94 P. 445 | Idaho | 1908
This is an original application in this courtf' for a writ of mandate, against the board of commissioners of the county of Latah. The petitioners allege, in substance,.
To this petition the defendant filed a demurrer upon the ground that the same did not state facts sufficient to constitute a cause of action. There .is also filed in this case and used on the hearing, a stipulation, which, among other things recites, “that the said board of county commissioners, upon their own motion, made and entered an order rejecting the said application for license, setting forth as their reason, that the granting of said license would not be conducive to the best interests of the community in which said saloon or business is proposed to be established.”
It will thus be seen that there is but one question presented in this case, and that is, whether or not the board of
The law of this state in relation to granting a license to sell intoxicating liquors is in a very unsatisfactory condition, especially with reference to a license to sell liquor not to be drank on the premises where sold. But the power now vested by law in the board of county commissioners, to grant or refuse a license, we think is plain and decisive. The first act of the legislature of this state dealing with the subject of granting a license to sell intoxicating liquors by the board of county commissioners was approved February 6, 1891, and makes it unlawful for any person to sell spirituous, malt or fermented liquors or wines to be drank on, in or about the premises where sold, without procuring a license and giving a bond.
Sec. 2 of this act requires application to be made to the •board of county commissioners, and provides that they shall grant a license upon giving the bond required by the act and paying the fee provided by the act to the sheriff of said county.
This act expressly repealed sec. 1648, Rev. Stat., which authorized the tax collector to issue a license to persons desiring to sell intoxicating liquors in less quantities than one quart.
On March 9, 1895, the legislature passed an act purporting to amend sec. 4 of the act of February 6, 1891, but which, in fact, made no change whatever in said section, and also adding thereto what was designated as sec. 23, providing for issuing a license to persons selling liquors not to be drank in, on or about the premises where sold. This added section, however, said nothing whatever as to whom the money should be paid for the license, whether a bond shall be required, or by whom said license should be issued.
On February 2, 1899, the legislature passed another act which is practically a re-enactment of the act of March 9, 1895. On March 4,1901, the legislature passed an act amend
Sec. 23, as found in the acts of 1895, 1899 and 1901, in relation to issuing a license for the sale of intoxicating liquors not to be drank in, on or about the premises where sold, says nothing whatever as to the proceedings required to secure such license, or by whom such license shall be issued. But, inasmuch as no provision is made for issuing a license for the sale of intoxicating liquors, except by the board of county commissioners, it was evidently the intention of the legislature after sec. 1648 had been repealed by the act of 1891, and a law was passed at that session in relation to granting license for the sale of intoxicating liquors, to vest in the board of county commissioners the exclusive authority to grant licenses for the sale of intoxicating liquors. We are forced to this conclusion for the following reasons: First, because the section in relation to a license for the sale of intoxicating liquor not to be drank in, on or about the premises where sold is added to and made a part of the act dealing with the subject of granting a license for the sale of intoxicating liquors to be drank on the premises where sold. Second, that if this be not so, the section in relation to a license for the sale of intoxicating liquors not to be drank in, on or about the premises where sold would leave the issuing of such license without anyone having authority to issue the same. Unless the board of county commissioners had authority to issue the license, then no one had, and unless the license fee was payable to the sheriff as provided in the sec
Sec. 2 of the act of 1891, which was not in any way amended by either of the acts of 1895, 1899 or 1901, vested the authority to issue a license for the sale of intoxicating liquors, to be drank on the premises where sold, in the board of county commissioners. This authority, by the amendment of 1907, is vested in the board of county commissioners, and in that respect no change is made in the act of 1891. See. 3 of the act of 1891, which likewise was not amended by the acts of 1895, 1899 or 1901, provides for paying the license fee to the sheriff and the giving of the bond, and, among other things, provides: “That when an 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 stall determine whether or not the granting of such license
Looking at sec. 23 as found in the acts of 1895, 1899 and 1901, we find that this is the section which deals entirely with the sale of intoxicating liquors not to be drank in, on or about the premises where sold. This section was added to the law of 1891 by the act of March 9, 1895, the title of which reads:
“To amend section 4 and 23 of an act to regulate the sale of intoxicating liquors, approved February 6, 1891, and adding section 23 thereto.”
Sec. 23 of the act of 1891, which this act purports to amend, provides for the time the act shall take effect, and in the body of the act of 1895 it provides that sec. 23 of said act is amended to read as follows:
*360 “See. 24. This act shall take effect and be in force on the first day of July, 1895.” Then follows “Insert in said act the following: Sec. 23.” Then follow the provisions for a license for the sale of intoxicating liquors not to be drank in, on or about the premises where sold.
The title to the act of 1899 reads: “An Act relating to liquor licenses; and amending sections 4 and 23 of an act entitled ‘An Act to regulate the sale of intoxicating liquors, approved February 6, 1891, and adding section 23 thereto. ’ ’ ’
Thus it will be seen that this act ignores entirely the Act of 1895. In the body of the act of 1899 it provides:
“Sec. 2. Section 23 of said Act is amended to read as follows :
“Section 23. This Act shall take effect and be in force on the first day of July, 1895.”
Then follow the provisions for a license for the sale of intoxicating liquors not to be drank in, on or about the premises where sold. This act then amends see. 23 of the act of 1891, which fixed the time of the taking effect of that act, by making the act of 1899 take effect on July, 1895; followed by the provisions with reference to the sale of liquor not to be drank in, on or about the premises. The act of 1899, however, while it says in the title that sec. 23 is added, yet in the body of the act it nowhere provides for the adding of see. 23, but does provide for amending see. 23 as above stated. The title, therefore, of the act is broader than the act itself, in that the title purports to add a section as 23, while the body of the act does not provide for such addition. The title of the act of 1901 reads as follows:
“An Act relating to liquor licenses and amending sections 4 and 23 of an Act entitled, ‘An Act to regulate the sale of intoxicating liquors, ’ Approved February 6, 1891, as amended by an Act entitled, ‘An Act relating to liquor licenses and amending sections 4 and 23 of an Act entitled, “An Act to regulate the sale of intoxicating liquors, ’ ’ approved February 6, 1891, and adding section 23 thereto,’ passed February 2, 1899.”
“Section 23 of said Act, as amended February 2, 1899, is hereby amended to read as follows:” then follows the provisions for the sale of intoxicating liquors not to be drank in, on or about the premises where sold. While it is true, therefore, that sec. 23 of the act of 1895 was added as a part of the act of 1891, yet in the re-enactment of said statute in 1899, the provision as to adding said sec. 23 as a part of the act of 1891 was omitted from the body of the act, although it was provided for in the title, and see. 23 of the act of 1891, which provides for the time the act should take effect was amended by the act of 1899, the provision for a license for the sale of intoxicating liquors to be drank in, on or about the premises where sold, becomes a part of said act by amendment and not by addition thereto. The amendments were in accordance with the requirements of the constitution unless the amendment made in 1899 is unconstitutional by reason of the fact that the title also provided for adding see. 23 to the act of 1891, when the body of the act made no such provision. We do not think this would render the act of 1899 unconstitutional; the title covered everything there was in the act, and the fact that it provided for another section to be added, which is not found in the body of the act, would not render the act unconstitutional. (26 Ency. of Law, 2d ed., 579, 582, 593.) The failure of the legislature in amending sec. 23 of the act of 1891 a second time in 1899, without referring to the amendment of 1895, does not affect the constitutionality of the amendment of 1899. (Fletcher v. Prather, 102 Cal. 413, 36 Pac. 658.) The same is true of the acts of 1901 and 1907.
Counsel have argued the question as to the amount of license fee to be paid by a dealer in liquors not to be drank in, on or about the premises where sold. But it appears from the stipulation on file in this case that the question of the amount of fees to be paid for the license was not the cause which led the board of county commissioners to reject said license, as it is specifically stipulated that the board of county commis