210 P.2d 798 | Idaho | 1949
Lead Opinion
Action by the Clyde Hess Distributing Company and others against Bonneville County and others for a declaratory judgment declaring void county regulation of hours for sale of beer. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *507 On July 7, 1947, the board of county commissioners of Bonneville County made and entered an order entitled "Regulations for the Sale of Beer." The first paragraph of such regulations reads as follows:
"Saturday-midnight to 7 a. m. the following Monday.
"Memorial Day-midnight of previous day to 7 a. m. day following Memorial Day. *509
"Thanksgiving Day from midnight of previous day to 7 a. m. day following Thanksgiving Day.
"Christmas Day from midnight of previous day to 7 a. m.to day following Christmas day."
Thereafter, respondents commenced this action seeking a declaratory judgment determining their rights and declaring said paragraph I of such regulations to be invalid. They further prayed that it be declared and determined that the duly licensed retailers of beer are lawfully entitled to sell, offer for sale, or give away beer, and the same may be consumed, during all hours of every day, except between the hours of one o'clock a. m. and seven o'clock a. m. It appears from the amended complaint that each of the respondents is a holder of a wholesaler's beer license or retailer's beer license for the sale of beer in Bonneville County.
Appellants interposed a general demurrer to the amended complaint which was duly presented to the trial court and overruled and time given the appellants to answer. Thereafter, judgment by default was entered against the appellants for failure to answer. By such judgment it was adjudged and decreed that said paragraph I of the regulations in question is void and unenforceable; and that all duly licensed retailers of beer in the State of Idaho may sell, offer for sale, or give away beer during all hours of every day except between the hours of one o'clock a. m. and seven o'clock a. m. From such declaratory judgment the appellants have duly appealed to this court.
It is not claimed by respondents that paragraph I of such regulations is invalid because the same is unreasonable, oppressive, discriminatory or prohibitory. Respondents assert that such regulation is invalid because it is in conflict with the general law as it prohibits acts permitted by the State.
The general law provides for the sale of beer by licensees. There is no express statute authorizing the sale of beer during any prescribed hours. Section
The right of a licensee to sell beer in further limited by the provisions of Sections
Section
Thus, it appears that the legislature by Section
Both Section
See Quillin v. Colquhoun,
It is urged by respondents that such regulation is void upon the ground that a county has no power to prescribe police regulations effective within a municipality Article
It appears to be conceded that in the exercise of the powers granted by such constitutional provision, a county cannot make police regulations effective within a municipality. See Ex parte Roach,
It also appears to be conceded that county regulations passed under such constitutional grant of power, cannot be enforced *511
in a municipality in a field reserved to municipalities under the constitution, whether such field has been occupied by municipal ordinance or not. People v. Velarde,
It seems to be the position of appellants and Amicus Curiae that the legislature, under its general power, can, by statute, authorize a county to make a police regulation effective within a municipality; and that the legislature has, by statute in the beer law, so empowered counties. They appear to rely greatly upon Anderson v. Board of Commissioners of Lemhi County,
In Anderson v. Board of Commissioners of Lemhi County, supra, the court was considering a mandamus proceeding against a board of county commissioners to compel the issuance of a county license to sell intoxicating liquors within a municipality. The court held that the statutes then in existence required the obtaining of a county license before liquor could be sold either within or without an incorporated city; and that the county commissioners were vested with discretion to either grant or refuse an application for license. Article 12, Section 2, of the constitution was not referred to; and the question of the right of the legislature to authorize a county to make police regulations effective within a municipality was not discussed.
In State v. Robbins, supra, the defendant was selling beer under a municipal license without having obtained a county license. The statutes then existing did not require that a county license be obtained as a condition precedent to the issuance of a city license. In reversing the conviction of the defendant, the court remarked that if the statutes were substantially the same as those considered in Anderson v. Board of Commissioners of Lemhi County, supra, the conviction would be sustained. That is, if the statutes required the procurement of a county license in all instances, such provision would be valid and effective. The court further recognized that a county cannot make police regulations effective within a municipality under the power granted by Article 12, Section 2, of the constitution. It did not discuss or recognize as an exception to this rule, appellants' contention that the legislature, by statute, might empower a county to make police regulations enforceable within a municipality.
Anderson v. Board of Commissioners of Lemhi County, supra, and State v. Robbins, supra, seem to be authority, in this connection, only to the effect that the legislature may make the procurement of a county license a condition precedent to the sale of liquor or beer either within or without a municipality. *512
The position of appellants and Amicus Curiae overlooks the fact that a municipality, under the constitutional provision in question, has authority to make police regulations not in conflict with general laws, coequal with the authority of the legislature to pass general police laws. The legislature can pass a general law effective upon all, but it cannot restrict the constitutional right of a municipality to make police regulations not in conflict or inconsistent with such general law. An attempt by the legislature to grant authority to a county to make police regulations effective within a municipality would be an infringement of such constitutional right of a municipality. A police regulation made by a county is not a general law for a municipality within the meaning of the constitution. Ex parte Knight, supra; State v. Robbins, supra.
Furthermore, we fail to find where the legislature, in the beer law, has, expressly or impliedly, attempted to authorize a county to make police regulations effective within a municipality. By Section
Section
It does not appear from any of the foregoing statutes that the legislature has gone beyond its recognized power and attempted to empower a county to make police regulations enforceable within a municipality.
The fact that the regulation in question does not, in terms, exclude municipalities, does not make it invalid in the territory to which it is applicable. Johnston v. Savidge,
We conclude that paragraph I of the regulations in question is not in conflict with the general law in prescribing hours in which beer may not be sold in addition to those set out in Section
The judgment of the trial court is reversed in so far as it decrees the regulation in question to be void and unenforceable in Bonneville County, exclusive of municipalities; and is affirmed in so far as it decrees that such regulation is void and unenforceable within the limits of incorporated municipalities in Bonneville County. Costs to appellants.
HOLDEN, C.J., KEETON, J., and LOWE, D.J., concur.
Dissenting Opinion
I dissent from the holding that the county ordinance "is without force and effect within the limits of the incorporated municipalities located in such county." Otherwise, I concur.