Taylor v. State of Idaho , 62 Idaho 212 ( 1941 )

Prior to the amendment thereof, at the general election in 1934, section 26, article III of the Constitution, read as follows:

"From and after the first day of May in the year 1917, the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes are forever prohibited. The legislature shall enforce this section by all needful legislation."

The legislature at its 1933 Session (1933 Sess. Laws, p. 470), submitted the following proposed amendment to the foregoing section:

"From and after the . . . . thirty-first day of . . . .December in the year . . . . 1934, the Legislature of the Stateof Idaho shall have full power and authority to permit, controland regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes. . . . ."

The amendment was ratified by vote of the people at the November, 1934, general election. (1935 Sess. Laws, p. 375.) So it will be seen that, while prior to November, 1934, the only power or authority the legislature had in relation to "intoxicating liquors" was to enforce by all "needful legislation" the prohibition of "the manufacture, sale, keeping for sale, and transportation for sale" of such liquors; whereas, by the amendment, the legislature was granted "full power and authority" to authorize its sale and to regulate and control the business in every way and in all respects.

The legislature met in January, 1935, following the adoption of the foregoing constitutional amendment and passed what is known as the "Idaho Liquor Control Act" (1935 Sess. Laws, chap. 103, p. 222), and started the state in the liquor and saloon business; buying, selling and generally trafficking in intoxicating liquors. Whether the people actually so intended, is not a question or issue here.

The Liquor Control Act of 1935, supra, was repealed by chapters 14 and 222 of the 1939 Session Laws (pp. 30 and 465, respectively), the latter act (chap. 222), evidently intended to supplant the original act. Section 102 of the act declares that it "is passed in the exercise of the police power of the state." That is only idle verbiage since the people, by the Constitution, have specifically authorized the legislature to "permit, control and regulate" the liquor business; so the legislature was exercising specially granted power direct fromthe people, and it made no difference whether it was legislating for a purely proprietary business or as a police measure. Clearly, the outstanding and objective feature of the act is selling liquor and controlling the business, and making a profit to the state. The act of 1939 continues the state in the business, vests in the liquor board full power andauthority to do everything that one can well imagine could be done in the liquor traffic. Among other things (as set out in Mr. Chief Justice Budge's opinion), it authorizes the board "to prescribe the qualifications of and to select clerks, accountants, agents, vendors, inspectors, servants, legalcounsel, and other personnel to conduct its business and perform its functions."

No one appearing in this case has questioned the power of thestate to engage in the liquor traffic, under the constitutionalamendment of 1934 above set out, so we should deal with it on the assumption that the power reposed in the legislature to provide for and authorize the traffic. There is no doubt but that the legislature intended to authorize the board to employ such legal aid and assistance as they deemed necessary in conducting and carrying on the business. Consequently, the only question in this case is: Did theamendment to the Constitution confer power on the legislature to authorize the employment of "legal counsel" to assist and advise the board in administering the act?

The language of the constitutional amendment is all-inclusive and contains no limitations. It is fundamental that the legislature may legislate on any subject and in any manner not prohibited by the Constitution of the state, except that it must not run counter to the federal Constitution or a valid act of Congress. (St. Joe Improvement Co. v. Laumierster, 19 Idaho 66, 70, 112 P. 683; Ingard v. Barker, 27 Idaho 124, 131,147 P. 293; State ex rel. Macey v. Johnson, 50 Idaho 363, 368,296 P. 588; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692,722, 78 P.2d 105].)

We must bear in mind, however, that the legislature, in enacting this liquor control law, did not overlook the fact that there is an Attorney General, and so they closed the act with the following two sections:

"Section 1102. Supervisory Duty of Attorney General. If any prosecuting attorney, sheriff or local peace officer is guilty of nonfeasance, misfeasance or malfeasance in respect to his duties under this act, the attorney general of the state shall proceed against said offender in ouster or removal proceedings under Chapter 42 of Title 19 Idaho Code Annotated, or as may be otherwise provided by law.

"Section 1103. Power of Attorney General to Act as Prosecutor. The attorney general shall, in every county in the state, have the same powers as the prosecuting attorney thereof with respect to the prosecution of criminal actions andabatement proceedings under this act," (Italics supplied.)

Now it is evident that the board has no authority or power toemploy an attorney to do any of the things which thelegislature has provided in sections 1102 and 1103, supra,shall be performed by the Attorney General. The lawmakers did not intend to so authorize the board.

On the other hand, the people have by the Constitution conferred "full power and authority" on the legislature to do as it deems best in dealing with the liquor problem; and, in the exercise of that power, the legislature may in its own discretion authorize the Board to employ "legal counsel" as well as "agents, vendors, inspectors . . . . and other personnel."

If it be conceded, for present purposes, that the Constitution, as originally framed and adopted, vested the exclusive authority in the attorney general, to be "the adviser of all the state officers" and to represent the state in all litigation, we are, nevertheless, still confronted with this later amendment which would have to be construed in conjunction with the original; and if any conflict exists, it would be our duty to recognize and give effect to the later expression of the people on the subject covered by the amendment. (Herrick v. Gallet, 35 Idaho 13, 20, 204 P. 477.) The office of attorney general is a part of the executive and administrative branch of the government and possesses no "judicial power," and therefore the increase or limitation of his authority is no interference with the powers of the courts or of the "judicial department." (Sec. 13, art. V, Const.)

In concurring in the conclusion reached by Mr. Chief Justice Budge, I am limiting what I say to the specific issue before us; viz., the power of the legislature under the liquor controlamendment to the Constitution to authorize the employment oflegal counsel.

Givens, J., concurs.