Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-11-01
SALE OF INTOXICATING LIQUOR


Acting Attorney General Ben
mex X. Smith submitted two
opinions Saturday, one on the
powers of county commissioners
in regulating and fixing the rate OF
licenses for the sale Of intoxicating
liquors and the other the rights OF
impecunious defendants in civil and
criminal cases.
The first opinion is addressed to
County Attorney Joseph Eckersley Of
Loa, Wayne county and is as follows:
I'VE have considered your favor of
recent date asking for a construction
of sub division 20 OF section Il of the
laws of Utah of 1886 which empowers
the board of county commissioners to
license for the purpose of regulation
and revenue oil and every Kind OF busi-
ness, not prohibited by law and trans
acted and carried on in their respec-
tive counties outside the limits of in
corporated cities, and to fix the rates Of
license tax upon the same and provide
for the collection thereof, provided
that n person deemed worthy and who
is unable to obtain n livelihood by
manual labor may be given the
privilege to hawk. peddle and vend
goods and merchandise, except intoN-
lcatng liquors, without the payment
whether, under the provisions OF this
section, the county commissioners Of
your county would be authorized to
fix the rate of license tax for the sale
OF spurious or Intoxicating liquors at
less than 5000 as the same was pro-
vided for in section 2l5S, Vol. | of the
Compiled Laws OF 1883
Chapter H. Vol /, of the Compiled
Laws of 1887 part of which Is the
section last above referred to, contains
n legislative restriction upon the sale
Of Intoxicating liquors. the inspec-
ton of the same and n definite manner
OF procedure in issuing licenses and
regulating the traffic in Intoxicating
liquors. And under said law. the COM
mlssioners. after n proper petition,
statement and bond have been filed
with them, are authorized to determine
the amount OF the license to be paid.
provided that the rate shall not be less
than $500 nor more than S1,2oO for one
year.
Section 81 Page Eel of the laws OF
1896 authorizes the board of county
commissioners of the several counties
TO exercise Jurisdiction and powers un-
der such limitations and restrictions
us are prescribed by law. Subdivision
20, first above referred to is Il general
grant of power to the commissioners
TO license business generally. The
laws of 1896 do not expressly repeal.
law of 1883. The question arises. does
the latter act, the law of 1896 being
directed to the general subject, alter
or implicitly repeal the law of 1855
upon this subject which was directed
toward special object The general
rule is, that unless there be something
in the latter law, so far repugnant
and irreconcilable as to Indicate an
intent to repeal the former,
they should be read together, and
the general statute should be so con-
strued as to exclude from its opera
tion the cases which have been pro-
vlded for by the special one. The
legislature Of the territory having al
ready given its attention to and pro-
Nided Off the regulation and licensing
of the liquor traffic, it is not unrea-
sonable to presume that the legisln-
ture of 1896 did not intend to alter
these special provisions by II suisse
Quent general enactment. and differ
ent construction should not be placed
upon two acts of the legislature like
these In question unless II contrary
intention Is manifested in explicit lam
suage, or unless there was something
to Indicate that the general act was
intended to embrace the special cases
within the previous one, There is no
difficulty in giving both of these acts
full force and effect, there being no
real repugnanCy.
II would therefore advise you. that
the law OF 1855 referred to, Is sim In
force. and that your county commits
sioners In fixing the rate of license for
the sale OF Intoxicating liquors should
be governed by the restrictions there
In contained"
The other opinion Is addressed to
County Attorney ii. l.. Steed of Brig
ham City, Box Elder county, and
reads as follows:
1--WE are in receipt of your inquiry
OF the 2lst inst. in reference to tho
construction of chapter "a of the Ses-
sion Laws of 1897, entitled, An act e
allow poor persons to begin, prosecute
etc, suits in law and equity, and IL
answer to your question as to whether
the defendant in criminal case who
makes the oath prescribed in sectior
of said act is entitled to have the
fees and mileage OF his witnesses paid
we would advise you that the chapter
just referred to seem to deal exclu
sively with the right of poor persons
to prosecute and defend civil action
only. At page 81 chapter "A, section
of the Session Laws OF 1899 provision
IS made for the payment by the thel
Territory of Utah OF the defendant
witnesses in criminal cases. Including
mileage and per diem, which must b.
done upon an order of the court, upol
affidavit being made by the defend
ant that he is impecunious and unabl
to pay the per diem and mileage o
his witnesses and that the evidence o
the witnesses sought to he so sum
moned az the peoples expense Is ma
tcrial f0- the defendants defense
This section would seem to cover full
the case you suggest and II is GU
opinion that proceedings such as yo
suggest should be only under tina
statute The law of 1897 refers TO
different subject and Is not In ccnnlc
with or repugnant to the laws Of lSg
above referred to- There is nothln
In the law OF 1897 which would indi
cate an intent to have that act TAX
the place Of or repeal the law Of 1885,
would therefore advise you that
defendant in a criminal case Ghoul
make the showing required in the lay
of 1882"