FLETCHER, RESPONDENT, v. PAIGE ET AL., APPELLANTS.
No. 8973
Supreme Court of Montana
Submitted April 24, 1950. Decided June 30, 1950.
Rehearing denied July 24, 1950.
220 Pac. (2d) 484
As above noted the information coming to the sheriff about defendant‘s conduct was given to him over the telephone. There was no occasion or necessity to have the facts repeated at the time Mr. Dowlin arrived at the ranch. The information may come from any credible person. State ex rel. Brown v. District Court, 72 Mont. 213, 232 Pac. 201; State ex rel. Wong You v. District Court, 106 Mont. 347, 78 Pac. (2d) 353; State ex rel. Kuhr v. District Court, 82 Mont. 515, 268 Pac. 501. There was ample evidence upon which the jury could find that Mr. Dowlin had reasonable cause to believe that defendant had assaulted his wife with a loaded firearm within the meaning of section 94-6003 sufficient to make an arrest without a warrant. Mr. Dowlin concedes that he had no valid warrant but pretended to have one in order to get the defendant to point his gun in some other direction.
The fact that defendant told a plausible story about the Texans is unimportant. The jury had and has the right to reject that story as it did in this trial and this notwithstanding defendant‘s military record so carefully stressed in the majority opinion.
I think the most this court should do is to remand the case for a new trial.
Messrs. Loble and Loble, Mr. Gene A. Picotte, Helena, for respondent. Mr. Henry Loble, Helena, argued orally.
MR. JUSTICE METCALF:
On December 23, 1949, the Montana liquor control board directed a letter to all Montana licensed brewers and beer wholesalers containing the following paragraph: “The board directs that from and after April 1, 1950, there will be no further advertising of beer by electric or illuminated sign, contrivance or device or on any hoarding signboard, billboard or other like place in public view. The date of April 1, 1950 has been fixed so that no undue hardship will be worked by a demand of immediate compliance. Advertising by other legitimate means in accordance with the regulations of the board is, of course, not affected.”
The board‘s letter quoted
In this action the plaintiff is seeking a declaratory judgment as to the validity of the above order of the Montana liquor control board. The plaintiff filed his amended complaint on February 8, 1950, the defendant board answered, and the plaintiff replied. Thereafter both parties moved for a judgment on the pleadings. Judgment was rendered for the plaintiff and the defendant liquor control board has appealed from that judgment.
The State Liquor Control Act.
In section 2 of Chapter 105, Laws of 1933, the word “liquor” was defined by subsection (i) as follows: “‘Liquor’ or ‘Liquors’ means and includes any alcoholic, spirituous, vinous, fermented, malt or other liquor, which contains more than one per centum (1%) of alcohol by weight.”
“Beer” was defined in the companion Montana Beer Act by section 2 of Chapter 106, Laws of 1933, in subsection (b): “‘Beer’ means any beverage obtained by alcoholic fermentation of an infusion or decoction of barley, malt and hops, or of any other similar products in drinkable water.”
Those statutes are now
“No person within the state shall * * *
“(3) exhibit or display, or permit to be exhibited or displayed, any advertisement or notice of or concerning liquor by an electric or illuminated sign, contrivance or device or on any hoarding signboard, billboard or other like place in public view or by any of the means aforesaid, advertise any liquor. This subsection shall not apply to any advertisement respecting beer or malt liquor on a brewery or premises where beer or malt liquor may be lawfully stored or kept by a brewer under the law; provided that such last mentioned advertisement has first been permitted in writing by the Board and then subject to the directions of the Board; * * *”
In 1933, as we have seen, the term “liquor” included all malt
Where a statute directs that a thing may be done in one manner it ordinarily implies that it shall not be done in any other manner. In providing that signs advertising beer or malt liquor can be placed upon a brewery or premises where beer or malt liquor was lawfully stored or kept, it logically follows that beer cannot be advertised by signboard or billboards in any other place. This is merely an application of the familiar maxim of expressio unius est exclusio alterius.
The question now is as to the effect of the amendment to
Did the legislature by this amendment qualifying the definition of liquor, intend to permit the signboard or billboard advertising of beer on places other than breweries or premises where beer was stored?
If Chapter 209, Laws of 1949, has by implication permitted the signboard or billboard advertising of beer, then by implication
“Every word, phrase, clause, or sentence employed is to be considered and none shall be held meaningless if it is possible to give effect to it.” Campbell v. City of Helena, 92 Mont. 366, 384, 16 Pac. (2d) 1, 4; Mid-Northern Oil Co. v. Walker, 65 Mont. 414, 428, 211 Pac. 353; In re Wilson‘s Estate, 102 Mont. 178, 193, 56 Pac. (2d) 733, 105 A. L. R. 367.
The general rule is that for a subsequent statute to repeal a former statute by implication, the previous statute must be wholly inconsistent and incompatible with it. United States v. 196 Buffalo Robes, 1 Mont. 489, approved in London Guaranty & Accident Co. v. Industrial Accident Board, 82 Mont. 304, 309, 266 Pac. 1103, 1105. The court in the latter case continued: “The presumption is that the Legislature passes a law with deliberation and with a full knowledge of all existing ones on the same subject, and does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable. State ex rel. Aachen & Munich Fire Ins. Co. v. Rotwitt, 17 Mont. 41, 41 Pac. 1004; and Jobb v. County of Meagher, 20 Mont. 424, 51 Pac. 1034.”
It will not be presumed that a subsequent enactment of the legislature intended to repeal former laws upon the subject when such former laws were not mentioned. “It is our duty to reconcile the statutes if it appears possible to do so, consistent with legislative intent. We bear in mind the rule that an implied repeal results only from an enactment, the terms and necessary operation of which cannot be harmonized with the terms and necessary effect of an earlier act. Lewis’ Sutherland on Statutory Construction, 2d Ed., sec. 247; State v. Miller, 69 Mont. 1, 220 Pac. 97; In re Naegele, 70 Mont. 129, 224 Pac. 269.” London Guaranty & Accident Co. v. Industrial Accident Board, supra.
We are admonished by statute,
The 1933 legislature defined beer and liquor substantially as it is defined by Chapter 209, Laws of 1949. The actual effect of Chapter 209, Laws of 1949, is to clarify the distinction between liquor and beer that was already present in the law because of the relationship between the Montana Beer Act and the State Liquor Control Act.
In view of the original legislative intent to prohibit billboard or signboard advertising of beer and malt liquors and the failure of the thirty-first legislative assembly to specifically repeal the subsection indicating that intent, it cannot be said that a general clarifying definition by a subsequent legislature will by implication permit what has been expressly forbidden. Lerch v. Missoula Brick & Tile Co., 45 Mont. 314, 320, 123 Pac. 25, Ann. Cas. 1914A, 346; Johnson v. Meagher County, 116 Mont. 565, 155 Pac. (2d) 750.
“The meaning of a given term employed in a statute must be measured and controlled by the connection in which it is employed, the evident purpose of the statute, and the subject to which it relates.” Northern Pac. Ry. Co. v. Sanders County, 66 Mont. 608, 612, 214 Pac. 596, 598; State ex rel. Federal Land Bank of Spokane v. Hays, 86 Mont. 58, 63, 282 Pac. 32; Murray Hospital v. Angrove, 92 Mont. 101, 116, 10 Pac. (2d) 577; State ex rel. Krona v. Holmes, 114 Mont. 372, 136 Pac. (2d) 220.
Contention was made by the defendant Montana liquor control board that Chapter 209 was void and invalid because of a
It is suggested that
The Supreme Court of the United States has included liquor among the special category of articles which are subject to exceptional control by the legislative branch and has sustained controls and regulations “which would have been repugnant to the great guarantees of the Constitution but for the enlarged right possessed by government to regulate liquor.” Clark Distilling Co. v. Western Md. Ry. Co., 242 U. S. 311, 332, 37 S. Ct. 180, 187, 61 L. Ed. 326, L. R. A. 1917B, 1218. “In other words, the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guarantees of the Constitution, embrace.” See also Ziffrin, Inc. v. Reeves, 308 U. S. 132, 60 S. Ct. 163, 84 L. Ed. 128; Crowley v. Christensen, 137 U. S. 86, 11 S. Ct. 13, 34 L. Ed. 602; Texas Liquor Control Board v. Continental Distilling Co., Tex. Civ. App., 203 S. W. (2d) 288.
Freeman v. Board of Adjustment, 97 Mont. 342, 34 Pac. (2d) 534, while laying down the abstract proposition quoted in the dissent, sustained the validity of a zoning ordinance as a legitimate regulation in the public interest.
Prohibition of liquor or beer advertising as a reasonable regulation has been uniformly sustained. For example, see Commonwealth v. Anheuser-Busch, Inc., 181 Va. 678, 26 S. E. (2d) 94, and Bird & Jex Co. v. Funk, 96 Utah 450, 85 Pac. (2d) 831. The Federal Government regulates liquor advertising,
See “Controls over Labelling & Advertising of Alcoholic Beverages” by Russell in 7 Law & Contemporary Problems 645.
The cause is reversed and remanded with directions to dismiss the complaint.
MR. JUSTICE METCALF
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICES ANGSTMAN and BOTTOMLY concur.
MR. JUSTICE FREEBOURN (dissenting):
I believe the judgment of the lower court should be sustained. In my opinion
Rehearing denied July 24, 1950.