State v. Teninty, 7562

• Decision Date: 05 October 1949
• Docket Number: 7562
• Citation: 212 P.2d 412,70 Idaho 1
• Parties: STATE v. TENINTY
• Court: Idaho Supreme Court

212 P.2d 412

70 Idaho 1

STATE v. TENINTY

No. 7562

Supreme Court of Idaho

October 5, 1949

On Rehearing December 17, 1949.

Robert E. Smylie, Atty. Gen., Donald A Purdy, Asst. Atty. Gen., Don J. McClenahan, Asst. Atty. Gen J. N. Leggat, Asst. Atty. Gen., Charles Herndon, Pros. Atty Salmon, for appellant.

In construing a law that meaning should be adopted which is most consonant with its obvious policy. Interpretation should serve to effectuate the object and purpose of a statute. Parsons v. Wrble, 1912, 21 Idaho 695, 702, 123 P 638; Wood v. Independent School District, 1912, 21 Idaho 734, 740, 124 P. 780.

A statute providing for or defining an offense created by a previous act, and providing a materially different punishment takes precedence over the former act whether the punishment is reduced or increased. Repeal of the prior inconsistant act is inevitable where the later act is a comprehensive act establishing elaborate inclusions and exclusions of persons, things and relationships ordinarily associated with the common subject matter. U. S. v. Yuginovich, 1921, 256 U.S. 450, 41 S.Ct. 551, 65 L.Ed. 1043; State v. Brennan, 1931, 89 Mont. 479, 300 P. 273; State v. Holt, Mont. 1948, 194 P.2d 651.

A law is not special simply because it may have only a local application or apply only to a special class if it applies to all similar localities and to all belonging to the specified class to which the law is made applicable. Jones v. Power County, 1915, 27 Idaho 656, 665, 150 P. 35; Big Wood Canal Co. v. Chapman, 1927, 45 Idaho 380, 403, 263 P. 45; Ada County v. Wright, 1939, 60 Idaho 394, 403, 92 P.2d 134; 50 Am.Jur. 17, (Statutes, § 6).

Confining the sale of alcoholic beverages to licensed places within the corporate limits of cities and villages is not arbitrary, unreasonable or discriminatory and is a valid exercise of the state's police power. Purity Extract and Tonic Co. v. Lynch, 1912, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184; Ratliff v. Hill, 1943, 293 Ky. 36, 168 S.W.2d 336, 145 A.L.R. 754.

F. A. McCall, Salmon, for respondent.

Chapter 274 of the Session Laws 1947 is a local option act and has no operation outside of the limits of the incorporated cities and villages which have elected to come within its provisions. Chapter 274 Session Laws 1947; State ex rel. Good v. Boyle, 67 Idaho 512, 523, 186 P.2d 859; Chadrick v. State, 175 Tenn. 680, 137 S.W.2d 284; Renfro v. State, 176 Tenn. 638, 144 S.W.2d 793; Sections 58, 63, 67, 70, C.J.S. pages 196, 198, 200, 201; Humphreys v. State, 28 Ala.App. 307, 183 So. 685; State v. Wilson, 227 N.C. 43, 40 S.E.2d 449; State v. Garde, 69 Idaho 209, 205 P.2d 504; Ballantine's Law Dictionary, 769, under head "Local Option".

Section 35, Chapter 274, Session Laws of 1947, does not repeal, either expressly or by implication, Section 902, Chapter 222, Session Laws 1939. State ex rel. Good v. Boyle, and cases cited thereunder, 67 Idaho 512, 186 P.2d 859; John Hancock Mutual Life Insurance Company v. Haworth, 68 Idaho 185, 191 P.2d 359.

Keeton, Justice. Holden, C. J., and Givens and Taylor, JJ., concur. Porter, J., dissents.

OPINION

Keeton, Justice.

The respondent having been by the Probate Court of Lemhi County held to answer to the District Court for the unlawful sale of intoxicating liquor, the Prosecuting Attorney filed an information charging him with the crime of a felony, as follows: "That on or about the 16th day of January, 1949, at the Riverside Club, in Lemhi County, State of Idaho, the said Orba H. Teninty, then and there being, did then and there wilfully, unlawfully and feloniously sell liquor by the drink without a license, by then and there selling to Thomas Maydole a drink of liquor, to-wit: whiskey, without then and there having a license from the State of Idaho to sell the said liquor by the drink."

To the information the respondent demurred, challenging the jurisdiction of the Probate Court to hold him for trial in the District Court, and of the District Court to try him, for the reason, the respondent contended, the facts alleged charged only a misdemeanor in violation of Sec. 23-602, I.C., Act of 1939, Sec. 902, Chap. 222, and not a violation of Sec. 23-938, I.C., Act of 1947, Sec. 35, Chap. 274. The trial Judge sustained the demurrer and dismissed the information holding that Sec. 23-938, I.C., was intended to apply only to persons who thereafter might be issued a license under the act. Chap. 274, Session Laws of 1947.

From the judgment of dismissal, the State appealed.

The respondent contends that Chap. 274 of the Session Laws of 1947 under which the proceedings were had is a local option act, and has no operation outside the limits of incorporated cities and villages which have elected to come within its provisions; and Sec. 23-938, I.C., 1947 Act, does not repeal either expressly or by implication Sec. 23-602, I.C., 1939 Act.

In other words, respondent contends that the unlawful sale in question, having taken place outside of the boundaries of a municipality licensing the sale of liquor by the drink, he could only be guilty of a misdemeanor, and in which event should have been tried in the Probate Court.

The State on the other hand contends that an unauthorized, unlawful sale of intoxicating liquor in any part of the state constitutes a felony, triable in the District Court.

The substance of the offense charged is the unlawful sale of intoxicating liquor. Section 23-602, I.C., supra, makes it unlawful to sell intoxicating liquor and provides a penalty. Section 23-938, I.C., makes it unlawful to sell intoxicating liquor without a license as provided for in the Act of 1947. Session Laws, 1947, Chap. 274. The latter section prescribes a different penalty than Sec. 23-602, I.C., Session Laws, 1939, Chap. 222. If Sec. 23-602, I.C., applies only to territory outside of a municipality which has authorized the sale of intoxicating liquor by the drink, and Sec. 23-938, I.C., applies only to municipalities that have authorized the sale of intoxicating liquors by the drink, then persons selling intoxicating liquor in what might be described as "dry territory" would be guilty of a misdemeanor. If Sec. 23-938, I.C., applies to all areas of the state, then the information was properly filed.

It will be noted that both sections make the unauthorized sale of intoxicating liquors unlawful, but the penalties prescribed by the sections are in conflict.

By Chap. 274, 1947 Session Laws, the legislature deemed it advisable and necessary for the protection of the health, welfare and safety of the people to further regulate and control the sale of alcoholic beverages. For that purpose a licensing scheme was designed which authorized the sale of alcoholic beverages by the drink at retail when such sale was made by persons properly licensed. For the first time since prohibition had become a state policy, the sale of liquor by the drink by licensees was made lawful, and the legislature in providing for such sale of intoxicating liquor, under conditions prescribed, designated it a felony to sell any intoxicating liquor without a license as in the act provided. The 1947 act was supplemental to, and in furtherance of, the objectives of prohibiting the sale except under license; and unless or until one holds a license to sell intoxicating liquor by the drink, the sale of the same by anyone is defined as a felony.

In interpreting conflicting laws, in this case conflicting penalties, it is a rule of statutory construction that statutes should be construed as to effect the purpose thereof. Sec. 1, of the 1947 Act, Sec. 23-901, I.C., makes a declaration of policy, in part as follows: "It is hereby declared as the policy of the state of Idaho that it is necessary to further regulate and control the sale and distribution within the state of alcoholic beverages and to eliminate certain illegal traffic in liquor now existing and to insure the ...