Barth v. De Coursey

PORTER, Justice. Plaintiff owns a recreation area on the north side of Snake River in Canyon County near Walter’s Ferry Bridge on the road from Melba to Murphy. On February 4,, 1949, he filed application with the Board of County Commissioners of Canyon County *471 for a license to sell beer thereat. His application was on forms furnished by the County. It appeared on the face of the application that the applicant possessed all the qualifications and none of the disqualifications, prescribed by state law, of a licensee. Plaintiff’s application for a license was refused on the sole ground that the Commissioners would not issue a license for the sale of beer on any premises outside the incorporated limits of any city or village as provided in a resolution 1 theretofore passed by the Board of County Commissioners. Plaintiff' seeks by mandamus herein to compel the issuance of license to him on the ground that such resolution conflicts with state law, is an unauthorized prohibition and not a permissible term or condition under Section 23-1015, I.C. The decisive question in this case is aptly stated on page 4 of plaintiff’s reply brief .as follows: “May the Board of County Commissioners entirely prohibit the sale of beer at retail within the County, unless the retail establishment be located within the boundaries of a city or village within said County?” Chapter 132 of the 1935 Session Laws was the basic enactment of the beer law. Such chapter, as amended, is now Chapter 10, Title 23, I.C. By said Chapter 10, it is made lawful to sell beer in the manner and under the conditions prescribed therein. It provides for the issuance of county, municipal and state licenses. It sets forth the qualifications and disqualifications of applicants for licenses. It prescribes many regulations relative to the conduct of the business of selling beer. Section 23-1014, I.C., a part of the 1935 act, provides: “ * * * that nothing in this act shall be so construed as to prohibit or prevent municipalities or counties fom licensing and regulating places of - business where beer is sold to the consumer.” Section 23-1009,1.C., was added by Chapter 167, Session Laws of 1943. ' It pro *472 vides that applications for retailers’ licenses shall be made first to the municipality or county or both, as the case may be, and then to the commissioner, and the applications must show that the applicant possesses all of the qualifications and none of the disqualifications of a retailer licensee under the act, and, as to the municipal license, under any ordinance of the municipality The section then provides : “If the applications conform hereto the municipality, county and commissioner, respectively, shall each issue a retailer’s license to the applicant, subject to the restrictions and upon the conditions in this act specified, and, as to the municipal license, in the ordinance aforesaid.” (Emphasis supplied.) The 1947 Session Laws, Chapter 192, added Section 23-1015, I.C., which provides in part as follows: “It shall be unlawful for any retailer to sell beer without first procuring a retailer’s license from the county, said license to be issued on such conditions and terms as may be required by the board of county commissioners in the county wherein such place of sale of beer is located; * * Section 23-1011, I.C. provides that the issuer of a retailer’s license may revoke the same for violation of the provisions of the beer law. The foregoing statutes negative the thought that a county may prohibit the sale of beer therein by arbitrarily refusing to grant licenses for its sale. By the use of the word “shall” in Section 23-1009, I.C., it is made the duty of the county to grant a license to a duly qualified applicant upon such terms and conditions as the county may require. The phrase “conditions and terms” as used in Section 23-1015, I.C., refers to provisions which must be accepted or complied with by the applicant before the license is issued. The phrase “regulating places of business” used in Section 23-1014, I.C., refers to provisions which must be complied with in the conduct of the business after a license has been issued. Both phrases refer to and are for the purpose of providing for the regulation of the business of selling beer. It does not appear that Canyon County has prescribed any “conditions and terms” other than the resolution in question. - It is the general rule that where authority to license and regulate a business is granted by the legislature to a municipality, the regulations adopted must not be unreasonable, unjust or unduly oppressive. 33 C.J. pp. 522-524 ; 48 C.J.S., Intoxicating Liquors, 850. Nor must such regulations be such as to be prohibitory. 30 Am.Jur. p. 367, par. 216, states the rule as follows: “As a general rule, when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit that traffic altogether is impliedly withheld. Under such a grant of authority, a municipality cannot prohibit traffic in intoxicating liquor either directly or indirectly by im *473 posing prohibitive license fees or other regulations which are prohibitive in character. It cannot, in other words, effect prohibition, under the appearance of regulation, whereby those engaged in the business .are harassed by arbitrary, oppressive, and unreasonable restrictions.” In O’Connor et al. v. City of Moscow, 69 Idaho 37, 202 P.2d 401, on page 405, the court said: “This court in Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, at page 106, 286 P. 353, at page 358, has said that where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then an ordinance passed in pursuance thereof must be a reasonable exercise of the power, or will be pronounced invalid; that in determining the question of the reasonableness or unreasonableness of such an ordinance, all the existing circumstances or contempor.aneous conditions, the object sought to be obtained, and the necessity or lack thereof for its adoption, will be considered by the court; that whether or not an ordinance is reasonable is a question of law for the Court.” See also State v. Gregory, 191 Wash. 70, 70 P.2d 788; City of Fairfield v. Pappas, 362 Ill. 80, 199 N.E. 292; Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34. In the case at bar the resolution of ■Canyon County to the effect that it will not issue a license for the sale of beer outside ■ of incorporated cities and villages amounts to prohibition for the remainder of the county; and is inconsistent with and contrary to the state law legalizing the sale of beer. Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130. We are not unmindful of the authorities holding that under its power to regulate, a municipality may limit the number of liquor, beer or cigarette licenses in a given area for the good of a community; or that the municipality may prohibit the sale of beer in particular and limited lo-. cations where it would be detrimental to the public welfare. However, in the instant case, the power granted the County to impose terms and conditions must be interpreted in the light of the mandatory statute providing that the county “shall” issue licenses. The defendants, as appears in the record, based their refusal of a license to the plaintiff solely upon the ground of the resolution. They cannot urge at this time, some other ground for the refusal of the license. While the court will not interfere where the county has exercised an authorized discretion, it can properly do so where the refusal is predicated upon a ground not sustainable under the law. The county resolution in question is unreasonable, prohibitory and contrary to the state law. The refusal to grant a license to the plaintiff based solely upon such resolution was unwarranted. Peremptory writ of mandate will be granted. Costs to plaintiff. *474 HOLDEN, C. J., concurs. KOELSCH, Dist. J., concurs in conclusion. Footnotes [1] “Whereas, section 7-A of Chapter 192 -of the 1947 Session Laws provides that it shall be unlawful for any retailer to sell beer without first procuring a retailer’s license from the county, said license to be issued on such conditions and terms as may be required by the board of county commissioners in the county wherein such place of sale of beer is located, “And whereas, it has been the policy ■of the county commissioners of Canyon ■County not to issue beer licenses outside of the incorporated cities or villages •of Canyon County by reason of the difficulty of policing said retail sale of beer since the authorization by state law to permit counties to license the retail sale of beer, “Now, therefore, it is hereby resolved that the County Commissioners of Canyon County, Idaho, will not issue a license for the sale of beer on any premises outside the incorporated limits of any city or village in Canyon City, Idaho.” Resolution passed by Board of County Commissioners of Canyon County, July 16, 1947.