Fletcher v. Paige

220 P.2d 484, 124 Mont. 114, 19 A.L.R. 2d 1108, 1950 Mont. LEXIS 16
CourtMontana Supreme Court
DecidedJune 30, 1950
Docket8973
StatusPublished
Cited by23 cases

This text of 220 P.2d 484 (Fletcher v. Paige) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fletcher v. Paige, 220 P.2d 484, 124 Mont. 114, 19 A.L.R. 2d 1108, 1950 Mont. LEXIS 16 (Mo. 1950).

Opinions

MR. JUSTICE METCALF:

On December 23, 1949, the Montana liquor control board directed a letter to all Montana licensed brewers and beer wholesalers containing the following paragraph: “The board directs that from and after April 1, 1950, there will be no further advertising of beer by electric or illuminated sign, contrivance or device or on any hoarding signboard, billboard or other like place in public view. The date of April 1, 1950 has been fixed so that no undue hardship will be worked by a demand of immediate compliance. Advertising by other legitimate means in accordance with the regulations of the board is, of course, not affected. ’ ’

The board’s letter quoted section 4-170, R. C. M. 1947, and added “advertising beer or malt liquor on a brewery kept by a brewer are exempt under that statute provided the board permits such advertisements. ’ ’

In this action the plaintiff is seeking a declaratory judgment as to the validity of the above order of the Montana liquor control board. The. plaintiff filed his amended complaint on February 8, 1950, the defendant board answered, and the plaintiff replied. Thereafter both parties moved for a judgment on the pleadings. Judgment was rendered for the plaintiff and the defendant liquor control board has appealed from that judgment.

The State Liquor Control Act. sections 4-101 to 4-239, R. C. M. 1947, and the Montana.Beer Act, sections 4-301 to 4-356, R. C. M. 1947, were companion measures originally enacted as Chapters 105 and 106, respectively, of the Laws of 1933. The Montana liquor control board administers both Acts. R. C. M. 1947, secs. 4-107, 4-112, 4-113, 4-306, 4-307. These statutes are in pari materia and must be construed together, State v. Bowker, [117]*11763 Mont. 1, 7, 205 Pac. 961; State ex rel. Special Road District No. 8 v. Mellis, 81 Mont. 86, 92, 261 Pac. 885, and together with the amendments thereto are all one homogeneous and consistent body of law.

In section 2 of Chapter 105, Laws of 1933, the word “liquor” was defined by subsection (i) as follows: “ ‘Liquor’ or ‘Liquors’ means and includes any alcoholic, spirituous, vinous, fermented, malt or other liquor, which contains more than one per centum (1%) of alcohol by weight.”

“Beer” was defined in the companion Montana Beer Act by section 2 of Chapter 106, Laws of 1933, in subsection (b) : “ ‘Beer’ means any beverage obtained by alcoholic fermentation of an infusion or decoction of barley, malt and hops, or of any other similar products in drinkable water.”

Those statutes are now sections 4-102 and 4-302, R. C. M. 1947, respectively. So that even before the passage of Chapter 209, Laws of 1949, the definition of beer in section 4-302, R. C. M. 1947, was applicable throughout the State Liquor Control Act and the Montana Beer Act whenever it occurred in either Act. R. C. M. 1947, sec. 12-215.

Section 4-170, R. C. M. 1947, enacted as section 65 of Chapter 105, Laws of 1933, is as follows:

“No person within the state shall * * *
“ (3) exhibit or display, or permit to be exhibited or displayed, any advertisement or notice of or concerning liquor by an electric or illuminated sign, contrivance or device or on any hoarding signboard, billboard or other like place in public view or by any of the means aforesaid, advertise any liquor. This subsection shall not apply to any advertisement respecting heer or malt liquor on a brewery or premises where beer or malt liquor may be lawfully stored or kept by a brewer under the law; provided that such last mentioned advertisement has first been permitted in writing by the Board and then subject to the directions of the Board; * * * ’ ’

In 1933, as we have seen, the term “liquor” included all malt [118]*118or other liquor and therefor included beer, so that in forbidding the advertising of liquor the legislature also forbade the advertising of beer. Further indicating the plain intention of the legislature to prohibit billboard advertising of beer is the express exception in the proviso: ‘ ‘ This subsection shall not apply to any advertisement respecting beer or malt liquor on a brewery or premises where beer or malt liquor may be lawfully stored or kept by a brewer under the law * * * ”

Where a statute directs that a thing may be done in one manner it ordinarily implies that it shall not be done in any other manner. In providing that signs advertising beer or malt liquor can be placed upon a brewery or premises where beer or malt liquor was lawfully stored or kept, it logically follows that beer cannot be advertised by signboard or billboards in any other place. This is merely an application of the familiar maxim of expressio unius est exclusio alterius.

The question now is as to the effect of the amendment to section 4-102 by the 1949 legislative assembly. Subsection (i) was amended by the addition of the following exception: “ (i) ‘Liquor’ or ‘liquors’ means and includes any alcoholic, spirituous, vinous, fermented, malt or other liquor, which contains more than one percent (1%) of alcohol by weight but shall not mean or include beer as that term is defined in the Montana beer act by subsection (b) of section 2815.11, Revised Codes of Montana, 1935, as amended by Chapter 30, laws of the twenty-fifth legislative assembly of Montana, 1937, and as permitted to be manufactured and/or sold or transported in and into this state or possessed therein in the manner and under the conditions prescribed in the ‘Montana beer act’.”

Did the legislature by this amendment qualifying the definition of liquor, intend to permit the signboard or billboard advertising of beer on places other than breweries or premises where beer was stored?

If Chapter 209, Laws of 1949, has by implication permitted the signboard or billboard advertising of beer, then by implication [119]*119the legislature has repealed the proviso in subsection (3) of section 4-170 that beer may be advertised on breweries or premises where beer may be stored. Otherwise section 4-170, while prohibiting signboard or billboard advertising of liquor, will permit signboard or billboard advertising of beer under all conditions, thus rendering meaningless the exception that the subsection shall not apply to advertising on breweries and storage places for beer.

“Every word, phrase, clause, or sentence employed is to be considered and none shall be held meaningless if it is possible to give effect to it. ’ ’ Campbell v. City of Helena, 92 Mont. 366, 384, 16 Pac. (2d) 1, 4; Mid-Northern Oil Co. v. Walker, 65 Mont. 414, 428, 211 Pac. 353; In re Wilson’s Estate, 102 Mont. 178, 193, 56 Pac. (2d) 733, 105 A. L. R. 367.

The general rule is that for a subsequent statute to repeal a former statute by implication, the previous statute must be wholly inconsistent and incompatible with it. United States v. 196 Buffalo Robes, 1 Mont. 489, approved in London Guaranty & Accident Co. v. Industrial Accident Board, 82 Mont. 304, 309, 266 Pac. 1103, 1105. The court in the latter case continued: ‘ ‘ The presumption is that the Legislature passes a law with deliberation and with a full knowledge of all existing ones on the same subject, and does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable. State ex rel. Aachen & Munich Fire Ins. Co. v. Rotwitt, 17 Mont. 41, 41 Pac. 1004; and Jobb v. County of Meagher, 20 Mont.

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Fletcher v. Paige
220 P.2d 484 (Montana Supreme Court, 1950)

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Bluebook (online)
220 P.2d 484, 124 Mont. 114, 19 A.L.R. 2d 1108, 1950 Mont. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fletcher-v-paige-mont-1950.