Adolph Coors Company, a foreign corporation, authorized to do business in this state has petitioned for a writ of prohibition. It seeks to prevent the Utah Liquor Commission from enforcing its Regulation No. 20 against the corporation. The applicable part of that regulation reads (Section 1(b):
(b) No brewer, dealer or wholesaler shall adopt or use in the State of Utah any container for beer differing in size from the following:
11 oz. of beer whole barrels
12 " " " half barrels
22 " " " quarter "
24 " " " eighth "
32 " " "
64 " " "
The corporation desires to sell its beer in 8 ounce bottles. It contends the Commission has no power to enact the quoted regulation. The Commission threatens criminal prosecution if the corporation enters into such sales. The Commission has demurred to the Coors Company petition. Under Sections 114 and 150 of the Liquor Control Act, Laws 1935, c. 43, the corporation may be prosecuted for selling *Page 248
any alcoholic beverage contrary to the provisions of the act or of the regulations. If convicted, the punishment is a fine of $1,000 and forfeiture of its license (sec. 161) if the fine is not paid. The definition of alcoholic beverages includes beer. Section 7 authorizes the Commission to make such regulations not inconsistent with the act as it may deem necessary for carrying out the provisions thereof and for its efficient administration; and provides that those regulations shall have the same force as if they formed a part of the act. Section 83 provides that beer may be sold in this state in the manner and under the conditions prescribed in the act or in the regulations, and not otherwise. Section 6(e) provides that subject to the provisions of the act, the Commission shall control the sale and delivery of alcoholic beverages in accordance with the provisions of the act and the regulations. Section 3 defines regulations as regulations made by the Commission.
It is quite apparent from these sections that no distinction exists between a violation of a section of the act and a violation of a Commission regulation, so far as subjecting the violator to prosecution is concerned.
A very important provision of the Act so far as this case is concerned is this:
"Section 96. * * * It shall be unlawful for any person to * * * sell * * * bottled beer in containers of a capacity of more than sixty-four fluid ounces * * *."
In Bird Jex Co. v. Funk, 96 Utah 450, 85 P.2d 1, 2 831, 835, this court said:
"* * * In the exercise of the rule-making power, the Commission must be guided by the intent and purpose of the legislature as found by a reading and interpretation of the whole act and every part thereof."
This court said further: *Page 249
"Where the legislature delegates to an administrative agency power to make rules and regulations, such delegation must be accompanied by a declared policy outlining the field within which such rules and regulations may be adopted. * * *"
The field of regulation as to volume of each container is fixed by the quoted part of section 96 — all sizes of containers up to and including 64 fluid ounces are lawful sizes. The legislature has not said that the Commission may determine what sizes shall be lawful and what sizes unlawful. The legislature has said the Commission may regulate the sale of beer which the legislature has authorized to be sold; it has not said that the Commission may prohibit that which the legislature has authorized to be done. This might be illustrated by an assumed case of an attempt upon the part of the Commission to say that a sale of beer in 64 ounce containers is prohibited. There we would have a direct conflict between the legislative enactment and the Commission's regulation. If the Commission can not say that a 64 ounce container shall be prohibited, it can not say an 8 ounce container shall be prohibited.
It should be kept in mind that the legislature has provided that the Commission's regulations shall not be inconsistent with the provisions of the act (Section 7). It should be kept in mind that the regulations are as binding as the sections of the act. The legislature did not intend, however, delegating its powers to the Commission. It gave the Commission power only within the limitation fixed by itself.
In the brief of the Commission is found the suggestion that 8 ounce bottles might be pawned off upon the public as 11 ounce bottles. This suggests to the mind of the writer an illustration of the difference between regulating and prohibiting the sale of beer within the limit of container size fixed by the Legislature. To require that each container be labeled as to its capacity would be an example of regulating within the limits fixed by the legislature. *Page 250
Section 2 of the act reads (L. 35, c. 43, p. 57);
"This act shall be deemed an exercise of the police powers of the state for the protection of the public health, peace and morals; to prevent the recurrence of abuses associated with saloons; to eliminate the evils of unlicensed and unlawful manufacture, selling and disposing of alcoholic beverages; and all provisions of this act shall be liberally construed for the attainment of these purposes."
Regulations enacted for the purpose of carrying out the provisions of the act and for its efficient administration should not be adopted without regard to the purpose as given by Section 2. If the sale of 64 ounces of beer is not detrimental to the health, peace and morals of the citizens of the state, it is hard to see why the sale of any given quantity less than 64 ounces is detrimental. Though there may be some administrative advantage to the Commission in eliminating 8 ounce containers, that advantage must be waived, if, to get it, a regulation must be passed inconsistent with the sections of the act.
What about an interpretation of the 64 ounce limitation as follows: Containers larger than that must be unlawful, containers of that size or smaller may, if the Commission so rules, be unlawful? This would place in the hands of the Commission the power to prohibit the sale of beer in 3 any size container. The legislature has said that the sale of beer is a lawful enterprise. The Commission under such an interpretation could for all practical purposes make it unlawful. The legislature did not intend to give any such power to the Commission. The sale of beer in this state is a legitimate private enterprise — the sale of liquor is not, as the latter is limited to state sales. By section 6(i) it is provided that the Commission may determine the nature, form and capacity of all packages to be used for containing liquor kept or sold under this act. No such provision was made as to beer — why not? Simply because the legislature did not intend that the Commission should have such power where the enterprise was a private one. *Page 251
We are of the opinion that the quoted part of Regulation No. 20 is invalid; and that any act of the 4 Commission pursuant to it is void and not within its delegated powers.
Should prohibition lie in this case? In a recent case of Allen v. Lindbeck, 97 Utah 471, 93 P.2d 5 920, 925 we held:
"The rule usually applied is that even though an inferior court or tribunal is threatening to act without or in excess of jurisdiction prohibition is not available unless it be also shown that there is no `plain, speedy and adequate remedy in the ordinary course of law,'" citing authorities.
We also said:
"But these cases establish that under our statutes this court may, in the exercise of a sound judicial discretion, grant the writ even where there is an adequate remedy in the ordinary course of law."
We emphasized in that case the fact that the procedure was in the nature of a criminal proceedings, and thus compelling petitioner to rely upon his remedy of appeal would foster further quasi criminal litigation. It would seem that the principles of the Allen v. Lindbeck case are applicable here.
The corporation here, if forced to its remedy by appeal, must enter upon a course of conduct which will subject it to criminal prosecution throughout the state, subject it to fines, if convicted, and to a possible forfeiture of its license, if it fails to pay the fines (sections 114, 150 and 6 161). Should a forfeiture occur it would mean the loss of the right to make sales held lawful by the Commission as well as those held illegal. Under such circumstances we feel that to force the case through the ordinary channels of procedure would be an injustice.
The alternative writ should be, and is hereby made permanent. *Page 252
MOFFAT, J., concurs.