Zeigler v. Pickett, Co.

• Decision Date: 29 September 1933
• Docket Number: 1823
• Citation: 46 Wyo. 283,25 P.2d 391
• Parties: ZEIGLER v. PICKETT, Co. and Pros. Atty
• Court: Wyoming Supreme Court

25 P.2d 391

46 Wyo. 283

ZEIGLER v. PICKETT, Co. and Pros. Atty

No. 1823

Supreme Court of Wyoming

September 29, 1933

Reserved Constitutional Question from District Court, Laramie County; Sam M. Thompson, Judge.

Action under the Declaratory Judgment Act by Jacob Ziegler against John Pickett, as County and Prosecuting Attorney of Laramie County. On reserved constitutional questions from the district court. Remanded for proceedings consistent with opinion.

Case remanded.

For the plaintiff there was a brief by C. R. Ellery and Bard Ferrall of Cheyenne, Wyoming, and oral arguments by Mr. Ellery and Mr. Ferrall.

The cause is here on a reserved question arising in an action brought to obtain a declaration concerning the constitutionality of Enrolled Act No. 40, enacted by the twenty-second legislature, prohibiting the advertisement for sale of non-intoxicating beverages. The title of the act is restrictive and the subject of advertising is not referred to; the title is therefore insufficient to support the section prohibiting advertising. Article III, Section 24 Const. 25 R. C. L. 866; Sutter v. Co. (Ill.) 120 N.E. 562; In re Breene (Colo.) 24 P. 3; People v. C. B. & Q. R. R. Co. (Ill.) 125 N.E. 310; Bradley Co. v. Muzzy (Wash.) 103 P. 37; Board v. Bradley (Ky.) 222 S.W. 518; Hobbs v. County (Ind.) 144 N.E. 526; Kasch v. Anders (Ill.) 149 N.E. 275; Board v. Ikner (Ala.) 100 So. 827. The title does not indicate that advertising is prohibited by the statute the restrictive feature is therefore unconstitutional and void. In re Fourth Judicial District 4 Wyo. 133; Commissioners v. Stone, 7 Wyo. 280; State v. Tobin (Wyo.) 226 P. 681; State v. Maroun (La.) 55 So. 472; In re Hauck (Mich.) 38 N.W. 269; McCabe v. Burnside Tp. (Mich.) 148 N.W. 197; State v. Rawlings (Mo.) 134 S.W. 530; State v. Barkley (La.) 70 So. 336; Gerding v. Board (Idaho) 90 P. 357.

For the defendant there was a brief by Ray E. Lee, Attorney General, O. O. Natwick, Deputy Attorney General and W. C. Snow, Assistant Attorney General, and oral argument by O. O. Natwick.

The constitutional provisions relied on by plaintiff must be liberally construed. State v. Wyckoff, 31 Wyo. 500; Farm Inv. Co. v. Carpenter 9 Wyo. 110; In re Fourth Judicial District, 4 Wyo. 133; Koppala v. State 15 Wyo. 398; Board v. Woods, 18 Wyo. 317; State v. Forsyth, 21 Wyo. 359; State v. Tobin, 31 Wyo. 355; Tucker v. State, 35 Wyo. 430. If the limited construction urged by plaintiff is to be adopted then all of Chapter 92, Laws 1933, except Sections 1, 2, 8 and 9, is void. Sections 3, 4, 5, 6, and 7 of the Act are so related that they must stand or fall together.

C. R. Ellery and Bard Ferrall in reply.

We feel that the cases of State v. Wyckoff, 31 Wyo. 500 and Farm Inv. Co. v. Carpenter, 9 Wyo. 110, are not in point for the reason that titles involved in each, were general in character. The position of a person selling non-intoxicating beverages under a license is as good as a person selling without a license, so far as his assertion of the invalidity of a penal provision is concerned. Tobin v. State, 36 Wyo. 368; Cooley's Const. Lim. Vol. 1, Page 382. A person having complied with the provisions of an act is not estopped to assert the invalidity of penal provisions thereof. Article III, Section 24, Const.; U. S. v. Co. 46 F.2d 354; Morton v. Shelby Co. (Tenn.) 6 S.Ct. 1121; City v. Dameron (La.) 86 So. 716; Greenlund v. Fenner, 216 N.Y.S. 357; O'Brien v. Wheelock, 184 U.S. 450; State v. Finley (Mo.) 172 S.W. 1162; Board v. Lewis (Ga.) 102 S.E. 24; Sutter v. Co. (Ill.) 120 N.E. 562; Doe v. Jones (Ill.) 158 N.E. 703. This cause should be decided under the same rules that should be followed if plaintiff had been arrested, tried and convicted for advertising the sale of beverages lawfully sold under the Act. Holly Sugar Co. v. Fritzler (Wyo.) 296 P. 206; Sigal v. Wise (Conn.) 158 A. 891; Green v. Co. (N. C.) 167 S.E. 38; Wash Co. v. Moore (Mich.) 229 N.W. 618; Wingate v. Flynn, 249 N.Y.S. 352; Pathe v. Cobb, 195 N.Y.S. 661. Defendant failed to cite authorities on the question of estoppel.

Ray E. Lee, Attorney General, O. O. Natwick, Deputy Attorney General and W. C. Snow, Assistant Attorney General by supplementary brief.

One who has received the benefits conferred by a statute will not be permitted to attack the validity thereof. Hirsh v. Block, 267 F. 614; Eliason v. Wilborn, 167 N.E. 101, 74 L.Ed. 962; Frost v. Comm. 73 L.Ed. 483; I & G. N. R. Co. v. Anderson County, 62 L.Ed. 807; Lumber Co. v. Comm. (Wisc.) 142 N.W. 187; Provo City v. Shurtliff (Utah) 5 P. 302; State v. Smart, 22 Wyo. 154; Buck v. Kuykendall (Wash.) 69 L.Ed. 623; Railway v. Ellen (S. C.) 78 S.E. 963; Greene County v. Lydy (Mo.) 172 S.W. 376; Pierce Oil Corp. v. Co. 66 L.Ed. 855. The statute should be given a broad and liberal construction. City of Keokuk v. Dressell, 47 Iowa 597. A general power to prohibit is sufficient to authorize partial prohibition. Gunnarssohn v. City, 92 Ill, 569; Cantini v. Tillman, 54 F. 969. The word "prohibit" is not necessarily used in a limited sense. Hadfield v. Lundin (Wash.) 168 P. 516; Weaver v. Comm, 40 Wyo. 477; Ramsey v. State (Texas) 250 S.W. 674. The word "Prohibition" includes power to restrict and control. McPherson v. State, 90 N.E. 610. The whole law must stand or the entire law must fail. 6 R. C. L. 100. When a part of a statute is declared unconstitutional, the presumption in favor of constitutionality will not obtain as to the remaining portion. 12 C. J. 227. U. P. R. R. v. Atchison, etc., 28 Kansas 453. We believe that plaintiff's contentions are sufficiently answered in the cases of State v. Smart, supra. To the same effect and sustaining our contention herein is the case of Provo v. Shurtliff, supra.

KIMBALL, Chief Justice. BLUME and RINER, J. J., concur.

OPINION

KIMBALL, Chief Justice.

This is an action under the declaratory judgment act (§§ 89-2401 to 89-2416, R. S. 1931), and is here under section 89-5001 on a reserved question as to the constitutionality of a portion of an act passed by the last legislature.

The act (Ch. 92, Laws of 1933) is entitled: "AN ACT prohibiting the manufacture, possession, sale, transportation for sale or keeping for sale of intoxicating liquors for beverage purposes within the State of Wyoming, providing a penalty therefor, and defining intoxicating liquors."

Sections one and two are as follows:

Sec. 1. "The manufacture, possession, transportation, importation or exportation or keeping for sale, or sale of intoxicating liquor for beverage purposes within the State of Wyoming is prohibited."

Sec. 2. "The word 'liquor' or the phrase 'intoxicating liquor' shall be construed to include alcohol, brandy, whisky, rum, gin or any other spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing more than 4.00 per centum of alcohol by volume which are fit for use for beverage purposes; Provided, that the foregoing definition shall not extend to de-alcoholized wine nor to any beverage or liquor produced by the process by which beer, ale, porter or wine is produced, if it contains not to exceed 4.00 per centum of alcohol by volume."

Section 3 provides that cities and towns may regulate or prohibit the sale of "beverages permitted by this act to be sold." Certain owners or keepers of hotels, restaurants, breweries and grocery stores may obtain licenses to sell the beverages, but only keepers of hotels and restaurants may be authorized to permit the beverages to be consumed on the premises.

Section 4 prescribes minimum license fees, and forbids sales except under license.

Section 5 provides for licenses by boards of county commissioners authorizing sales outside of cities and towns. Such licenses are to be issued only to freeholders of good moral character, and may be revoked by the board for any act of the licensee which may seem to the board "to be incompatible with the aim and purpose of this act, namely: to promote true temperance." No license under this section shall be issued for sales in any building where public dancing is permitted, nor to any person interested in a dance hall conducted in connection with the place where the sales are to be made.

Section 6 provides that:

"No person selling beverages under this Act shall advertise in any manner, shape or form that such beverages are kept or sold by him, or sell, barter, give away, or in any manner dispose of by himself or any person in his behalf or in behalf of another or permit to be sold, bartered or given away or in any manner disposed of to any person under the age of twenty-one years any beverages permitted to be sold by this Act."

Section 7 provides for the disposition of license fees. Section 8 exempts physicians and others from the operation of the act. Section 9 prescribes the penalties for violating the provisions of the act.

The petition shows that plaintiff, as the owner and keeper of a grocery store in Cheyenne, has obtained and is the lawful holder of a license under which he is authorized to sell, and is selling, the non-intoxicating beverages referred to in section 2 of the above act. He alleges that he is and will be unable to conduct the sales of such beverages with efficiency and profit unless he is permitted to advertise that the beverages are kept and sold by him. He then alleges that the first clause of section 6 which forbids advertising, is void because it is in contravention of the provisions of section 24, article 3 of the state constitution. It is then alleged that the defendant, county and prosecuting attorney, asserts that said void provision of the law is valid, and threatens to prosecute plaintiff if he advertises he has such beverages for...