. 30 and 465, respectively. Section 102 of Chapter 222 declared that it is "passed in the exercise of the police power of the state."

The purpose of the act and the end to be attained was the control of traffic in intoxicating liquors by the State and making a profit to the state. The act vested in the liquor board full power and authority to do everything necessary to be done in order to control the liquor traffic. In this field, neither the constitutional amendment, nor the liquor act, nor any other act of the legislature that we know of, sought to control the drinking of intoxicating liquor in any public place within the corporate limits of a municipality. Under such circumstances, the municipality would not be prohibited from legislating. Sternall v. Strand, Cal.App., 172 P.2d 921; Southern California Law Review, Vol. IX, No. 2, January, 1936; 37 Am.Jur. sec. 287, p. 923 at 924; 37 Am.Jur. sec. 165, p. 787 at 790; Giddings v. Board of Trustees, 165 Cal. 695, 133 P. 479.

It was held in State v. Quong, 8 Idaho 191, 67 P. 491, 492: "The burden of policing the different cities should not be thrown upon the state, nor upon the county in which the particular city in question may be situated. A prompt and efficient police service is absolutely necessary to a well regulated and conducted city."

Boise City possesses full police power in affairs of local concern. The amendment to section 26, article 3 of the Constitution did not vest exclusive jurisdiction in the legislature to control the liquor traffic within the limits of incorporated cities and towns. (Article 12, Section 2, Constitution.) It will be further noted that neither the constitutional amendment nor the Idaho Liquor Act provides for or suggests a change or suspension of the Boise City Charter in any respect. It is settled law in this jurisdiction that a special charter, such as Boise City has, cannot be amended by general law. Hoffer v. City of Lewiston, 59 Idaho 538, 85 P.2d 238, and cases therein cited; Bagley v. Gilbert, 63 Idaho 494, 122 P.2d 227.

Article 12, section 2 of the Constitution provides: " Any county, or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws."

Under the above constitutional provision counties, cities and towns have full power in affairs of local government notwithstanding general laws of the state defining and punishing the same offense. Session Laws, 1939, chap. 215 sec. 6, p. 441; McQuillan Mun. Corp., 2d Ed., sec....

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