Weller v. Hopper, No. 9222

CourtIdaho Supreme Court
Writing for the CourtSMITH
Citation85 Idaho 386,379 P.2d 792
Docket NumberNo. 9222
Decision Date11 March 1963
PartiesL. M. WELLER, Plaintiff-Respondent, v. E. R. HOPPER, Commissioner, Department of Law Enforcement for the State of Idaho, and the State of Idaho, Defendants-Appellants.

Page 792

379 P.2d 792
85 Idaho 386
L. M. WELLER, Plaintiff-Respondent,
v.
E. R. HOPPER, Commissioner, Department of Law Enforcement for the State of Idaho, and the State of Idaho, Defendants-Appellants.
No. 9222.
Supreme Court of Idaho.
March 11, 1963.

[85 Idaho 387] Frank L. Benson, Atty. Gen., R. LaVar March, Asst. Atty. Gen., Boise, for appellants.

James W. Ingalls, Coeur d'Alene, for respondent.

[85 Idaho 388] SMITH, Justice.

Respondent brought this mandamus proceeding to compel transfer to him of a retail liquor license theretofore issued to another, since deceased, the decedent's personal representative desiring to transfer the license if permitted to do so. This appeal is from a summary judgment granting such relief.

Respondent, while licensed by the Department of Law Enforcement of the State

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of Idaho to sell liquor by the drink at retail, pursuant to the provisions of Idaho Code, Tit. 23, ch. 9, on May 23, 1955, was convicted of the crime of receiving stolen government property,--a felony,--by the United States District Court, Northern Division of Idaho, and duly served a 90-day jail sentence therefor. Upon his conviction, the Department of Law Enforcement revoked respondent's retail liquor license.

April 2, 1962, respondent made application in proper form to appellant, Commissioner of the Department of Law Enforcement, for the transfer to him, respondent, of the retail liquor license theretofore issued to B. W. Shafer, doing business as Boots and Saddle, in Coeur d'Alene, Idaho. Appellant denied the application, basing the denial on the ground of respondent's previous conviction of the aforementioned felony, admittedly not involving the sale or use of intoxicants, which conviction, pursuant to I.C. § 23-910, subd. d, disqualified respondent from ever being issued a liquor license in this state.

Shafer is deceased; his surviving widow, decedent's administratrix, is willing to transfer such license to respondent if by lawful authority.

Upon appellant Commissioner's denial of respondent's application for the transfer of [85 Idaho 389] the Shafer liquor license, respondent petitioned the district court for a writ of mandamus directing appellant to approve the transfer of the license. He also sought a declaratory judgment declaring the right and qualifications of respondent to the transfer of the license by the personal representative of Shafer, deceased. Appellants answered, raising no issue of fact. Each party thereupon moved for summary judgment.

The trial court, holding in favor of respondent, ruled that I.C. § 23-910, subd. d is unconstitutional as applied to respondent in that it denies him equal protection of the laws in violation of Idaho Const. Art. I, § 2; also ruled that I.C. § 23-908 did not preclude the transfer of decedent's license by the personal representative and that the license is transferable because it is a property right by reason of the limitation of the license statute, I.C. § 23-908.

The trial court in granting summary judgment in favor of respondent ordered appellants to grant respondent's application for transfer of the license, and decreed that decedent's administratrix could transfer the license to respondent. Appellants have appealed.

Certain provisions of I.C. § 23-910, to be considered in this proceeding, read:

'Persons not qualified to be licensed.--No license shall be issued to:

* * *

* * *

'b. Any person * * * who has been convicted of any felony or has paid any fine or completed any sentence of confinement for any felony within five years prior to the date of making application for a license.

* * *

* * *

'd. A person whose license issued under this act has been revoked * * *.

* * *

* * *

'h. Any license, held by any licensee disqualified under the provisions of this section from being issued a license, shall forthwith be revoked by the commissioner.'

It thus appears, pursuant to the quoted provisions of I.C. § 23-910, that under the subsection b no liquor license can be issued to a person who has been convicted of a felony, paid any fine or completed any sentence of confinement for any felony, within five years prior to the date of making application for the license. But a person who had a license at the time of his conviction of a felony, and whose license for that reason had been revoked under subsection h would, because of subsection d, be forever disqualified from obtaining a license. Thus, if respondent had not held a liquor license at the time of his conviction of a felony in 1955, he would, five years' later, have become eligible for a liquor license. [85 Idaho 390] But since respondent did have a liquor

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license at the time of his felony conviction, which license was revoked because of such conviction, subsection d would forever prohibit him from obtaining a liquor license. Thus there appears to be an attempted legislative classification whereby a person, who held a liquor license when convicted of a felony, is forbidden the benefits of the liquor licensing statute; whereas a person who is not a liquor licensee at the time of his felony conviction is not forbidden the benefits of such statute.

'Within extremely broad limits the state legislatures may control practices in the business-labor field, as long as specific constitutional provisions are not violated, and as conflicts with valid and controlling federal laws are avoided, and the states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs. Accordingly, although * * * the right to labor and the right to enjoy the rewards thereof are natural rights protected by the various constitutions, the right of engaging in a lawful business or occupation is subject to regulation under the police power, * * *.

'The right to labor and the right to enjoy the rewards thereof, however, may not be unreasonably interfered with by legislation; and the power to regulate a business or occupation does not necessarily include the power to exclude persons from engaging in it. * * * A state may not, under the guise of protecting the public, arbitrarily interfere with or prohibit private businesses or lawful occupations, and any regulation must be reasonable in its nature and directed to the prevention of the evils, and adapted to the accomplishment of the avowed purposes.' 16 C.J.S. Constitutional Law § 188, pp. 925-930.

In State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 254 P.2d 29, California's Supreme Court...

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20 practice notes
  • Rushmore State Bank v. Kurylas, Inc., No. 15764
    • United States
    • Supreme Court of South Dakota
    • May 11, 1988
    ...Beverage Control Bd., 377 F.Supp. 151 (D.Alaska 1974); Roehm v. Orange County, 32 Cal.2d 280, 196 P.2d 550 (1948); Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963); State v. Saugen, 283 Minn. 402, 169 N.W.2d 37 (1969); Harding v. Bd. of Equalization, 90 Neb. 232, 133 N.W. 191 (1911); Nel......
  • Coghlan v. Beta Theta Pi Fraternity, No. 24318.
    • United States
    • United States State Supreme Court of Idaho
    • August 30, 1999
    ...Court." Bon Appetit Gourmet Foods, Inc. v. Dep't of Employment, 117 Idaho 1002, 1003, 793 P.2d 675, 676 (1989) (citing Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963)). This Court recently set forth the analysis to apply to equal protection challenges under both the Idaho and United Sta......
  • Thompson v. Engelking, No. 11534
    • United States
    • United States State Supreme Court of Idaho
    • May 1, 1975
    ...is substantially equivalent in construction to the federal clause. State v. Cantrell, 94 Idaho 653, 496 P.2d 276 (1972); Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963). But this is not to say it is equivalent in ultimate As noted above, the Robinson case turned on a particular clause i......
  • Adair v. Freeman, No. 10171
    • United States
    • United States State Supreme Court of Idaho
    • March 6, 1969
    ...v. Pasco, 88 Idaho 36, 395 P.2d 671 (1964), in which we recognized that liquor licenses constitute a property right (Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963)) which can be mortgaged. Schieche v. Pasco, supra, also recognized that mortgaged liquor licenses can be sold during the p......
  • Request a trial to view additional results
20 cases
  • Rushmore State Bank v. Kurylas, Inc., No. 15764
    • United States
    • Supreme Court of South Dakota
    • May 11, 1988
    ...Beverage Control Bd., 377 F.Supp. 151 (D.Alaska 1974); Roehm v. Orange County, 32 Cal.2d 280, 196 P.2d 550 (1948); Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963); State v. Saugen, 283 Minn. 402, 169 N.W.2d 37 (1969); Harding v. Bd. of Equalization, 90 Neb. 232, 133 N.W. 191 (1911); Nel......
  • Coghlan v. Beta Theta Pi Fraternity, No. 24318.
    • United States
    • United States State Supreme Court of Idaho
    • August 30, 1999
    ...Court." Bon Appetit Gourmet Foods, Inc. v. Dep't of Employment, 117 Idaho 1002, 1003, 793 P.2d 675, 676 (1989) (citing Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963)). This Court recently set forth the analysis to apply to equal protection challenges under both the Idaho and United Sta......
  • Thompson v. Engelking, No. 11534
    • United States
    • United States State Supreme Court of Idaho
    • May 1, 1975
    ...is substantially equivalent in construction to the federal clause. State v. Cantrell, 94 Idaho 653, 496 P.2d 276 (1972); Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963). But this is not to say it is equivalent in ultimate As noted above, the Robinson case turned on a particular clause i......
  • Dodds v. Shamer, No. 9
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...that licensee had a property right in the license against other individuals but none against the licensing authority); Weller v. Hopper, 85 Idaho 386, 379 P.2d 792, 797 (1963); Ladt v. Arnold, 583 S.W.2d 702, 703-04 (Ky.Ct.App.), reh'g denied, (1979) (finding that although a liquor license ......
  • Request a trial to view additional results

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