STATE v. TENINTY
No. 7562
Supreme Court of Idaho
Oct. 5, 1949
On Rehearing Dec. 17, 1949
212 P.2d 412
KEETON, Justice.
The respondent having been by the Probate Court of Lemhi County held to answer to the District Court for the unlawful sale of intoxicating liquor, the Prosecuting Attorney filed an information charging him with the crime of a felony, as follows: “That on or about the 16th day of January, 1949, at the Riverside Club, in Lemhi County, State of Idaho, the said Orba H. Teninty, then and there being, did then and there wilfully, unlawfully and feloniously sell liquor by the drink without a license, by then and there selling to Thomas Maydole a drink of liquor, to-wit: whiskey, without then and there having a license from the State of Idaho to sell the said liquor by the drink.”
To the information the respondent demurred, challenging the jurisdiction of the Probate Court to hold him for trial in the District Court, and of the District Cоurt to try him, for the reason, the respondent contended, the facts alleged charged only a misdemeanor in violation of
From the judgment of dismissal, the State appealed.
The respondent contends that Chap. 274 of the Session Laws of 1947 under which the proceedings were had is a local option act, and has no operation outside the limits of incorporated cities and villages which hаve elected to come within its provisions; and
In other words, respondent contends that the unlawful sale in question, having taken place outside of the boundaries of a municipality licensing the sale of liquor by the drink, he could only be guilty of a misdemeanor, and in which event should have been tried in the Probate Court.
The State on the other hand contends that an unauthorized, unlawful sale of intoxicating liquor in any part of the state constitutes a felоny, triable in the District Court.
The substance of the offense charged is the unlawful sale of intoxicating liquor.
It will be noted that both sections make the unauthorized sale of intoxicating liquors unlawful, but the penalties prescribed by the sections are in conflict.
By Chap. 274, 1947 Session Laws, the legislature deemed it advisable and necessary for the protection of the health, welfare and safety of the peoрle to further regulate and control the sale of alcoholic beverages. For that purpose a licensing scheme was designed which authorized the sale of alcoholic beverages by the drink at retail when such sale was made by persоns properly licensed. For the first time since prohibition had become a state policy, the sale of liquor by the drink by licensees was made lawful, and the legislature in providing for such sale of intoxicating liquor, under conditions prescribed, designated it a felony to sell any intoxicating liquor without a license as in the act provided. The 1947 act was supplemental to, and in furtherance of, the objectives of prohibiting the sale except under license;
In interpreting conflicting laws, in this case conflicting penalties, it is a rule of statutory construction that statutes should be construed as to effect the purpose thereof.
While the 1947 Act, supra, contains no direct repeal of
Where a statute prohibits an act and imposes a penalty for doing it, and a subsequent act imposes a different рenalty for the same offense, the latter statute prevails, and this whether the penalty is increased or diminished. See 59 C.J. 938, Sec. 551.
The general rule that a statute prevails and impliedly repeals a prior inconsistent one applies where both statutes relate to the same subject. 59 C.J. 912, Sec. 515.
Under the construction contended for by respondent, if a person sold intoxicating liquor outside of an incorporated village or city, he would only be guilty of a misdemeanor, and if an unlawful sale were made within the limits of an incorporated village or city which licensed the retail sale of liquor by the drink, the offender would be guilty of a felony.
Such a construction would circumvent and render ineffectual the intent of the legislature in defining the unlawful sale of liquor.
It does not seem to us that a general statute prohibiting the sale of intoxicating liquor except as authorized by law could properly be construed to apply to territory licensing the sale of liquor by the drink, and no other.
Where two statutory penalties arе in conflict, the one latest in point of time controls. A later statute prescribing a different punishment for an offense amends the former statute by implication.
In the case of State v. Garde, 69 Idaho 209, 205 P.2d 504, 506, this court had under consideration the two statutes in question and after reviewing the history of such acts said: “For the reasons hereinbe-
Prior to the enactment of the 1947 Act, supra, it was unlawful for any person to sell intoxicating liquor except as provided for sale by the State in controlled liquor stores.
The 1947 Act made certain exceptions to this rule, namely: Licensees under prescribed cоnditions; and made it a felony for any person not coming within the prescribed exceptions to sell intoxicating liquor, and sales not covered by the exceptions were defined as a felony.
The word “person” as used in this Act means any person not hоlding a retail liquor license, and whether he could or could not obtain a retail liquor license is inconsequential. It is the sale that is unlawful.
To otherwise hold would divide each county into separate areas. In one area the unlawful sale of intoxicating liquor would be punished differently than in another area of the same county. This was not the intent of the legislature.
It was the obvious intention of the legislature to authorize the sale of liquor by the drink under certain prescribed conditions and to punish as a felony the sale of liquor by any person not holding a liquor license so to do. To otherwise hold would defeat the clear and obvious intention of the law making body.
We therefore conclude that the penalty for the unlawful sale of intoxicating liquor is prescribed by
The order sustaining the demurrer and judgment of dismissal of the information is therefore reversed, and the cause remanded with instructions to the trial court to overrule the demurrer to the information and proceed further in accordance with the views herein expressed.
HOLDEN, C. J., and GIVENS and TAYLOR, JJ., concur.
PORTER, J., dissents.
On Rehearing
KEETON, Justice.
Rehearing was granted in the above case and the issues rеargued on December 7, 1949. Respondent contends that the sale of liquor charged having occurred “outside of the incorporated limits of any city, or village, it follows that the defendant (respondent) could not under any circumstances have obtаined or had in his possession a license at the time of the commission of the act charged, and if he shall be con-
In support of respondent‘s contention, he cites: Moore v. State, 126 Ga. 414, 55 S.E. 327 and Mitchell v. Dixon, 140 Tex. 520, 168 S.W.2d 654.
These cases, even if considered in point, are contrary to the great weight of American authority.
In 48 C.J.S., Intoxicating Liquors, § 132, page 241, the rule is stated as follows: “It is no justification to one selling liquor without a license, and no defense to a proseсution for unlicensed selling, that it was impossible for him to obtain a license, either because there was no provision for granting licenses in the particular district, or no officer competent to issue it, or for other reasons.”
The rule is stated in 30 Am.Jur. 470, paragraph 405, as follows: “* * * according to the great weight of authority, the impossibility of securing a license [to sell intoxicating liquor] * * * is no excuse, although a few cases take the contrary view. In the cases taking the view that the defense is not good, the impоssibility of obtaining a license may be due to a variety of causes, such as legislation forbidding traffic in liquors or the issuance of licenses, the absence of an officer or tribunal authorized to grant licenses, or the absence of a statute authorizing their issuance * * *”
The same contention made here was urged in the case of People v. Minter, 73 Cal.App.2d 994, 167 P.2d 11, 13. The defendant in that case had sold a bottle of whisky during hours that the sale of liquor was prohibited. The defendant argued that as the sale took place at an hour when a licensee could not legally make a sale, it follows that he had not done an act which a holder of a license might perform, hence no crime had been committed. The court disposing of the matter said: “* * * to place the interpretation upon section 3 contended for by the defendant would result in pеrmitting an unlicensed person to sell intoxicating liquor with impunity during the hours a licensed person is expressly forbidden to do so. * * * In construing a statute it must be remembered that no law is to be construed in such a manner as to result in a palpable absurdity.”
In the case of State v. Ely, 22 S.D. 487, 118 N.W. 687, 688, 18 Ann.Cas. 92, the defendant was charged with engaging in the business of selling brewed, malt, fermented and intoxicating liquors at retail without having paid to the said County of Kingsbury the license fee required by law. The de-
The territory in which the information charged the offense was committed was territory in which no license could be secured. The court held: “The offense was selling liquor without a license, and it was immaterial upon that question whether or not Spink county had voted for or against the sale, or whether ‘local option’ was in force when the indictment was presented. The penalty for selling liquor withоut a license remained the same through all changes regarding ‘local option‘.”
In an annotation to this case, found at 18 Ann.Cas. at page 95, the author, citing cases from Arkansas, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Minnesota, Missouri, Nebraska and Vermont, states the rule as follows: “The great weight of authority favors the rule, as laid down in the reported case, that the impossibility of securing a license is no defense in a prosecution for selling intoxicating liquors without a license.” The author recоgnizes a minority rule in Georgia.
To follow the construction contended for by respondent, would, in effect, authorize the indiscriminate sale of intoxicating liquors in a “dry territory” subjecting the offender to a lesser penalty than in an area where the sale undеr license could be lawfully made. Such an interpretation cannot be upheld.
Other contentions advanced by respondent on rehearing were sufficiently discussed and decided in the original opinion filed.
We therefore adhere to the ruling made in the decision filed October 5, 1949.
HOLDEN, C. J., and GIVENS and TAYLOR, JJ., concur.
PORTER, J., concurs in the conclusion reached.