*1 The order in the district court appellate law, requires additional settling some to will to clar- on reads: hopefully September serve comment which there than it obfuscates. So ify more ORDERED that IT IS THEREFORE it, I have never no mistake about may be 8, 1976, July dismissing Order to appealed order first suggested that the objections ac- is reversed and this heirs’ Clearly it appealable. court was district Magistrate to the Court tion remanded appealable. was not Report directions to determine said with objections Petition and thereto decline throw majority, I Unlike the failing call the merits. State accolades nonappeala- to the Judge attention Smith’s brought fur- appeal The notice unfair, manifestly and unsound It is bility. 8, 1976, July ther review of the order economy, part to take judicial for the State into this Court reads: it proceedings which later appeal Russell, that Verna Admin- notice [T]ake the issue. having ever raised assails without Joy Evangeline istratrix of Estate it remains majority opinion, Irwin, wherein hereby The to the appeals Supreme written, notes that the “subse properly as of Idaho from Court State by the district court quent orders entered day Septem- on the 14th Order made as established in based the law ber, 1976, day the 20th and entered on I thought Such proceeding.” [first] entitled the above September, case, equally the law be the law of but 2388, 5363, action, Civil Numbers court’s conclu was the district of the case overruling the the above entitled Court sion, one, that it did albeit an erroneous Joseph, Frank H. order of the Honorable That, too, law jurisdiction. have day July, the 8th Magistrate, dated subject challenge of course case— 1976. (as necessary invoking if appeal, does, seeks, or this Court Stock often 797, 802, State, P.2d well v. Court, this 116) plenary power days since territorial special writs which where an quick remedy as existed have has a matter of law tribunal as
inferior Beglan, Eugene and Venita KOPP its beyond jurisdiction. acted Plaintiffs-Appellants, judgment should The district court affirmed. (Department Lawof The of Idaho STATE Falls, APPENDIX Enforcement), of Twin Koutnik, Idaho, d/b/a L. James in Russell court order magistrate County Sandpiper, of Twin 8, 1976, Butler, July reads: dated through Idaho, De John Does HEREBY IT IS THEREFORE NOW fendants-Respondents, ORDER ORDERED, does Peti- Account Final objections to are same INCORPORAT RAPON INVESTMENTS Distribution tion Corporation, ED, Defendant- an Idaho hereby dismissed. Intervenor-Respondent. specifically to district No. was: it stated dated and Order respect to the Supreme With of Idaho. Court 8,1976, the Matter July filed on May IRWIN, EVANGELINE Estate of JOY objec- heirs’ dismissed which Order Petition for to Final Account tions proceeding Estate in said
Distribution *2 Roden, Boise,
William C. for plaintiffs-ap- pellants.
Wayne Kidwell, Gen., Bates, Atty. Jay F. Sp. Gen., Atty. Mauk, Asst. L. William Boise, for defendants-respondents. McFADDEN, Justice. challenges
This district court judgment upholding the issuance of a 16th liquor retail city use county of Twin Idaho. The principal issue raised is whether the state question license in was issued in accordance with the legal requisites of I.C. our disposi- Since resolution of this issue is tive, parties other issues raised will discussed. case facts are uncontroverted. 23—903 limits the number of retail that can be pro- issued. It part vides in relevant as follows: liquor. License to retail director —The department of law enforcement is authorized, hereby empowered, and di- qualified appli- rected to issue licenses to cants, provided, whereby as herein permitted licensee shall be authorized and, liquor by sell drink at retail license, complaint lants’ amended asked the district upon the issuance such licensee therein named shall be authoriz- liquor license is- the state revoke drink, ed to sell at retail but enjoin Koutnik and to respondent sued to only in accordance with rules and of Law Enforcement Department regulations promulgated by the director proper de- reissuing from the same until *3 the provisions and of act. this No license was made.2 termination of census shall be liquor issued for the of sale on hearing, district court After a full the any premises incorporated outside the liquor of a concluded that the issuance state any city except provided limits of as supported to Koutnik was license L. James this act and of the number licenses so by figures provided by the United census any city issued for shall not exceed one Census, States Bureau of the and such is- (1) each one thousand five operation suance and the use and thereun- (1,500) population hundred city of of said I.C, permissible pursuant to legally der was thereof, or fraction as established in the Judgment was entered in favor census, preceding any subsequent last or respondents of and followed. by census conducted bureau of the census States first time this court has been This the added.) (Emphasis upon interpret portion that of called limits the number of availa- 23-903 which Depart- November the On liquor according population. ble of ment Law Enforcement issued a 16th question statutory language reads: liquor city license for retail use the and county defendant-respon- of Twin Falls . the of number licenses so issued L. James dent Koutnik. This license was any city (1) shall hot exceed one on issued the basis of a 1973 each five hun- license for one thousand Falls, figure City prepared for the of Twin (1,500) city of of said dred by United States Bureau of the Census thereof, as established in the last fraction (1954).1 pursuant to 13 U.S.C. Mr. spe- preceding any subsequent Milar, manager of Twin City Jean by the cial census conducted United figure from a obtained the the census bureau of “Population Estimates document entitled added.) (Emphasis 23-903 Projections” prepared which was and language claim the re- Appellants above Bureau of the Census for United quires liquor licenses to issued on retail revenue-sharing purposes. The document census or the basis of a federal decennial of the indicates that as that term is federal 1,702 people be- Twin Falls increased (1976). defined in 13 That April July 1970 and tween part as follows: statute relevant Plaintiffs-appellants Beglan Venita special cen- Secretary may conduct city are Kopp residents Eugene State, any government of suses for the Falls, Idaho. On November county of Twin political sub- any county, city, or other 23, 1976, they complaint filed a in district State, . within division of a 16th the issuance alleging Secretary of the actual or payment to Twin city for the Falls liquor license special cen- cost each such estimated 23-903 because it was not violated of each such sus. The results by the upon census conducted Unit- based designated Cen- Appel- census shall be “Official Bureau of Census. ed States any respondent revoke such Koutnik states: 1. 13 U.S.C. By stipu- already issued. license that had been surveys Secretary may deemed make lation, city county Twin Falls waived necessary and other interim annual to furnish participation appearance in this formal subjects covered on the current data suit, validity agreeing of the licenses provided this title. censuses respondent they will de- Koutnik issued enjoin Appellants asked the court also validity pend the State license. city county licenses to issuance (1966); Breckenridge may P.2d John These statistics Statistics”.' provided applica- 121, 108 ston, used in the manner P.2d 833 Ada 62 Idaho 363,102 Bottolfsen, ble law. County v. 61 Idaho above, (1940). Depart As indicated Respondents, U.S.C. § interpreted Law has ment of Enforcement hand, Department other contend purpose to mean for the 23-903 interpretation Law Enforcement’s licenses, issuing municipal retail According 23—903 is correct. to the De- population can be established a certified Enforcement, partment legisla- of Law report population prepared tive intent allow official of I.C. was to authority Secretary retail liquor licenses to be on the of Com issued merce, basis of current population data from States Bureau of the Census. United Census, United Cade, States Bureau of the wheth- Mr. L. of the Bureau Richard Chief *4 decennial, er it be biennial or Un- annual. Liquor Investigation, Department Law of der the Department’s interpretation of I.C. Enforcement, Law the testified De 903, § be es- municipal can partment has approximately issued dozen 23— by report tablished reference to an official liquor retail licenses on the basis of this prepared authority under the of the Secre- interpretation. Mr. Cade also testified that Commerce, tary of United States Bureau upon Department’s interpreta he relied the Census, and so certified. respon tion of I.C. 23-903 when he issued § dent L. James a retail
It is the
rule
Koutnik
general
agency
that an
license on the basis of a 1973
charged
duty
with
of administering
figure
of Twin
estab
act is
impliedly
power
clothed with
to con
by
strue
lished
Bureau of the
necessary precedent
it as a
to admin
purposes pursu
istrative
revenue sharing
action. Oklahoma Real Estate Census for
Proper
(1954).
Commission v. National
ant
Business &
to 13 U.S.C.
181
§
ty
606,
Exchange,
(10th
238 F.2d
Cir.
Department
of Law Enforcement’s
1956);
County
Clark
School
District
interpretation
supported
is
23-903
§
Local
Employee Management
Government
legislative
by the
history of
Retail Sale
Board,
442,
Relations
90 Nev.
The construction
a statute
which was
codified as I.C.
23-904,
the executive
administrative
1959 to
officers
was amended in
read
great weight
State is entitled to
direction
“The census taken under the
will
the Court unless there
followed
congress
United
cogent
are
holding
(10) years
reasons for
otherwise.
thereaft-
year
every
ten
Forests,
410,
23-904,
1959,
McCall v.
69 Idaho
. .”
am.
ch.
Potlatch
er
..
Utili
year,
P.2d 799
Public
the Idaho
p.
That same
118 §
Co.,
ties Comm’n v.
90 Idaho
23-903 to limit
legislature
V-1 Oil
amended I.C. §
Moreover, appellants’ contention
available
the number of
licenses ac-
population to be
However,
requires
that I.C.
cording
to population.
instead of
or
by a
decennial census
federal
established
using
quoted language
the above
from I.C.
term is
“special
census” as that
defined
23-904,
clearly
which
refers to
federal
into
fails
take
census,
stated
relevant
statutes
the dates the
account
that:
noted
As
enacted
amended.
number
so
.
of licenses
issued
lan
above,
1959 to 1963 the relevant
from
village
not
any city
shall
exceed
estab
guage
stated: “as
from I.C. 23-903
1,500
one
for each
license
census,
preceding
.
.”
last
lished in the
the last pre-
as established in
any subsequent
cen-
“or
words
census,
ceding
.
(cid:127).
Bureau
sus conducted
the United States
23-903,
p.
am.
ch.
by way of
of the Census” were added
(emphasis added).
provi-
the above
(1976),
13 U.S.C. 196
amendment
.1963.
sion was
so that
it now reads:
amended
special cen-
for and defines
suses,
by the United States
was not enacted
so
the number
issued
(Pub.L.
Congress
until October
village
any city
shall
exceed
17,1976,
2464.)
94-521,
11(a),
90 Stat.
Oct.
1,500
one
for each
legislature could
Consequently,
the Idaho
pre-
in the last
as established
intended the term
not have
any subsequent
ceding
*5
n
the
be restricted to
23-903 to
§
I.C.
by
census
the United
conducted
.States
in 13
special
federal definition of
census
Census,
Bureau of the
(1976).
1976,
Prior to
federal
196
§
1963,
1,
23-903,
p.
ch. 215
§
I.C.
am.
§
define,
for,
expressly provide
law
or
did
respect
statute with
to one
Where a
However,
special
since 1929 the
censuses.
subject
provision,
the
contains
certain
the Census has been authorized
Director of
provision from similar
omission of such
other
transcripts
to
of tables and
furnish
subject
sig
concerning a related
is
statute
records,
special
and make
census
to
statisti-
that a different
intention
nificant
to show
surveys for
compilations
cal
and
State
v.
Electric Co.
Southern
existed. General
payment
local
of the actu-
officials
the
135,
Cir.,
Co.,
cert.
5
383 F.2d
Construction
13
al or
of such work.
estimated cost
1049,
955,
19 L.Ed.2d
(formerly
390
88 S.Ct.
218
8(b) (1954)
den.
U.S.
section
U.S.C. §
(5th
1967); City
title).
logical
of Port Hueneme
conclusion is
only
1148
Cir.
Oxnard,
385,
legislature
referring
was
to
City
v.
52
341 P.2d
that
Cal.2d
the Idaho
Crawford,
(1959);
“surveys”
“special
statistical com-
Corp.
Richfield Oil
these
and
318
729,
(1952);
it
I.C. 23-903 to
pilations”
§
State v.
when
amended
39 Cal.2d
Welkos,
by
established
186,
population
allow
to be
Wis.2d
165 Justice, together provision with BAKES, I.C. 23-904 dissenting: fees based on the majority’s I dissent from the conclusion taken of the “census direction a population approved by estimate year congress United States Bureau of Census for use in thereafter,” every years 1950 and ten it administering programs various federal legisla- is obvious that in I.C. 23-903 the “special which the Idaho regular referring ture was to the legislature referred 23-903. A in. federal govern- census conducted ordinary meaning brief review of the ment. “census,” law at the the state of the time the term census” was added At the time I.C. 23-903 amended statute, statutory Idaho and the federal “any special 1963 to include cen subsequent provisions apparent the error in make conducted United States Bureau majority’s reasoning. Sess.Laws, Census,” of the 1963 ch. regular 1 at decennial cen The word “census” from the is derived only suses were not censuses taken “censere,” meaning Latin word to count or the United States Bureau of In Census. reckon, language his- Roman to the addition decennial census the Bureau torically numbering peo- meant “a conducting “special Census was also cen Am.Jur.2d, ple.” (1964). Census generally suses.” censuses were modern times courts ruled have that “cen- an particular interim taken census of a mu sus” refers to “an official enumeration of nicipality or area, political by the an subdivision inhabitants” of Am.Jur.2d, supra; United States Bureau of but at the singly counting “the Census expense up request municipality an official count- [or] heads,” ing political Fed.Register State ex rel. Morrison v. subdivision. See Nabours, Am.Jur.2d, 2; (Jan. 4, 1963); supra, Ariz. 286 P.2d finding Adams, Compton “a and not 33 Cal.2d estimate,” Jost, Reynolds ex rel. These censuses *6 51, 591, 265 Mo. 175 597 S.W. and were apparently taken a house to house merely total, list, “not a sum but an official in a canvas manner similar to that em inhabitants,” containing the names all ployed taking of in a City decennial census. Cast, City Huntington 255, Adams, of v. 149 Ind. of Compton supra. 48 v. 1025,
N.E.
of
City
See
Bisbee
opinion’s
majority
that
observation
Williams,
141,
83 Ariz.
196,
which U.S.C.
for and
§
(1957). Although the Idaho act at issue in
special censuses,
defines
was
in
enacted
this case
not specifically
does
define “cen-
1976, subsequent
to the 1963
amendment
sus”,
provide
the act does
that
the words
adding
“special
cen
the term
§
given
used “shall
ordinary
and com-
However,
sus”
is
to Idaho law correct.
monly
accepted meaning.”
understood and
“special
majority’s suggestion that the term
The ordinary
accepted
23-902.
in
census”
23-903 therefore could not
meaning of “census” is an official enumer-
thing
have referred to the same
as the term
population
ation
not
does
refer
“special
simply
census” in
196 is
U.S.C.
to a mere
projection.
estimate or
Although
incorrect.
was
in
enacted
See Webster’s Third New International Dic- 1976,
congressional reports
leg
on that
tionary (1971).
provision
islation make it
that
clear
Moreover,
commonly
courts have
special
type
inter-
censuses did not create a new
preted the term “census” to mean
merely
the Unit-
census but
the law
made
conform
census,
ed
particularly
to existing practices.
S.Rep.No.94—
See
that
only
1256, 11,
Cong.
where
is the
census regularly
reprinted
tak-
in 1976U.S.Code
Am.Jur.2d,
5468-69;
en in a state. 14
Admin.News,
When
H.R.
supra.
pp.
&
phrase
13-14,
pre-
“as established
Conf.Rep.No.94-1719,
reprinted
the last
at
Admin.News,
ceding
pp.
Cong.
is read
§ 23-903
&
U.S.Code
Bureau of
example,
5481. For
ed
January
published
the Bureau of Census
a
legislative
.
intent
Census
.”
regulation specifying the conditions under
obvious:
should be
of that amendment
“special
it would conduct a
popula-
that
legislature
to make clear
intended
governmen-
tion census”
state and local
a
be based
issuance of
could
Fed.Reg.
(Jan. 4, 1963).
tal bodies. 28
regular
decennial census or a
upon either
Adams,
City
In
Compton
supra, the
special
census conducted
Bureau of
Supreme
California
Court considered a
However,
nothing
Census.
there is
census” conducted in .1948
history
legislative
of I.C.
23-903 to indi-
United States Bureau of Census of the
legislature
cate that
ever intended to
Compton
request
expense
at the
original concept
basing
abandon the
Moreover,
city.
the California court’s
issuance of
on an
licenses
actual cen-
opinion, which was released in
states
basing
favor of
the issuance on a
many
“that
years
the Bureau of the
popula-
projection
mere estimate
special
Census has taken
censuses of various
tion.
regional
sum,
areas.” 203
at
In
any
majority opinion
concludes
the majority’s suggestion that
the Bureau
projection approved
population estimate
conducting “special
of Census had not been
may
Bureau
Census
by the United States
censuses”
at
the time
issuing
pur-
be relied
historically
amended I.C. 23-903 in 1963
so,
doing
how-
suant
incorrect.
misinterprets
ever,
only
majority
not
However,
the fact
the Bureau of
sig-
misapprehends the
Idaho statutes but
conducting special
was in fact
cen-
Census
Although
nificance
the federal statutes.
problems
suses
create certain
under var-
require
Bureau
statutes
current federal
provided that the
ious state statutes which
produce
publish “current
of Census to
latest federal census would be the basis for
on total
data
governmental
regulations
certain
or activi-
annually
govern-
for some
characteristics”
prior
liquor licensing
ties.
Idaho’s
statute
others,
biennially for
units and
mental
to the
typical
1963 amendment
181(a), Congress
equated
had never
U.S.C.
problem.
courts had
that such
Some
ruled
projections
those
estimates
statutory provisions
satisfied
census or
with a
either the decennial
geographi-
census taken of a limited
183(b) pro-
census. 13
Smith,
cal
Sproul
area. See
ex rel.
popu-
such “current data
total
vides that
(1944) (liquor
153 Fla.
So.2d
applied
any
“to
law
is not to
lation”
county popula-
license granted according to
*7
which,
purposes
the United States
Abrahamson,
tion);
v.
Iowa
Harp
of benefit received
determining the amount
(1957) (apportionment
indication that Idaho ever
intended that the issuance of liquor licenses SHEPARD, J., McFAD- C. Before pursuant to I.C. 23-903 be based on such DONALDSON, DEN, BAKES BIST- estimates rather than official census. LINE, JJ.
Regarding majority’s reliance on the
rule that PER administrative construction CURIAM.
statute is
weight
entitled to
determining
Douglas
Defendant-appellant Dixon
Cur-
its meaning, this Court
stated Ware v.
ley
complaint
charged
criminal
on
Commission,
Tax
State
98 Idaho
17, 1976,
August
degree
with first
murder
that,
567 P.2d
“Whether
jury
a police
officer. The
rendered its
n
or not an administrative
construction
February 18,1977.
guilty
verdict
legislative language
ultimately
is correct is
judgment
district court entered
and sen-
a question
judicial decision,
especially
Stay
March
tence of death on
where,
here,
as
the language is
devoid
pending appeal.
execution was entered
any ambiguity.” Here,
ambigui-
there
nois
raised
were con-
issues
ty in the requirement that the number of
Lindquist,
decided in
sidered and
licenses issued shall be
a population
basis
(1979),
99 Idaho
be reversed. P.2d 316 Idaho, Plaintiff-Respondent, STATE Idaho, Plaintiff-Respondent,
STATE MACHEN, Defendant-Appellant. Jon Douglas CURLEY,
Dixon No. 12737. Defendant-Appellant. Supreme Court of Idaho. *8 No. 12590. May
Supreme Court of Idaho.
May Pinehurst,
William Mulberry, H. for de-
fendant-appellant.