Weller v. Hopper

Decision Date11 March 1963
Docket NumberNo. 9222,9222
Citation85 Idaho 386,379 P.2d 792
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.
CourtIdaho Supreme Court

Frank L. Benson, Atty. Gen., R. LaVar March, Asst. Atty. Gen., Boise, for appellants.

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

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 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 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. But since respondent did have a liquor 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 held a statutory enactment to be unconstitutional, which attempted to authorize the State Board of Dry Cleaners to establish minimum price schedules for cleaning, dyeing and pressing. The Court said:

'If the statute can be sustained as constitutional it is because it is a reasonable exercise of the police power of the state. Under the law generally that power extends to legislation enacted to promote the public health, safety, morals and general welfare. It has rightly been said that 'Such [police] regulations may validly be imposed if they constitute a reasonable exertion of governmental authority for the public good. If there is a proper legislative purpose, a law enacted to carry out that purpose, if not arbitrary nor discriminatory, must be upheld by the courts.' [Citation.] However, in the exercise of the police power the law places limits on the discretion of the legislature. Whether there has been a reasonable exercise of this power is a court question.'

While a legislative act is presumed to be constitutional, Rich v. Williams, 81 Idaho 311, 341 P.2d 432, whether it is reasonable and not arbitrary or discriminatory is a question of law for determination by the court, State v. Rorvick, 76 Idaho 58, 277 P.2d 566; Christian v. La Forge, 194 Or. 450, 242 P.2d 797; General Electric Company v. Wahle, 207 Or. 302, 296 P.2d 635; Neary v. Town of Los Altos Hills, 172 Cal.App. 721, 343 P.2d 155; Remington Arms Company v. Skaggs, 55 Wash.2d 1, 345 P.2d 1085; 16 C.J.S. Constitutional Law, § 195. See also White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778. For a scholarly discussion of the police power of a state, see Rowe v. City of Pocatello, 70 Idaho 343, 349-350, 218 P.2d 695 (1950).

Appellants assign error committed by the trial court in ruling that the provisions of I.C. § 23-910, subd. d are unconstitutional as applied to respondent in that such provisions deny him equal protection of the laws. U.S.Const. 14th Amendment; Idaho Const. Art. I, § 2.

Respondent contends that the legislative classification must meet the test, that it be based upon legitimate grounds of difference between the persons classified, and have some direct, real and substantial relation to the public object sought to be served. He argues that there is no difference between a felon, licensed to sell intoxicating liquor at the time of his conviction, and a felon not licensed to sell intoxicating liquor. He contends that I.C. § 23-910, subd. d as applied to this case is an arbitrary and unreasonable exercise of the police power of the state, violative of the constitutional protection of the 'equal protection' clause.

Appellants contend that those who are licensed are in a position of trust, and that any violations of that trust indicate disregard for the privilege granted. They argue that a violation of the trust granted is indicative of the lack of the necessary qualifications contemplated by the legislature; that equal protection and security are given to all under like circumstances, and that therefore respondent was not denied equal protection of the law.

In State v. Crosson, 33 Idaho 140, 190 P. 922, appellants were convicted of violating C.S., §§ 2439 and 2440 which attempted to prohibit common carriers, as classified by C.S., § 2380, subsec. 3., from carrying freight or passengers, or both, until they first had obtained licenses, and had given bond; C.S., § 2440 further provided that any person operating as a common carrier, as defined in C.S., § 2380, subsec. 3., without...

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