Mix v. Board of County Commissioners

SULLIVAN, C. J. This appeal involves the judgment and order of the trial court in refusing to grant a writ of mandate to the board of county commissioners of Nez Perce county, — 701 — commanding them to issue a license to the appellant, authorizing him to engage in the business of retailing intoxicating liquors in the city of Lewiston. The action was brought to determine the applicability of the local option law to the territory included in the city limits of Lewiston. It is alleged in the petition that the city is operating under a special act or charter; that the petitioner has been engaged for several years last past in the liquor business in said city, and that he now holds a license from that city; that he applied to the county commissioners for a renewal of his county and state licenses, and that such renewal was refused on the sole ground that a local option election was held in the county of Nez Perce on March 9, 1910, at which election the canvassers found that the majority of the votes cast were in favor of the proposition submitted and that the board was thereby deprived of discretion to issue the license applied for. A general demurrer was interposed to the complaint or petition, which was sustained by the court and a judgment of dismissal was entered. This appeal is from that judgment. In limine, we desire to say that the oral argument of Eugene A. Cox, of counsel for appellant, which was submitted to the court in typewriting, shows a great deal of thought, study and painstaking research, and is a very valuable historical treatise, and deserves special mention in this opinion it is instructive and valuable for its clear and well-reasoned argument, and it traces the history of special charter cities from their early existence down to the present time. It is a splendid production, and ought to be preserved in proper form for the benefit of anyone who may be interested in that subject. The main question presented is: Does the act known as the local option law (Sess. Laws 1909, p. 9) apply to the city of Lewiston? It is contended by counsel that sec. 63 of the special charter of the city of Lewiston (Sess. Laws 1907, p. 349) gives that city the absolute power to regulate or prohibit the sale of intoxicating liquors within said city, and that the local option law, though adopted by the electors of the county, can in no manner affect the right of the city to — 702 — control the traffic in intoxicating liquors. Said section 63 is as follows: “The mayor and council shall have full power and authority: .... To license, regulate, restrain and prohibit for cause places where intoxicating beverages are sold, and all offensive and dangerous trades, occupations, employments or businesses, and for the purpose of this act to define what are offensive and dangerous trades, employments, occupations, or businesses; to limit and define the districts within the city within which intoxicating liquors may be sold, and any dangerous or offensive occupation carried on; but this section does not empower the city of Lewiston to declare a trade, employment, occupation or business offensive or dangerous contrary to the common understanding of the subject, nor to authorize anyone to do any act or engage in any business contrary to the law of the land. ’ ’ In determining the questions involved, the method or manner of amending said special charter under the provisions of the state constitution must be considered. It appears from the record that the city of Lewiston was created by an act of the legislature of Washington territory in 1863, prior to the creation of Idaho territory, it then being a part of Washington territory. That city’s existence was recognized by the territory of Idaho, and its charter was continued in force by sec. 2 of art. 21 of the state constitution, which-is as follows: “All laws now in force in the territory of Idaho which are not repugnant to this constitution shall remain in force until they expire by their own limitation or be altered or repealed by the legislature.” Sec. 1 of art. 12 of the constitution provides for the organization of cities not operating under special charters, as follows : „ “The legislature shall provide by general laws for the incorporation, organization and classification of the cities and towns, in proportion to the population, which laws may be altered, amended, or repealed by the general laws. Cities- and towns heretofore incorporated, may become organized under — 703 — such general laws, whenever a majority of the electors at a general election shall so determine, under such provisions therefpr as may be made by the legislature.” Sec. 2 of art. 11 of the constitution provides as follows: “No charter of incorporation shall be granted, extended, changed or amended by special law, except for such municipal, charitable, educational, penal or reformatory corporations as are or may be, under the control of the state; but the legislature shall provide by general law for the organization of corporations hereafter to be created; Provided, That any such general law shall be subject to future repeal or alteration by the legislature.” It is contended by counsel for appellant under the provisions of sec. 2, art. 11, of our constitution and the decisions of this court, that the charter of the city of Lewiston ean be amended in two ways only: First, by special act for that specific purpose; and, second, by a general criminal law or a law treating a subject matter of proper state control and declarative of a state policy; that the latter method is not express but arises by necessary implication from the nature of state and city government; that cities are organized to deal with local questions, the state with problems and policies of a more general nature; that before this implied method of amending the charter is applicable, it must appear that the legislature has adjudged some subject to be proper for state regulation and has declared a state policy with respect thereto. We are in accord with that contention of counsel. In Boise City National Bank v. Boise City, 15 Ida. 792, 100 Pac. 93, this court had under consideration the authority of that city to construct sewers and to levy assessments for the payment thereof, and to regulate those matters in which the local community alone was interested, and the court there held that the provisions of the city charter must control and not the general law of the state. The court said: “In the case at bar, it is clear that the construction of sewers and the levying of assessments for the payment therefor are matters of local concern in which the local community is alone interested and in which the state at large has no special interest.” The — 704 — question presented for decision in that case was whether the provisions of the Boise City charter of 1907 in regard to constructing sewers and assessing the property benefited and collecting from the property owners the cost thereof was' the exclusive law by which those things must be done, or whether that charter was supplemented by the act of 1905 (Sess. Laws 1905, p. 113). It will be observed that the Boise City charter of 1907 was re-enacted and amended about two years subsequent to the general law of 1905, which law provided a complete method for building sewers and assessing the property benefited and collecting from the property owners the cost thereof, and applies to cities incorporated under the general law of the state. We held in that case that the special charter of Boise City could not be amended by general law, but that holding was applicable to the facts of that case, and the facts involved were relative to the construction of sewers and the levying of assessments for the payment therefor, and the court there held that that matter was of local concern, in which the staTe at large had no special interest, and as to those matters the charter could be amended only by special law. Sec. 2 of art. 12 of the constitution is as follows: “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.” Said section Avas construed by this court in Re Ridenbaugh, 5 Ida. 375, 49 Pac. 12, under the following facts: The city of Boise, operating under a special charter which gave it the right to regulate gambling, licensed Ridenbaugh to operate a gambling game in said city. While he was operating under said license, he was arrested under a general law of the state prohibiting gambling, and as a defense to said action he plead the license granted to him by the city of Boise. The court in passing upon that case said: “It was not the intention of the legislature or the framers of the constitution to empower the council of incorporated cities and towns to pass ordinances in conflict with the general laws of the state. The cardinal rule in construing constitu — 705 — tional, as well as statutory, provisions, is to discover and enforce the intention of those who made them.It was not the intention to permit or authorize the councils of incorporated cities to legalize, by ordinance, acts prohibited as criminal by the general criminal laws of the state, or to enforce ordinances in conflict with the general law. In case of a conflict the ordinance must give way. The ordinances authorized by the charter of Boise City must be in harmony with the general laws of the state.” The real distinction between the ease of Boise City National Bank v. Boise City, supra, and the Ridenbaugh case, is that the former involved a mere matter of local self-government and the latter a state policy, prohibiting gambling in the state. Special charter cities cannot by ordinance make acts lawful that are made criminal by the general law of the state. See. 2, art. 12, of the state constitution prohibits special charter cities from making or enforcing any local, police, sanitary or other regulation that is in conflict with its charter or the general law of the state. But it is contended that the local option law is not a declaration of a state policy; that it is not a general law; that it is local and special, and applicable only to the counties that adopt it; hence in no manner amends the special charter of the city of Lewiston. The local option law is made applicable to every county in the state alike, and its provisions become operative in any county upon the electors of such county complying with its provisions and holding an election to determine whether the sale of intoxicating liquors as a beverage shall be prohibited, and if at such election the majority of the electors vote in favor of prohibiting such sale, the law becomes operative in the county as provided by said act. A special law is one which applies only to an individual or to a number of individuals selected out of the class to which they belong, or to a special locality. (State v. Cal. Min. Co., 15 Nev. 234.) A law may be general, however, and have but a local application, and it is none the less general and uniform because it may apply to a designated class if it operates — 706 — equally upon all subjects for which the rule is adopted. In determining whether a law is general or special, the court will look to its substance and necessary operation as well as to its form and phraseology. (Ladd v. Holmes, 40 Or. 167, 91 Am. St. 457, 66 Pac. 714; Vol. 7 Words & Phrases, pp. 6578, 6579; Black’s Law Dictionary, p. 535, under title “General Law.”) In People v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793, 5 N. E. 596, the court had under consideration the question whether a certain law was general or special, and said: “Whether laws are general or not does not depend upon the number of those within the scope of their operation. They are general, ‘not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the laws. ’ Nor is it necessary, in order to make a statute general, that ‘it should be equally applicable to all parts of the state; it is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits described in the statute.’ ” (See, also, Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; People v. Wright, 70 Ill. 388.) In the case of Paul v. Gloucester Co., 50 N. J. L. 585, 15 Atl. 272, 1 L. R. A. 86, the court had under consideration a local option law. The law was attacked on the ground that it was local or special in its application and the court held: “The law is not in contravention of our constitutional provision that ‘the legislature shall not pass private, local or special laws regulating the internal affairs' of towns and counties.’ This inhibition in the constitution is not intended to secure uniformity in the exercise of delegated police powers, but to forbid the passing of a law vesting in one town or county a power of local government not granted to another.” The local option law is of general application to every county in the state. While it is left with the people of each county to say whether it shall be enforced in the county, that fact does not make it any the less a general law. It is applicable to every county in the state, and under its terms and provisions the electors of each county have a right to vote upon the question whether the sale or disposal of intoxicating — 707 — liquors as a beverage shall be prohibited in such county. Every county in the state may accept or reject it upon the same terms and conditions. It is clearly a “general law” within the meaning of that phrase as defined by the leading law-writers and the courts of last resort of the nation. The legislature has undertaken by this act to make a general law applicable to all of the counties in the state alike, as to whether the sale of intoxicating liquors shall be prohibited or not. It is almost universally recognized that indulgence in'intoxicating liquors leads to immorality, crime and pauperism, and that such liquors are in their nature dangerous to the morals, good order, health and safety of the people, and intoxicating liquors are not placed on the same footing with ordinary commodities. The business of selling such liquors has for many years, both in this country and in England, been regarded by legislatures and courts with disfavor, and it does not stand upon the same plane of utility and morality with the useful arts, trades and professions. (Joyce on Intoxicating Liquors, see. 76.) It has been held by a long line of decisions from the United States supreme court down that there is no inherent right in a citizen of a state or of the United States to sell intoxicating liquor by retail. (Id., sec. 77, and authorities there cited.) The right to engage in the retail liquor traffic is a mere privilege, and in defining the extent to which the privilege goes, the law should be strictly construed against the traffic. (Id., sec. 77. See, also, Woollen & Thornton on the Law of Intoxicating Liquors, sec. 88 et seq.) Considering the view that is generally held in regard to the retail liquor business, by .the adoption of the local option law the legislature intended to authorize the electors of each county to determine whether the sale of intoxicating liquors should be prohibited in the county. Sec. 7 of the local option law shows the intent of the legislature to make that law apply to all territory within a county, in special charter cities as well as cities incorporated under the general law. It provides, among other things, that “If a majority of the votes east at such election shall be in favor of the proposition submitted (that is, to prohibit the sale — 708 — of intoxicating liquors in such county), it shall thereafter be unlawful for the board of county commissioners of the county to grant any person, firm, association, corporation or club a license to sell or dispose of intoxicating, spirituous, malt or fermented liquors or wines within said county.” It is there declared that it shall be unlawful for a board of county commissioners to grant a license to sell or dispose of such liquors “within said county” — not within said county exclusive of special charter cities. Had the legislature intended to exclude special charter cities from the operation of said act, it would have been an easy matter to use clear and explicit language to that effect, but the phrase “within said county” has been used, which clearly means within every part and parcel of said county, and does not exclude special charter cities from the operation of said local option law. In sec. 63 of the special charter of Lewiston, which section authorizes the council of that city to license, regulate and prohibit the sale of intoxicating beverages, it is also specified that its provisions do not empower the city of Lewiston to authorize anyone to do any act or engage in any business contrary to “the law of the land.” What does the phrase “law of the land” mean as used in said section? In the noted case of Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 518, 4 L. ed. 629, which has received the sanction of the courts, Webster said: “By the law of the land is clearly intended the general law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. It means every citizen shall hold his life, liberty and property under the protection of the general rules which govern society.” In many decisions it has been held that the “law of the land” and “due process of law” are synonymous phrases, and though verbally different, express the same thought and have the same meaning. In many of those decisions the phrase “due process of law” refers to procedure according to the law of the land, which process in each state is regulated by its own laws. “Due process of law” affords a hearing before it condemns and renders judgment only after trial. And it is often stated that “due process of law” — 709 — is that constitutional right which provides that no citizen shall be deprived of life, liberty or property except as provided by law. It was held in Huber v. Riley, 53 Pa. 112, and in Kalloch v. Superior Court, 56 Cal. 229, that due process of law ordinarily implies and includes a complaint, a defendant, a judge, regular allegations, opportunity to answer and a trial according to some settled course of judicial proceeding.- The term “due process of law” relates primarily to the remedy or means of redress where rights are invaded, rather than to matters of substantive law. (Board v. Collins, 46 Neb. 411, 64 N. W. 1090.) The phrase “law of the land” in state constitutions imports a general public law equally binding upon every member of the community. (See authorities cited in vol. 3, Words & Phrases, p. 2232 et seq.) In Sheppard v. Johnson, 21 Tenn. 285, the court held that whether a statute is the law of the land, within the meaning of that term as used in the bill of rights, depends upon two propositions: (1) That the legislature had the power to pass it; (2) That it is a general and public law equally binding upon every member of the community. The phrase “due process of law” in many decisions refers more particularly to the procedure prescribed by statute for the protection of life, liberty and property, and the method of enforcing rights or obtaining redress for their invasion, while the phrase “law of the land” includes the remedial law as well as substantive law; it includes that part of the law which the courts are established to administer, as opposed to the rules according to which the substantive law itself is administered. The substantive law is that part which creates, defines and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. (Black’s Law Dictionary, under title “Substantive Law,” p. 1132.) The phrase “law of the land” as used in said see. 63 of the charter of Lewiston means the law of the state, so far as the provisions of said section are concerned, and it prohibits the city of Lewiston from authorizing “anyone to do any act or engage in any business contrary to the law of the land” — the — 710 — general law of the state. By the provisions of said section, the legislature has not abdicated the right to enact police regulations, to license, regulate, restrain and prohibit the sale of intoxicating liquors in said city. The city of Lewiston was not granted thereby the absolute power to regulate its own saloons without reference to the laws of the state. By the provisions of said sec. 63, the state has reserved to itself the ultimate right to control and govern the liquor traffic within the state. The city of Lewiston was given the right to regulate, restrain and prohibit it, but it was not given the right to violate the general police laws of the state by authorizing the sale of intoxicating liquors when such sales were prohibited by the general laws of the state. The legislature did not abdicate or delegate to the city of Lewiston its power of police regulation over intoxicating liquors. See. 63 authorized the city of Lewis-ton to license and regulate the sale of intoxicating liquors within the corporate limits of such city so long as licensing and regulating were not contrary to the general law of the state. So long as the state recognized the retail liquor business and licensed it, the provision of said charter would be operative, and the city might place additional restrictions and limitations upon the business within its corporate limits or might totally prohibit it; but when the general law prohibits it, there is nothing left in that business for the city to regulate. We therefore conclude that said local option law is a general law of the state, and the legislature in adopting it established thereby a state policy in regard to the regulation of the traffic in intoxicating liquors, and since the majority of the electors in Nez Perce county have voted in favor of prohibiting the sale of such liquors as a beverage in said county, the county commissioners are prohibited from issuing a license to retail intoxicating liquors to any person within the corporate limits of the city of Lewiston or within said county. The judgment must therefore be affirmed, and it is so ordered. Costs awarded to respondent. Ailshie, J., concurs.