The constitutional amendment under consideration provides:
"the legislature of the State of Idaho shall have full power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes . . . ."
It will be noted the amendment provides the legislature "shall have full power and authority to permit, control and regulate" the sale of intoxicating liquors. An examination of the majority opinion discloses that, in discussing and determining the meaning of the amendment, the majority completely eliminates and ignores the word permit. No attempt is made to define that word as it is used in the amendment in connection with the words "control and regulate"; that is to say, no attempt is made to construe the phrase "permit, control and regulate." If the court can eliminate one word from a constitutional amendment, it, of course, could, if it chose to do so, eliminate any number of words and by the process of elimination give an amendment an entirely different meaning from that intended.
But what does the amendment mean, construed as it was written and ratified? That, in turn, involves the meaning of the word "permit," as used in the phrase "permit, control and regulate." Funk Wagnalls New Standard Dictionary defines the word permit thus:
"To grant leave to by express consent or authorization; empower expressly; authorize; as his license permits him to practice medicine."
"The presumption is that words in a constitution are to be given the natural and popular meaning in which they are *Page 233 usually understood by the people who adopted them," as held in the majority opinion. Applying that rule, then, the presumption is that the word "permit" was used in its natural and popular sense, for instance, to license one to practice medicine, or, as in this case, to license one to engage in the business of selling intoxicating liquor. When, therefore, the word "permit" is used in connection with the words "control and regulate," the phrase must mean that the legislature shall have full power to permit, in other words, to license, and having provided for that, to control and regulate the sale of intoxicating liquors by appropriate legislation. Nowhere in the amendment is there the slightest hint it was the intention to authorize the legislature to put the State of Idaho into the business of selling intoxicating liquors.
The majority cite and rely upon McCrary v. McCrary, (Tex.Civ.App.) 230 S.W. 187; State v. Marshall, 100 Miss. 626,56 So. 792, Ann. Cas. 1914A, 434; Welsh v. Gist, 101 Md. 606,61 A. 665; Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88;In re Wan Yin, 22 Fed. 701, 702. None of these cases, exceptNoey v. City of Saginaw, involved a constitutional question.Noey v. City of Saginaw, supra, involved the interpretation of an amendment to the Constitution of Michigan reading: "The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof."
In that case (Noey v. City of Saginaw), notwithstanding the fact the amendment authorized the legislature to establish a "liquor control commission" which should "exercise complete control of the alcoholic beverage traffic within this state," the Supreme Court of Michigan did not construe the Michigan amendment to mean the legislature of that state could create a "liquor control commission" and authorize the commission to engage in the liquor business, nor did the Michigan legislature attempt to do that. It provided for the licensing of the sale of intoxicating liquor by the "liquor control commission" which, I insist, is the only thing the legislature of this state could do (unless it prohibited the sale altogether) under our constitutional amendment. *Page 234
Furthermore, in Re Wan Yin, supra, cited and relied upon by the majority, that court defines the words "control and regulate" exactly and contrary to what the majority hold those words to mean. I quote:
"The words 'to control' and 'to regulate,' ex vi termini, imply to restrain, to check, to rule and direct. And, in my judgment, the power to do either of these implies the right tolicense, as a convenient and proper means to that end" (italics mine).
The majority uphold the constitutionality of subdivision "b" of section 308, chapter 222, 1939 Session Laws, pp. 465, 470. Under that subdivision the state liquor board may, as frankly conceded by counsel for plaintiff, employ an attorney and pay him as much or more than the salary of our Attorney General, which, at present, is $4,000 per annum. It was further conceded by such counsel that the state liquor board may, if the statute be held constitutional, employ as many attorneys, and pay them whatever compensation, it chooses. It follows, then, that the state liquor board has the power (by reason of the construction given the amendment by the majority), if it cares to exercise it, to set up a counter-part of the Attorney General's office, for instance, a solicitor general (to distinguish him from the Attorney General), first assistant, second assistant, and so on, and pay them (because the state liquor board has ample funds at its disposal) a salary as high as, or higher than, the Attorney General and his assistants receive. Surely, the people of this state had no thought, when they ratified the amendment, that it would ever be given an interpretation which would make such a thing possible.
It is my view that under the amendment in question the power of the legislature to legislate is limited either to prohibiting the sale of intoxicating liquors altogether, or to providing for the licensing of the sale of intoxicating liquors by appropriate legislation. Hence, the entire statute is unconstitutional in that it authorizes the state liquor board to engage in the business of selling intoxicating liquors, instead of providing for the licensing of the sale of intoxicating liquors by the board or absolutely prohibiting the sale of such liquors. I, therefore, dissent from the majority opinion. *Page 235