Kopp v. State

595 P.2d 309, 100 Idaho 160, 1979 Ida. LEXIS 416

• Court: Idaho Supreme Court
• Decided: May 23, 1979
• Docket: 12674
• Status: Published

Opinions

McFADDEN, Justice.

This appeal challenges a district court judgment upholding the issuance of a 16th retail liquor license for use in the city and county of Twin Falls, Idaho. The principal issue raised is whether the state liquor license in question was issued in accordance with the legal requisites of I.C. § 23-903. Since our resolution of this issue is dispositive, other issues raised by the parties will not be discussed.

The facts of this case are uncontroverted. I.C. § 23 — 903 limits the number of retail liquor licenses that can be issued. It provides in relevant part as follows:

License to retail liquor. — The director of the department of law enforcement is hereby empowered, authorized, and directed to issue licenses to qualified applicants, as herein provided, whereby the licensee shall be authorized and permitted to sell liquor by the drink at retail and, upon the issuance of such license, the licensee therein named shall be authorized to sell liquor at retail by the drink, but only in accordance with the rules and regulations promulgated by the director and the provisions of this act. No license shall be issued for the sale of liquor on any premises outside the incorporated limits of any city except as provided in this act and the number of licenses so issued for any city shall not exceed one (1) license for each one thousand five hundred (1,500) of population of said city or fraction thereof, as established in the last preceding census, or any subsequent special census conducted by the United States bureau of the census

(Emphasis added.)

On November 15, 1976, the State Department of Law Enforcement issued a 16th retail liquor license for use in the city and county of Twin Falls to defendant-respondent L. James Koutnik. This license was issued on the basis of a 1973 population figure for the City of Twin Falls, prepared by the United States Bureau of the Census pursuant to 13 U.S.C. § 181 (1954).¹ Mr. Jean Milar, the City manager of Twin Falls, obtained the 1973 population figure from a document entitled “Population Estimates and Projections” which was prepared by the United States Bureau of the Census for revenue-sharing purposes. The document indicates that the population of the City of Twin Falls increased by 1,702 people between April 1, 1970 and July 1, 1973.

Plaintiffs-appellants Venita Beglan and Eugene Kopp are residents of the city and county of Twin Falls, Idaho. On November 23, 1976, they filed a complaint in district court alleging that the issuance of a 16th liquor license for the city of Twin Falls violated I.C. § 23-903 because it was not based upon a census conducted by the United States Bureau of the Census. Appellants’ amended complaint asked the district court to revoke the state liquor license issued to respondent Koutnik and to enjoin the State Department of Law Enforcement from reissuing the same until a proper determination of census was made.²

After a full hearing, the district court concluded that the issuance of a state liquor license to L. James Koutnik was supported by census figures provided by the United States Bureau of the Census, and such issuance and the use and operation thereunder was legally permissible pursuant to I.C, § 23-903. Judgment was entered in favor of respondents and this appeal followed.

This is the first time this court has been called upon to interpret that portion of I.C. § 23-903 which limits the number of available liquor licenses according to population. The statutory language in question reads:

. the number of licenses so issued for any city shall hot exceed one (1) license for each one thousand five hundred (1,500) of population of said city or fraction thereof, as established in the last preceding census, or any subsequent special census conducted by the United States bureau of the census

I.C. § 23-903 (Emphasis added.)

Appellants claim the above language requires retail liquor licenses to be issued on the basis of a federal decennial census or a federal “special census” as that term is defined in 13 U.S.C. § 196 (1976). That statute provides in relevant part as follows:

The Secretary may conduct special censuses for the government of any State, or of any county, city, or other political subdivision within a State, . . . upon payment to the Secretary of the actual or estimated cost of each such special census. The results of each such special census shall be designated “Official Census Statistics”.' These statistics may be used in the manner provided by applicable law.

13 U.S.C. § 196 (1976). Respondents, on the other hand, contend that the Department of Law Enforcement’s interpretation of I.C. § 23 — 903 is correct. According to the Department of Law Enforcement, the legislative intent of I.C. § 23-903 was to allow retail liquor licenses to be issued on the basis of current population data from the United States Bureau of the Census, whether it be decennial, biennial or annual. Under the Department’s interpretation of I.C. § 23 — 903, municipal population can be established by reference to an official report prepared under the authority of the Secretary of Commerce, United States Bureau of the Census, and so certified.

It is the general rule that an agency charged with the duty of administering an act is impliedly clothed with power to construe it as a necessary precedent to administrative action. Oklahoma Real Estate Commission v. National Business & Property Exchange, 238 F.2d 606, 610 (10th Cir. 1956); Clark County School District v. Local Government Employee Management Relations Board, 90 Nev. 442, 530 P.2d 114 (1974); Washington Township of Nemaha County v. Hart, 168 Kan. 650, 215 P.2d 180 (1950); Bodinson Manufacturing Co. v. California Employment Comm’n, 17 Cal.2d 321, 109 P.2d 935 (1941). The Department of Law Enforcement is responsible for administering and enforcing Idaho’s Retail Sale of Liquor by the Drink Act, I.C. §§ 23-901—23-949. I.C. § 23-932 gives the director of the Department broad powers to carry out the provisions of the Act, including the power to prescribe “the proof to be furnished and the conditions to be observed in the issuance of licenses ■. . . .”

The construction given a statute by the executive and administrative officers of the State is entitled to great weight and will be followed by the Court unless there are cogent reasons for holding otherwise. McCall v. Potlatch Forests, 69 Idaho 410, 413, 208 P.2d 799 (1949); Idaho Public Utilities Comm’n v. V-1 Oil Co., 90 Idaho 415, 412 P.2d 581 (1966); Breckenridge v. Johnston, 62 Idaho 121, 108 P.2d 833 (1940); Ada County v. Bottolfsen, 61 Idaho 363,102 P.2d 287 (1940). As indicated above, the Department of Law Enforcement has interpreted I.C. § 23-903 to mean that for the purpose of issuing retail liquor licenses, municipal population can be established by a certified official report of population prepared under the authority of the Secretary of Commerce, United States Bureau of the Census. Mr. Richard L. Cade, Chief of the Bureau of Liquor Law Investigation, Department of Law Enforcement, testified that the Department has issued approximately a dozen retail liquor licenses on the basis of this interpretation. Mr. Cade also testified that he relied upon the Department’s interpretation of I.C. § 23-903 when he issued respondent L. James Koutnik a retail liquor license on the basis of a 1973 population figure for the City of Twin Falls, established by the United States Bureau of the Census for revenue sharing purposes pursuant to 13 U.S.C. § 181 (1954).

The Department of Law Enforcement’s interpretation of I.C. § 23-903 is supported by the legislative history of the Retail Sale of Liquor by the Drink Act. Enacted by the Idaho legislature in 1947, the Act authorized the retail sale of liquor by the drink within the incorporated limits of any city or village. Originally, the Act did not limit the number of available licenses according to population. However, the Act did provide that license fees would be based upon a municipality’s population, as determined by “The census taken under the direction of the Congress of the United States in the year 1940 and every ten years thereafter . ” unless the State of Idaho makes a direct enumeration of the inhabitants thereof. (1947, ch. 274 § 4g, p. 874.) Section 4g, which was subsequently codified as I.C. § 23-904, was amended in 1959 to read “The census taken under the direction of the congress of the United States in the year 1950 and every ten (10) years thereafter .. . .” I.C. § 23-904, am. 1959, ch. 118 § 2, p. 255. That same year, the Idaho legislature amended I.C. § 23-903 to limit the number of available liquor licenses according to population. However, instead of using the above quoted language from I.C. § 23-904, which clearly refers to the federal decennial census, the legislature stated that:

. the number of licenses so issued for any city or village shall not exceed one license for each 1,500 of population as established in the last preceding census, . . •.

I.C. § 23-903, am. 1959, ch. 118 § 1, p. 254 (emphasis added). In 1963 the above provision was amended so that it now reads:

. the number of licenses so issued for any city or village shall not exceed one license for each 1,500 of population as established in the last preceding census, or any subsequent special census conducted by the ■ United .States Bureau of the Census, .

I.C. § 23-903, am. 1963, ch. 215 § 1, p. 622.

Where a statute with respect to one subject contains a certain provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed. General Electric Co. v. Southern Construction Co., 5 Cir., 383 F.2d 135, cert. den. 390 U.S. 955, 88 S.Ct. 1049, 19 L.Ed.2d 1148 (5th Cir. 1967); City of Port Hueneme v. City of Oxnard, 52 Cal.2d 385, 341 P.2d 318 (1959); Richfield Oil Corp. v. Crawford, 39 Cal.2d 729, 249 P.2d 600 (1952); State v. Welkos, 14 Wis.2d 186, 109 N.W.2d 889 (1961); 82 C.J.S. Statutes § 366b. We think it significant that the legislature did not use the language from I.C. § 23-904 when it stated the basis for establishing population under I.C. § 23-903. Since both I.C. § 23-903 and I.C. § 23-904 were amended in 1959, it is difficult to believe that the legislature would use different language if it intended municipal population to be established by the federal decennial census under both statutes. If the legislature intended population to be established by the federal decennial census under I.C. § 23-903, it could have said so, as it did in I.C. § 23-904.

Moreover, appellants’ contention that I.C. § 23-903 requires population to be established by a federal decennial census or a “special census” as that term is defined in 13 U.S.C. § 196 (1976) fails to take into account the dates the relevant statutes were enacted and amended. As noted above, from 1959 to 1963 the relevant language from I.C. § 23-903 stated: “as established in the last preceding census, . .” The words “or any subsequent special census conducted by the United States Bureau of the Census” were added by way of amendment in .1963. 13 U.S.C. § 196 (1976), which provides for and defines special censuses, was not enacted by the United States Congress until October 17, 1976. (Pub.L. 94-521, § 11(a), Oct. 17,1976, 90 Stat. 2464.) Consequently, the Idaho legislature could not have intended the term “special census” in I.C. § 23-903 to be restricted to the federal definition of special census in 13 U.S.C. § 196 (1976). Prior to 1976, federal law did not expressly provide for, or define, special censuses. However, since 1929 the Director of the Census has been authorized to furnish transcripts of tables and other census records, and to make special statistical compilations and surveys for State or local officials upon the payment of the actual or estimated cost of such work. 13 U.S.C. § 8(b) (1954) (formerly section 218 this title). The only logical conclusion is that the Idaho legislature was referring to these “surveys” and “special statistical compilations” when it amended I.C. § 23-903 to allow population to be established by a “special census conducted by the United States Bureau of the Census.” The fact that the legislature characterized such surveys and compilations as a “census” further' suggests that the legislature intended current population data from the United States Bureau of the Census to satisfy the requirements of I.C. § 23-903.

This court is of the opinion that the Department of Law Enforcement’s interpretation of I.C. § 23-903 is correct. The district court judgment is affirmed.

SHEPARD, C. J., and DONALDSON and BISTLINE, JJ., concur.

2 . Appellants also asked the court to enjoin the issuance of city and county liquor licenses to respondent Koutnik and to revoke any such license that had already been issued. By stipulation, the city and county of Twin Falls waived formal appearance and participation in this suit, agreeing that the validity of the licenses which they issued respondent Koutnik will depend on the validity of the State liquor license.