dissenting.
I.
The majority’s void-for-vagueness analysis errs in two respects. First, it ignores state constitutional law and applies only federal constitutional law. Second, it applies the wrong analysis to the issues raised in this case. In that manner the wrong result is obtained.
The heart of Mr. Kleiber’s appeal is that the City’s ordinance 9-9-1 is unconstitutionally vague. Kleiber also contends that the ordinance is arbitrary and capricious, and invites selective enforcement.1 The ordinance in question is:
9-9-1: UNLAWFUL TO OBSTRUCT SIDEWALKS:
(A) Obstructing streets, alleys and sidewalks. It shall be unlawful for any person to obstruct any street, alley or public sidewalk within the city.
(B) Structures on sidewalks. It shall be unlawful for any person to store, install or maintain any material, vehicle, structure or fixture upon any public sidewalk within the city, except as hereinafter in this chapter set forth.
(C) Exceptions. The following structures or fixtures may be installed and maintained in and on a public sidewalk in compliance with the following standards:
(1) All utility poles and equipment, fire hydrants, traffic signs and signals, benches, receptacles for decorative trees and plants, and all other structures, receptacles and fixtures installed or placed with the approval of the State, or of the city are deemed to conform to acceptable standards, and are lawful.
The district court agreed with Mr. Kleiber and provided the parties with its reasoning:
The void for vagueness doctrine requires that a statute or ordinance define prohibited conduct with sufficient definitions that ordinary people can understand what activity is proscribed so that they may conform to the requirements of the *506law, and in a manner which does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, [461] U.S. [352], 103 S.Ct. 1855 [75 L.Ed.2d 903] (1983); Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186 [71 L.Ed.2d 362] (1982); Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976). As noted by the Supreme Court in Kolender, 103 S.Ct. at 1858,
Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimum guidelines to govern law enforcement.” Smith [v. Goguen], supra, 415 U.S. [566] at 574, 94 S.Ct. [1242] at 1247-1248. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a stan-dardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Id. at 575, 94 S.Ct. at 1248.
An examination of the ordinance involved here reveals that while it is declared to be unlawful to maintain vehicles or structures upon public sidewalks, certain exceptions are provided for. Supposedly the ordinance provides for exceptions for structures meeting certain standards, but a closer view shows that the section (9-9-l(C)) merely lists a number of items which are excepted and states that “structures, receptacles and fixtures installed or placed with the approval of the State, or of the city are deemed to conform to acceptable standards, and are lawful.” No standards are given by which city or state approval may be obtained. This appears to be the very type of “arbitrary and discriminatory enforcement” which the U.S. Supreme Court condemned under the void-for-vagueness doctrine.
A closely analogous case is that of International Society for Krishna Consciousness, Inc. v. Englehardt, 425 F.Supp. 176 (W.D.Mo.1977). In that case, a member of a religious society brought a 1983 action seeking to enjoin the enforcement of a city ordinance prohibiting soliciting and distribution of handbills at the municipal airport without written permission of the airport director. The Court held that the city could, if it wished, absolutely prohibit solicitation at the airport, but having provided for exceptions, some standards must be established for granting those exceptions:
On its face, the city ordinance here in issue contains no standards whatsoever to guide the Airport Director’s discretion in permitting solicitations on airport premises. Because the city has opened this forum, and because plaintiff’s desired conduct is protected by the First Amendment, the right to carry out that conduct cannot constitutionally be left to the unbridled discretion of the licensor.... The fact that the director routinely denies permits to all organizations does not render the ordinance acceptable where its unconstitutionality shows plainly on its face.
425 F.Supp. at 180.
Similarly, in the instant case the ordinance provides for exceptions to the rule, but provides no standards for granting of those exceptions, leaving them rather, to the “unbridled discretion” of the city council. And while the case above did deal with important First Amendment rights, the right to engage in a lawful business enjoys constitutional protection as a right existing under fundamental law. See e.g., Messerli v. Monarch Memory Gardens, Inc., 88 Idaho 88, 397 P.2d 24 [34] (1964).
The defendant City asserts the proposition that a license issued by mistake or contrary to its own ordinances can be revoked. I do not take issue with this proposition (which the City has appropriate authority to sustain), but I think it is clear that in the revocation process the *507licensee is entitled to due process of law. R., pp. 67-68 (emphasis added).
The majority opinion ignores the district court’s opinion as though it had never been written, and instead launches into an inapplicable quotation from the Flipside case. It is said that because Ordinance 9-9-1 does not infringe upon any constitutional right, it it is therefore constitutional. P. 1277. It is much to be doubted that even the city will be impressed by such a circuitous, shallow argument.
A correct analysis of this issue inevitably leads to the conclusion that the district court was correct in holding the ordinance is unconstitutionally vague as applied to the conduct with which Kleiber was charged. The district court also seems to have been of the view that the ordinance would not have withstood a challenge for facial vagueness.
Controlling state constitutional law from State v. Newman, 108 Idaho 5, 696 P.2d 856 (1985) is applicable. There this Court addressed a challenge to the constitutionality of Idaho’s Drug Paraphernalia Act,2 with the issue being whether the Act was unconstitutionally vague on its face. We applied the reasoning of Flipside in holding that the Act did not violate federal standards for facial void-for-vagueness challenges. Id. at 12-15, 696 P.2d at 862-65.
Great pains were taken to point out that Flipside involved a federal facial void-for-vagueness challenge, and that facial challenges differ from as-applied vagueness challenges:
We do not wish to be understood as suggesting that this test is also the appropriate test to be used in cases where a statute, as applied to a particular individual in light of the conduct with which he or she is being charged, is being challenged as being vague. On the contrary, standards governing constitutional challenges to acts as applied to an individual are not as difficult to meet as those governing facial challenges. See 69 A.L. R.Fed. at 29 § 3(b). Id. at 12, n. 11, 696 P.2d at 862, n. 12.
The reason for this distinction is readily apparent. As noted in Newman, citing to Flipside:
The test for finding a statute void-for-vagueness on its face, and thereby in violation of due process, is whether the law is impermissibly vague in all of its applications. Flipside, supra, 455 U.S. at 498, 102 S.Ct. at 1193. That is, whether the Act is invalid in toto. Steffel [v. Thompson], 415 U.S. [452,] 474, 94 S.Ct. [1209,] 1223 [ (1974) ]. Id. at 12, 696 P.2d at 862 (emphasis original).
Justice Shepard has recognized this distinction before. In State v. Carringer, 95 Idaho 929, 930, 523 P.2d 532, 533 (1974), he said for a majority of the Court:
Common to most if not all vagueness cases is the principle that the words of the questioned statute should not be evaluated in the abstract but should be considered with reference to the particular conduct of the defendants. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Smith v. Goguen, supra (White, J., concurring in the judgment).
We are therefore required to consider the facts giving rise to this action. (Emphasis added.)
Three years later, Justice Shepard repeated this same proposition in State v. Lopez, 98 Idaho 581, 588-89, 570 P.2d 259, 266-67 (1977).3
Kleiber had no need to establish that Ordinance 9-9-1 is “impermissibly vague in all of its applications.” Newman, supra, 108 Idaho at 12, 696 P.2d at 862. Nevertheless, by inappropriately turning to Flip-side, the majority avoids deciding the issue *508decided below and in turn now presented to us, which is whether the ordinance is unconstitutionally vague as it was applied to Kleiber. I would hold that it is. The ordinance’s wording is patently unclear in several respects and fails to provide “reasonable opportunity to know what is and is not prohibited conduct....” Id.
The confusion Kleiber confronted is further demonstrated where the same city council which passed Ordinance 9-9-1 also issued a business license to Kleiber— for which he paid a $20.00fee — to operate a mobile restaurant within the City of Idaho Falls.
The city’s position amounts to this: Under paragraph C of its ordinance, “Exceptions,” anything which might otherwise be a structure or an obstruction on a sidewalk, paragraphs A and B, is nonetheless lawful, provided it is so installed or placed with the approval of the city. That which is lawful cannot be unlawful. The approval results in it being deemed to conform to acceptable standards. Shortened, the city concedes: if we give our approval, no problem, lawful it is. But, on the other hand, should we have a change of mind and withdraw our approval, then your pushcart is no longer deemed to conform to acceptable standards, and, a fortiori, you and your pushcart must go to jail for your violation of our law.
Newman set out well the reasons underpinning the vagueness doctrine which are applicable here:
In essence, three values are protected: (1) that of protecting innocent people from being prosecuted by giving them reasonable opportunity to know what is and what is not prohibited conduct; (2) that of avoiding the arbitrary and discriminatory enforcement of the law by providing explicit standards for those charged with enforcing the law; and (3) that of avoiding the delegation of basic policy matters to law enforcement personnel, judges, and juries for resolution on an ad hoc basis, with the all-too-real possibility of arbitrary and discriminatory application, by clearly defining the standards under which an individual’s innocence or guilt can be determined. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Id.
Today’s majority does little to protect those values.
The majority sets up a straw-man defense, and skirts around it for an easy touchdown: “The ultimate issue herein is whether Kleiber, by purchasing a business license from the City of Idaho Falls, obtained a vested or fundamental right to conduct a business on the public side-walks_” P. 1277. Not so. The “ultimate” issue is whether Ordinance 9-9-1 is unconstitutionally vague as applied to Kleiber. Obviously it is.
II.
The majority is not troubled by the fact that the city on day one licensed Kleiber. On day two it claims Kleiber cannot legally operate under that license. Putting aside the mishandling of the vagueness issue, I disagree with the majority holding that the city cannot be held estopped from enforcing its ordinance in this situation and under the circumstances here attendant.
The majority relies upon Harrel v. City of Lewiston, 95 Idaho 243, 247, 506 P.2d 470, 474 (1973) for its anti-estoppel resolution. In Harrel the Court was split 3-2. I thought at the time of Harrel that the dissent was more persuasive than the majority opinion, and turn to it now:
I ... disagree with the novel assertion by the court that the principle of estoppel should not be applied against a municipality within the State of Idaho. Since at least 1909 the Supreme Court of Idaho has been committed to a different rule than that laid down by the majority herein. In that year Mr. Justice Ail-shie, speaking for the court on rehearing in Boise City v. Wilkinson, 16 Idaho 150, 177, 102 P. 148 (1909) stated:
“We recognize that as a general rule, the doctrine of estoppel does not apply to municipal corporations, and we are not unmindful of the fact that the *509courts of many states have absolutely refused to apply it to such corporations. We are not prepared, however, to announce an unalterable and unexceptionable rule in this state, which would inevitably result in perpetrating wrong and injustice in exceptional cases like this. Courts of equity are established for the administration of justice in those peculiar cases where substantial justice cannot be administered under the express rules of law, and to adopt a rigid rule that recognizes no exceptions would be to rob such courts of much of their efficacy and power for administering even-handed justice. The people in their collective and sovereign capacity ought to observe the same rules and standard of honesty and fair dealing that is expected of a private citizen. In their collective governmental capacity, they should no more be allowed to lull the citizen to repose and confidence in what would otherwise be a false and erroneous position than should the private citizen. ”
That same language has been reiterated as recently as 1965 in Dalton Highway District of Kootenai County v. Sowder, 88 Idaho 556, 401 P.2d 813 (1965).
It is now desirable, I believe, to turn to the facts of the instant case and state them baldly to determine whether the case at bar presents an exceptional case which would otherwise result in perpetrating wrong and injustice. Also we must determine whether the city has observed “the same rules and standard of honesty and fair dealing that is expected of a private citizen." In my judgment the city has not so acted in the present case.
I suggest in this case that the City of Lewiston has acted wrongfully and to the detriment of one of its citizens. I suggest further that this is just the case as Mr. Justice Ailshie had in mind when he argued that to adopt a rigid rule that recognizes no exceptions “would be to rob such courts of much of their efficiency and power for administering even-handed justice. ” In conclusion, I would note that the only Idaho authority cited in the majority opinion for the non-application of estoppel against a municipality are the cases of Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173 (1952), and Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948). I regret to point out that neither of said cases provides authority for the majority statement. Yellow Cab and Sinsel only held that no person could acquire title to city streets since such were held in trust for the public. In Sinsel and in Yellow Cab parties sought to have a warehouse and a cab stand respectively authorized, although both were located in a city street. In Sinsel the court pointed out specifically the distinction between the usual estoppel situation and “the exercise by a city of its police power over a street open and in use by the public.” Id. at 249-51, 506 P.2d at 476-78 (Shepard, J., dissenting, Bakes, J., concurring therein) (emphasis added).
As I was early to learn in this business, three beats two. As I learned at a much earlier age, two plus one equals three. If Harrel was wrongly decided, and two justices — who sat in Harrel and who still sit today — have emphatically declared that it was, here then, is a strong third vote to overrule it, and reincarnate the Court’s holding in the language of Justice Ailshie in the Wilkinson case. Bakes and Shepard, JJ., remain to be heard from.
. Interestingly, Justice Huntley and I, working entirely independently on our separate opinions, have both observed the potential for selective enforcement of the ordinance.
. The Act is found at I.C. §§ 37-2701(bb), -2734A, -2734B, and -2774(a)(7).
. As pointed out in my Lopez opinion, Justice Shepard, in his first Lopez opinion, more accurately restated the holding of United States v. National Dairy Products Corp., supra: “The sufficiency of a statute ... must be determined in light of the conduct with which [a defendant] is charged," not what he did.