Young v. Board of County Commissioners of Twin Falls County, 7329

• Decision Date: 06 February 1947
• Docket Number: 7329
• Citation: 177 P.2d 162,67 Idaho 302
• Parties: YOUNG et al. v. BOARD OF COUNTY COMMISSIONERS OF TWIN FALLS COUNTY et al
• Court: Idaho Supreme Court

177 P.2d 162

67 Idaho 302

YOUNG et al. v. BOARD OF COUNTY COMMISSIONERS OF TWIN FALLS COUNTY et al

No. 7329

Supreme Court of Idaho

February 6, 1947

Appeal from District Court, Eleventh Judicial District, Twin Falls County; T. Bailey Lee, Judge.

Judgment of dismissal affirmed.

James R. Bothwell, of Twin Falls, for appellants.

The order of the Board of County Commissioners granting the application of respondents and issuing a license to respondent Dale Wildman is an appealable order. I.C.A. § 30-1108; Sullivan v. Board of Com'rs of Lemhi County, 22 Idaho 202, 125 P. 191; Meller v. Board of Com'rs of Logan County, 4 Idaho 44, 35 P. 712; Ada County v. Gess, 4 Idaho 611, 43 P. 71; Feltham v. Board of Com'rs of Good Road Dist. No. 1 of Washington County, 28 Idaho 269, 153 P. 562; First Nat. Bank of Moscow v. Board of Com'rs of Lutah County, 40 Idaho 391, 232 P. 905; Williams v. Board of County Com'rs of Benewah County, 48 Idaho 462 282 P. 867.

Everett M. Sweeley and Harry Benoit, both of Twin Falls, and Frank M Rettig, of Jerome, for respondents.

The order of the Board of County Commissioners granting the application for license to conduct an amusement resort is not an appealable order. I.C.A. Title 53; § 53-304; Section 1508, Idaho Revised Codes; I.C.A. § 30-1108; Section 1950, Idaho Revised Codes; I.C.A. § 30-1111; Section 1953, Idaho Revised Codes; Sullivan v. Board of Commissioners of Lemli County, 22 Idaho 202, 125 P. 191.

The Board did make a determination of the grounds specified in I.C.A. § 53-304 before granting the application for license. The determination thereof was entirely within the discretion of the Board and therefore, not reviewable by the Court. Sullivan v. Board of Commissioners of Lemli County supra; Anderson v. Board of Commissioners of Lemli County, 22 Idaho 190, 125 P. 188; Gilbert v. Canyon County, 14 Idaho 437, 94 P. 1029; Darby v. Pence et al., 17 Idaho 697, 107 P. 484, 27 L.R.A.,N.S., 1194; I.C.A. § 53-304; Section 1508, Idaho Revised Codes.

Holden, Justice. Budge, C. J., and Givens, Miller and Ailshie, JJ., concur.

OPINION

Holden, Justice.

The Eighteenth Session of the Legislature enacted Chapter 219, S.L.1925, p. 401, now Title 53, Chapter 3, Sections 53-301 to 53-307, I.C.A., inclusive. It provided for making applications for and issuing licenses to operate amusement resorts outside of incorporated cities and villages. Section 53-302 provides: [Section 53-302]. "Application For License. -- An application for a license to conduct a public pool or billiard hall, dance hall or amusement resort outside the boundaries of an incorporated city or incorporated village, must be made to the board of county commissioners of the county wherein it is proposed to conduct such business by filing with the clerk of the board such application, at least twenty days before the meeting at which said application may be heard. [Not twenty days before the regular meeting of the board.] The application shall specify the voting precinct within which such pool or billiard hall, dance hall or amusement resort is proposed to be located and said application may be granted or rejected by said board, as hereinafter provided." (Emphasis added.)

March 8, 1946 an application was made under the above-quoted section for a license to operate an amusement resort outside the city of Twin Falls, but in Twin Falls County, signed and verified by Dale Wildman, and filed with the Clerk of the Board of County Commissioners of that county. In the body of the application it stated: "The name of the applicant is Dale Wildman, Tom Callen, O. A. Rambo." And, while the license issued later (April 8, 1946) was to Dale Wildman, neither Callen nor Rambo so named in the application, make any objection. On the day the application was filed the Board set it for hearing for April 5, 1946, being more than twenty days after the application was made.

On the day of the hearing appellants objected to the granting of the application "and filed petitions in protest." At the conclusion of the hearing the matter was continued until the regular session of the Board to meet April 8, 1946. The record discloses that on April 8, 1946, the following proceedings were had:

"Regular April Session

"License For Amusement Resort

Granted

"The Commissioners took under consideration the application of Dale Wildman, Tom Callen and O. A. Rambo, for license to operate an amusement resort, the hearing on which application was held April 5th.

"The objections presented at said hearing and the petitions filed in protest of said amusement resort, were not sufficient to deny granting of the application, according to law as construed by the Prosecuting Attorney. A motion was made by Commissioner Molander that the application of Dale Wildman, Tom Callen and O. A. Rambo for an amusement resort be granted. The motion was seconded by Commissioner Kenyon Green and was unanimously carried."

Thereafter license issued to Dale Wildman and bond given and approved as required by statute.

April 20, 1946, notice of appeal from the action of the Board was filed with the Clerk of the District Court of the Eleventh Judicial District of the State of Idaho, in and for Twin Falls County.

May 1, 1946, respondents moved to dismiss the appeal from the Board of County Commissioners to the District Court, upon the ground that no appeal lies from the action of the Board granting an application for a license to operate an amusement resort. June 8, 1946 judgment of dismissal of the appeal from the action of the Board to the said district court was duly rendered and entered, from which an appeal was prosecuted to this court.

Appellants assign four errors. The first being: "The court erred in holding that the order of the Board of Commissioners granting a license to Respondent Dale Wildman is not appealable, for the reason that said holding is contrary to law."

If no appeal lies from the order of the Board granting the application and license in question, it will not be necessary to consider appellants' specifications 2, 3 and 4. Hence, we will first discuss and determine the question presented by the above-quoted assignment.

At the first session of the Legislature (S.L.1890-91, p. 33) "An Act to regulate the sale of intoxicating liquors" was passed. It did not provide for an appeal from an order of the Board granting an application for a license to sell liquor. In 1907 (S.L.1907, p. 219) the legislature amended the liquor statute, and by the amendment expressly provided for an appeal. The statute as so amended was later carried into and made a part of the 1909 Idaho Revised Codes. As revised Section 3 of the 1907 amendment became Section 1508 of the Revised Codes. Section 1508 provided: "That when application is made for the sale of intoxicating liquors, as in this section provided, for a place outside of any incorporated city, either upon their own motion or upon objections duly filed upon the part of any citizen and resident of the precinct within which it is intended to carry on such sale, the county commissioners shall determine whether or not the granting of such license will be conducive to the best interests of the community in which such saloon or business is proposed to be established, and whether or not such applicant is a fit person to have such license and carry on said business, and whether or not such place of sale and business will likely be conducted in a quiet, orderly and peaceable manner, and should said board of county commissioners determine adversely to the applicant upon any grounds above specified, the license must be refused and the sheriff shall return the amount deposited to said applicant; otherwise the said license may be granted; and such order of the board of county commissioners shall be subject to appeal to the District Court as in the case of other orders of said board." (Emphasis added.)

In enacting Section 1508, supra, the legislature was concerned with the matter of licensing the operation of certain businesses outside incorporated cities, to-wit, saloons, and in enacting Chapter 219, supra, S.L.1925, p. 401, the legislature was also concerned with the matter of licensing the operation of certain businesses outside incorporated cities, to-wit, amusement resorts, so it is not at all surprising the Eighteenth Session (Chapter 219, S.L.1925, p. 401) copied verbatim, Section 1508, supra, substituting "amusement resorts" for "saloons". The pertinent and important fact is, that in copying Section 1508, supra, the legislature excluded the provision therein expressly providing for an appeal, as appears from Section 4, now Sec. 53-304, I.C.A., Chapter 219, supra, later carried into and made a part of I.C.A.1932, Volume 3, Chapter 3. We quote: [Section 53-304] "Discretion of board of county commissioners. -- When application is made for a license, as herein provided, either upon their own motion or upon objection duly filed upon the part of any citizen and resident of the precinct within which it is proposed to carry on such business, the board of county commissioners shall determine whether or not the granting of such license will be conducive to the best interests of the community in which such business is proposed to be established, and whether or not such applicant is a fit person to be licensed to carry on said business, whether or not such business will likely be conducted in a quiet, orderly and peaceable manner, and should said board of county commissioners determine adversely to the applicant, upon any grounds above specified, the license must be refused and the sheriff shall return the amount deposited to said applicant, otherwise said license shall be granted."

Appellants concede the 1925 statute (Chapter 219, supra) does not...