Barth v. De Coursey , 69 Idaho 469 ( 1949 )

I concur in the opinion by Justice Porter.

A basic reason for holding the ordinance prohibitory is that the county, having no authority to make police regulations for municipalities, by this ordinance refuses to consider any application on its merits, and refuses to fix any "conditions and terms" for an applicant to comply with if the application comes from that area of the county where the board has authority to fix "conditions and terms." By this I do not mean to say that the county commissioners may not reject an application coming from a municipality if the applicant is subject to any of the disqualifications provided for by the state law. In fact, it would be their duty to reject an application subject to such disqualification. But other disqualifications which may affect an applicant within a municipality are to be provided and imposed by the municipality and not the county.

As respects police powers, the constitution makes counties and cities independent entities of equal dignity.

"Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws." Const., Art. 12, sec. 2.

This is a direct grant of police power from the people through their constitution to the counties and municipalities in dependent of legislative action. In my opinion it is to be construed with equal force and effect as respects both counties and municipalities so that the ordinances of neither a county nor a municipality can be considered of any greater authority or dignity than the other. The "general laws" referred to and contemplated by this constitutional provision are police regulations made by the legislature itself, to be effective throughout the state. For that reason I doubt that the legislature could by a so called "general law" provide that the ordinances of the the county, passed in pursuance of its police power, should be superior to the ordinances of the municipalities within the county, and in effect become "general laws" as to such municipalities. Such an act by the legislature, if given effect, would add to the constitutional provision the further limitation that the city and town ordinances must not conflict with the ordinances of the county. It would appear that such an act would constitute a delegation by the legislature to the county of its power to make the "general laws" for the municipalities within the county. Whereas, the constitution, as written, grants police powers on an equal basis to both within their respective limitations; that is, within their respective territorial jurisdictions. The provision that these ordinance shall not conflict with the general law has the evident purpose of preserving to the legislature the paramount authority to make police regulations effective throughout the state.

California, having a constitutional provision in effect the same as ours, has held that it is a direct grant of police power and makes the ordinances and authority of the counties and municipalities of equal rank. In ex parte Roach, 104 Cal. 272,37 P. 1044, 1045, the court said:

"The power to make these regulations is by this section conferred upon the city as well as upon the county, and must be held to be equally authoritative in each. It is a portion of the lawmaking power which the people through their constitution have conferred upon these respective bodies, and its exercise is entitled to the same consideration and to receive the same obedience as that portion of the same power which by the same instrument has been conferred upon the legislature. The regulations made under this authority are none the less a part of the law because the authority to make them is conferred immediately by the constitution than if it had been conferred immediately through an act of the legislature. The only limitation upon the exercise of the power is that the regulations to be made under it shall not be 'in conflict with general laws.' As this limitation applies equally to regulations of the county and the city, it cannot be held by the terms of the limitation that the regulation of either of these bodies is a general law for the other; * * * Full effect can be given to the section by holding that each has been given the exclusive right of legislation within its own particular boundaries. By the organization of a city within the boundaries of a county, the territory thus organized is withdrawn from the legislative control of the county upon the designated subjects, and is placed under the legislative control of its own council; and the principal of local government which pervades the entire instrument is convincing of the intention to withdraw the city from the control of the county, and to deprive the county of any power to annul or supersede the regulations of the city upon the subjects which have been confined to its control."

" ' * * * for difficulties and confusion arising from a clash of jurisdictions would be the only result to follow, if both the county and the municipality possessed the power of enacting police and sanitary measures within the confines of a municipality.' * * * The county, in brief, has no legal right to legislate for a municipality located within its limits upon any subject which is within the scope of the powers granted to the municipality, and particularly upon any matters involving the police power of the state." Ex parte Knight, 55 Cal. App. 511, 203 P. 777, 779, See ex parte Pfirrman, 134 Cal. 143, 66 P. 205

The rule of these California decisions was approved and adopted in this jurisdiction in the case of the State v. Robbins, 59 Idaho 279, 81 P.2d 1078. In Anderson v. Board of Commissioners, 22 Idaho 190, 125 P. 188, the constitutional provision was not considered.

It is to be noted in this connection that California has held that both the county and the municipality may collect a license tax for revenue purposes within the municipality. People v. Martin, 60 Cal. 153; In re Lawrence, 69 Cal. 608, 11 P. 217; In re Mansfield, 106 Cal. 400, 39 P. 775; Los Angeles v. Eikenberry, 131 Cal. 461, 63 P. 766; Ex parte Pfirrman, supra. This was undoubtedly the rule which the legislature intended to follow in providing in section 23-1016 I.C.,

"* * * that no incorporated municipality shall issue a license to any retailer until such retailer shall have first obtained a county license * * * and that a revocation of the license granted by the board of county commissioners shall work a revocation of license granted by such incorporated municipality."

In fact, this legislative intent is expressly set out in section 23-1017, I.C. The county license operative within a municipality, being intended for revenue purposes, no police power being involved, no conflict with the constitutional provision results.

However, in this case it is not necessary to decide whether or not the legislature could grant the power to the counties to make police regulations for the municipalities, because there are no words used in the beer law under consideration by which the legislature may be said to have intended to do so. The words, "said license to be issued on such conditions and terms as may be required by the board of county commissioners", found in section 23-1015, I.C., do not imply such an intent on the part of the legislature. These words are fairly susceptible only of the construction that the county is given power to impose conditions and terms upon licensees operating within the territorial jurisdiction of the county, that is, outside of the limits of the municipalities. There is nothing in the act to indicate that the legislature intended they should have any broader effect or any broader interpretation. It is an axiom of statutory construction that where an act is susceptible of two interpretations one of which renders it constitutional and the other unconstitutional, the interpretation which sustains the constitutionality of the act must be adopted. In re Gale,14 Idaho 761, 95 P. 679; Northern Pacific Ry. Co. v. Gifford,25 Idaho 196, 136 P. 1131; Hall v. Johnson, 53 Idaho 667,27 P.2d 674; Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068. Also, "a construction rendering a statute of doubtful constitutionality will not be adopted if another is open to the court." Scottish American Mortgage Co. v. Minidoka Co., 47 Idaho 33, 272 P. 498, 505, 65 A.L.R. 663; Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245.

If the conclusion is correct, that the county has no power to make police regulations for the municipalities within its borders, then it is clear that an ordinance by which the county declares that it will not grant a license to an applicant for the retail sale of beer within the county, unless such business is located within a municipality, is a refusal to fix "conditions and terms" which are within the jurisdiction of the county to fix, and in that sense is arbitrary. It also means that the county commissioners have construed the state beer law to provide for local option. And, in final analysis, the ordinance amounts to prohibition so far as the jurisdiction of the county is concerned. The beer law is not susceptible of such construction.