Winther v. Village of Weippe

• Decision Date: 31 July 1967
• Docket Number: No. 9933,9933
• Citation: 430 P.2d 689,91 Idaho 798
• Parties: Corey WINTHER and Ellen Winther, husband and wife, Plaintiffs-Respondents, v. VILLAGE OF WEIPPE, a municipal corporation of the State of Idaho, W. H. Durant, Chairman; and Jess Johnstun, Louis E. Snyder, Robert D. Sharp, and Elwin L. Hutchins, members of the Board of Trustees of the Village of Weippe, a municipal corporation of the State of Idaho, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 689

430 P.2d 689

91 Idaho 798

Corey WINTHER and Ellen Winther, husband and wife, Plaintiffs-Respondents, v. VILLAGE OF WEIPPE, a municipal corporation of the State of Idaho, W. H. Durant, Chairman; and Jess Johnstun, Louis E. Snyder, Robert D. Sharp, and Elwin L. Hutchins, members of the Board of Trustees of the Village of Weippe, a municipal corporation of the State of Idaho, Defendants-Appellants.

No. 9933.

Supreme Court of Idaho.

July 31, 1967.

Ware, Stellmon & O'Connell, Lewiston, for appellants.

Jerry V. Smith, Lewiston, for respondents.

SMITH, Justice.

Respondents (plaintiffs), by this declaratory judgment action, seek to have adjudged invalid as to them Ordinance No. 8, enacted February 26, 1965, by the village of Weippe, the ordinance reading 'Not more than two (2) premises shall be licensed for the retail sale of beer for consumption on the premises within the limits of the Village.'

The trial court entered judgment adjudging the ordinance to be unconstitutional and void in its application to respondents, 'as a deprivation of the property of the plaintiffs (respondents) without due process of law, and as an unreasonable exercise of police power of the Village of Weippe'; also adjudging that respondents, as of January 13, 1965, were entitled to issuance to them of a village license for the sale of beer at retail upon their premises known as the Lucky Inn situate in the village, and requiring appellants to issue such a license upon payment of the requisite fees; also adjudging that respondents' entitlement to such license was not affected by the enactment of village Ordinance No. 8. Appellants have appealed from such judgment.

Respondents' property, the Lucky Inn, the subject of this action, situate within the corporate limits of the village of Weippe, was licensed for the retail sale of beer by Clearwater County and operated by respondents continuously since 1942 until the year 1964 when they sold the Inn to James Griner under a sale and purchase contract. Mr. Griner obtained a beer license from Clearwater County for the year 1964 covering the premises. Mr. Griner however, defaulted under his contract, making it necessary for respondents to repossess the Inn, whereupon they attempted to restore their enterprise.

January 13, 1965, respondents applied for a Clearwater County license for the retail sale of beer covering the premises of Lucky Inn. Ten days later the county approved such application, the license to be delivered upon issuance of a beer license by the village.

The village of Weippe became incorporated as a village December 1, 1964. December 16, 1964, the village enacted its Ordinance No. 3 requiring a municipal license for retail beer sales within the village. January 13, 1965, respondents made due application to the village for a retail beer license for consumption of beer on the premises of the Lucky Inn. Subsequently, the owners of two other premises in the village-the Logger's Lodge and the Elk Horn Lodge-applied for and obtained during the month of January, village licenses for the retail sale of beer on the premises.

February 4, 1965, the village, through its clerk, notified respondents' attorney by letter that respondents' beer license application was denied, and returned respondents' proffered license fee. The letter did not contain a statement of the grounds of denial, as required in a licensing authority's determination to refuse issuance of a license. I.C. §§ 23-1044, 1042, 1038.

February 26, 1965, the village enacted its Ordinance No. 8, hereinbefore referred to, allowing the licensing within the village of only two premises.

Finally May 5, 1965, respondents received a letter from the chairman of the board of trustees of the village, denying respondents' application. The letter informed respondents:

'* * * that your application must be denied for the following reasons: (1) The premises to be licensed do not meet minimum health and safety requirements; (2) There has not been a beer license issued by Clearwater County, Idaho, for the premises for which your application for a Village license was made; (3) Ordinance No. 8 of the Ordinances of the Village of Weippe provides that there shall be issued no more than two (2) licenses for the sale of beer within the Village and there are presently two such licenses issued. * * *'

Respondents shortly thereafter commenced this declaratory judgment action.

Appellants preliminarily challenge respondents' right to proceed by way of a declaratory judgment action, asserting that Idaho Code, Tit. 23, ch. 10, provides for judicial review of a municipal licensing authority's denial of a beer license. Appellants argue that respondents' action is in the nature of a proceeding to contest the village's denial of respondents' license application, and that any such action must conform strictly to the statutory procedures of Title 23, particularly the procedure for review by the district court of the village's determination of denial of the license application. Appellants contend in effect Title 23 provides the exclusive and only remedy which may have been available to respondents.

Respondents point to I.C. § 10-1202 contained in the Uniform Declaratory Judgment Act, as authorizing their action at bar, which reads:

'Any person * * * whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.' (Emphasis supplied)

I.R.C.P. 57 also contains the following provision:

'* * * The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. * * *'

Thus, although the allegations of the pleadings may indicate that an alternative statutory or common law action may lie, the trial court should not dismiss a declaratory judgment action on that ground alone. Temperance Insurance Exchange v. Carver, 83 Idaho 487, 365 P.2d 824 (1961); 3 Barron & Holtzoff, Federal Practice and Procedure (Rev. ed. 1958) § 1266.

The Uniform Declaratory Judgment Act which includes I.C. § 10-1202, was enacted by the 1933 Legislature, S.L.1933, ch. 70. I.C., Tit. 23, ch. 10, regulating the sale of beer was originally enacted by the 1935 Legislature, S.L.1935, ch. 132, although the present procedure under the act providing for review by the district court, I.C. § 23-1039, and providing appeal to the Supreme Court, I.C. § 23-1045, was enacted by the 1961 Legislature, S.L.1961, ch. 299.

The later specific legislation, providing for appellate review of a determination of denial of an application for a beer license, in nowise expressly or impliedly abrogated the therefore existing general remedy afforded by the Uniform Declaratory Judgment Act. Nor does appellant contend that the later legislation abrogated the former legislation.

50 Am.Jur., Statutes, § 597, which discusses the principles here under consideration announces the following well supported rule:

'* * * where different remedies are provided by a special act and an earlier general act, if the remedy provided by the later act is not incompatible with the remedy provided by the earlier general law, both acts may stand.'

We therefore hold that the appellate remedies afforded by I.C. §§ 23-1039 and 23-1045 are not exclusive and that appellant properly pursued the remedy provided by I.C. § 10-1202.

Moreover, the district court, being a court of general jurisdiction, Idaho Const., Art. 5, § 20, had jurisdiction to dispose of all the relevant issues in this action wherein respondents contested the validity of the village's Ordinance No. 8. As a corollary, if the ordinance is unconstitutional in its application to respondents, then it follows that the district court correctly adjudged respondents to be entitled to the issuance of the beer license by the village.

The crux of respondents' action is the challenge that Ordinance No. 8, which restricts the number of retail beer licenses within the village of Weippe, is unconstitutional in its application to respondents in that it would prevent the issuance of a license to them.

It is recognized that Ordinance No. 8 limiting the number of beer licenses within the village bears a reasonable relation to the public health, morals, safety and general welfare-the legitimate objects of the state's police powers-in that the regulation of the sale and conseumption of liquor or beer is within the ambit of permissible state action; and such regulation reasonably comprehends a limitation on the number of retail outlets for alcoholic beverages. See, e. g., Oak Park National Bank v. Village of Broadview, 27 Ill.2d 151, 188 N.E.2d 679 (1963); Allen v. Nebraska Liquor Control Commission, 179 Neb. 767, 140 N.W.2d 413 (1966); Ketner v. Clabo, 189 Tenn. 260, 225 S.W.2d 54 (1949); Anno. 124 A.L.R. 825 (1940); Anno. 163 A.L.R. 581 (1946). See also cases cited in Gartland v. Talbott, 72 Idaho 125, 130, 237 P.2d 1067, 1070 (1951). In Gartland v. Talbott, supra, this court, in ruling upon the validity of a county limitation upon the number of retail beer licenses for the area known as Lewiston Orchards, said:

'A limitation on the number of licenses which will be issued for the sale of intoxicants within a municipality or within a given area is not of itself prohibitory, and is recognized as a legitimate regulation tending to promote public health, safety and welfare within the police power.' 72 Idaho at 130, 237 P.2d at 1070.

Respondents contend however, that Ordinance No. 8, by effectively prohibiting the retail sale of beer at the Lucky Inn, deprives them of their property rights without due process, in violation of the United States Constitution, Fourteenth Amendment, and the Idaho Constitution, Art. I, §§ 13 and 14.

Respondents place reliance upon the 'g...