State v. Robbins, 6576

• Decision Date: 28 July 1938
• Docket Number: 6576
• Citation: 81 P.2d 1078,59 Idaho 279
• Parties: STATE, Respondent, v. W. S. ROBBINS, Appellant
• Court: Idaho Supreme Court

81 P.2d 1078

59 Idaho 279

STATE, Respondent, v. W. S. ROBBINS, Appellant

No. 6576

Supreme Court of Idaho

July 28, 1938

MUNICIPAL CORPORATIONS-LOCAL POLICE REGULATIONS, LIMITATIONS OF-COUNTY BEER LICENSE.

1. The right to exercise police power of state in local police sanitary, and other regulations has not been granted to counties and municipalities by constitution without limitation, but such right is limited to such regulations as are not in conflict with general laws. (Const., art. 12, sec 2.)

2. A retail vendor of beer to whom licenses to conduct his business have been issued by the state and by city wherein it is conducted, and who has been refused a license by county in which city is situated, does not commit a crime by continuing to carry on his business of selling beer at retail. (Sess Laws, 1935, chap. 132, secs. 5, 7; Const., art. 12, sec. 2.)

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Miles S. Johnson, Presiding Judge.

Appellant was convicted of selling beer, at retail, in Moscow, Latah County, without having received a county license to do so. Reversed.

Reversed.

Latham D. Moore, for Appellant.

The only express authority to county commissioners to issue or grant any license for the purpose of regulation is found in chapter 3, Title 53, I. C. A.

Municipalities are given express authority to license and regulate any occupation or business and may enforce its ordinances by imposing a fine for a violation thereof. (Secs. 49-1107, 49-1109, I. C. A.)

An act of the legislature creating a statutory offense should define the acts necessary to constitute such offense with such certainty that a person may determine whether or not he has violated the law at the time he does the act which is charged to be an offense thereof. (State v. Burns, 53 Idaho 418, 23 P.2d 731.)

J. W. Taylor, Attorney General, D. W. Thomas, Assistant Attorney General, and Murray Estes, Prosecuting Attorney of Latah County, for Respondent.

County commissioners exercise the higher and superior power in the matter of granting licenses to sell intoxicating liquor in incorporated cities and without a county license there is no authority to sell within the boundaries of an incorporated city, and no right exists in the city to grant a license to one who has been unable to secure a county license. (Anderson v. Board of County Commrs., 22 Idaho 190, 125 P. 188.)

Under the constitution the legislature has the power by general law (Beer Act of 1935) to vest in counties and cities the power to assess and collect license taxes for the purpose of regulating the sale of liquor and the fact that the dealer has purchased a city license does not exempt him from purchasing a county license for the same purpose, and for his failure to do so, such is a misdemeanor. (Ex parte Lawrence, 69 Cal. 608, 11 P. 217; In re Mansfield, 106 Cal. 400, 39 P. 775; State v. Wall, 18 Idaho 300, 109 P. 724; Bingham County v. Fidelity & Deposit Co., 13 Idaho 34, 88 P. 829; Title 61, chap. 20, I. C. A.; chap. 132, 1935 Sess. Laws.)

MORGAN, J. Holden, C. J., concurs, Givens, J., concurs in the conclusion. Ailshie and Budge, JJ., sat with the court at the hearing but do not participate in the decision.

OPINION

MORGAN, J.

In the trial court the facts were stipulated as follows:

"That prior to the 1st day of January, A. D., 1938, the county commissioners of Latah County, State of Idaho, duly and regularly passed an ordinance requiring each retailer of beer in Latah County, State of Idaho, to pay an annual license fee of $ 25.00 for the sale of bottled and draught beer; that on the 10th day of December, A. D., 1937, the above named defendant duly and regularly made an application to the county commissioners for such license and complied with the regulations of the board of county commissioners in respect to such application; that on the 3rd day of January, A. D., 1938, the county commissioners rejected said application and refused to issue a license to retail beer to the said W. S. Robbins; that at all times herein mentioned the said W. S. Robbins has been, and now is, operating but one establishment for the retail of beer, which said establishment is located within the limits of the City of Moscow, Latah County, State of Idaho, and that said City of Moscow is an incorporated town; that on the 8th day of December, A. D., 1937, the above named defendant applied to, and received from, the city council of the City of Moscow, Latah County, State of Idaho, a license to retail beer during the year 1938 at his place of business in Moscow, Idaho; that on the 3rd day of January, A. D., 1938, the State of Idaho, through its commissioner of law enforcement, J. L. Balderston, did duly and regularly issue and deliver to defendant its license authorizing the above named defendant to retail beer in his place of business in Moscow, Idaho, during the year 1938."

Judgment of conviction of the defendant was entered, from which he has appealed to this court.

This is the question presented for decision: Does a retail vendor of beer, to whom licenses to conduct his business have been issued by the state and by the city wherein it is conducted, and who has been refused a license by the county in which said city is situated, commit a crime by continuing to carry on his business of selling beer at retail?

Idaho Session Laws, 1935, page 312, chapter 132, authorizes and regulates the manufacture, sale and distribution of beer in this state. Section 5 of that chapter requires that an applicant for a license to be issued by the state commissioner of law enforcement, to sell beer at retail, shall present with his application the original, or a photostatic copy of a license issued to him by a county or municipality of the state, establishing his right to engage in business there. Section 7 fixes the license fees to be paid to the state by those who engage in the manufacture and sale of beer. It also contains the following:

"Provided, however, that nothing in this Act shall be so construed as to prohibit or prevent municipalities or counties from licensing and regulating places of business where beer is sold to the consumer. Provided, further, that no county or any municipality, whether operating under a special charter or otherwise, shall exact a license fee from any dealer, nor shall any municipality exact a license fee from any retailer, except as follows,--

"(a) Where such retailer sells only bottled beer, not in excess of the sum of Fifty dollars ($ 50.00) a year;

"(b) Where such retailer sells draught beer and bottled beer, or draught beer only, not in excess of One Hundred dollars ($ 100.00) a year;

"Nor shall any county exact a license fee from any retailer except as follows,--

"(a) Where such retailer sells only bottled beer, not in excess of the sum of Fifty dollars ($ 50.00) a year;

"(b) Where such retailer sells draught beer and bottled beer, or draught beer only, not in excess of One Hundred dollars ($ 100.00) a year."

While it will be inferred from the foregoing that counties are permitted to collect license fees from retail dealers in beer within their boundaries, the statute makes no suggestion that one who is engaged in vending beer at retail within a city, which has regularly licensed him to do so is guilty of a crime in so doing because he has applied to the board of commissioners of the county wherein the city is situated for a license and his application has been denied.

This court said in Re Moore, 38 Idaho 506, 515, 224 P. 662, 665: "before an act may be held by the courts to be a crime it must clearly and unmistakably appear that the legislature has made it so.

"'There can be no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute.' (United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625, 33 L.Ed. 1080; United States v. Bathgate, 246 U.S. 220, 38 S.Ct. 269, 62 L.Ed. 676.)

"'An offense is not punishable unless it falls within the condemnation of some penal statute. If it is not plainly and specifically within the act, it is not against law, and no conviction can be had thereunder. Its provisions are not to be extended by implication, and the act charged as an offense must be unmistakably within the letter as well as the spirit of the law.' (State v. Tuffs, 54 Mont. 20, 26, 165 P. 1107; State v. Lutey Bros., 55 Mont. 545, 179 P. 457.)" (See, also, State v. Burns, 53 Idaho 418, 23 P.2d 731.)

Anderson v. Board of Commissioners, 22 Idaho 190, 125 P. 188, is a case wherein a writ of mandate was sought to compel a county board to issue a liquor license to plaintiff authorizing him to sell intoxicating liquors within the limits of the city. This...