To give a complete understanding of the facts and origin of this prosecution, it should be stated, and I quote from the record:
"January 11, 1946, the defendant [appellant] Musser, pursuant to an announced intention so to do, went to the coffee shop room of the Hotel Boise, in Boise City, Ada County, Idaho, at about 10 o'clock A.M., where he had requested the prosecuting attorney and the attorney general of the State of Idaho to be present and arrest him if they desired, for taking a drink; that at this particular time and place there were between 75 and 100 persons present, consisting of patrons and spectators, at which time the defendant ordered a sandwich and then took from his pocket State's Exhibit No. 4, containing whiskey of more than four per cent. alcohol, and poured a drink therefrom and drank it, and he was thereupon arrested." Pages 5 and 6, transcript.
In other words, this case is prosecuted to test the validity of sec. 4-802 of the Boise City Code, 1936. The decisive, as well as the only, question presented by the record in this case, goes to the validity of that section. If that section conflicts with the "Idaho Liquor Act" (chap. 222, S.L. 1939), as contended by appellant, then, of course, it would constitute an unlawful exercise of police power, rendering it invalid. But it does not appear the legislature legislated upon the subject of drinking intoxicating liquor in public places; hence, sec. 4-802, supra, could not conflict with chap. 222, supra, and I may add, it does not appear the section conflicts with any provision of the state constitution.
Furthermore, this court has repeatedly held and is firmly committed to the rule the constitutionality of a statute will not be passed on unless essential to a decision of the case. Albrethsen v. State, 60 Idaho 715, 718, 96 P.2d 437; Howell v. Board of Com'rs of Ada County, 6 Idaho 154, 53 P. 542; McGinness v. Davis, 7 Idaho 665, 65 P. 364; Jack v. Village of Grangeville, 9 Idaho 291, 74 P. 969; Mills Novelty Co. v. Dunbar, 11 Idaho 671, 83 P. 932; Logan v. Carter, 49 Idaho 393,288 P. 424; In re Allmon, 50 Idaho 223, 294 P. 528; Garrity v. Board of County Com'rs, 54 Idaho 342, 343, 34 P.2d 949; State Ins. Fund v. Board of Com'rs of Owyhee County, 54 Idaho 359,34 P.2d 956; Kimbley v. Adair, 32 Idaho 790, 189 P. 53; In re Brainard, 55 Idaho 153, 39 P.2d 769.
It will be noticed the majority opinion expressly holds the legislature has not legislated upon the subject of drinking intoxicating *Page 223 liquor in a public place. That "the general law is silent upon this subject. There is, therefore, no conflict between the general law and the municipal ordinance." Hence, that that section (4-802, supra) is valid. That, of course, fully disposes of the case at bar. Why, then, brush aside the long established rule that this court will not pass upon theconstitutionality of a statute unless essential to a decisionof the case? Hence, I do not concur in that part of the majority opinion passing on the constitutionality of the ordinance, but the judgment, nevertheless, should be affirmed because there is no conflict between the ordinance and the statute, chap. 222, Session Laws 1939.
MILLER, J., concurs with the views above expressed by HOLDEN, J.