Kopp v. State , 100 Idaho 160 ( 1979 )

BAKES, Justice,

dissenting:

I dissent from the majority’s conclusion that a population estimate approved by the United States Bureau of Census for use in administering various federal programs is the “special census” to which the Idaho legislature referred in. I.C. § 23-903. A brief review of the ordinary meaning of “census,” the state of the law at the time the term “special census” was added to the Idaho statute, and the federal statutory provisions make apparent the error in the majority’s reasoning.

The word “census” is derived from the Latin word “censere,” meaning to count or to reckon, and in the Roman language historically meant “a numbering of the people.” 14 Am.Jur.2d, Census § 1 (1964). In modern times courts have ruled that “census” refers to “an official enumeration of the population or inhabitants” of an area, 14 Am.Jur.2d, supra; “the singly counting up of the population [or] an official counting of heads,” State ex rel. Morrison v. Nabours, 79 Ariz. 240, 286 P.2d 752, 756 (1955); “a finding of the population and not an estimate,” State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, 597 (1915); and “not merely a sum total, but an official list, containing the names of all inhabitants,” City of Huntington v. Cast, 149 Ind. 255, 48 N.E. 1025, 1026 (1898). See City of Bisbee v. Williams, 83 Ariz. 141, 317 P.2d 567 (1957). Although the Idaho act at issue in this case does not specifically define “census”, the act does provide that the words used “shall be given the ordinary and commonly understood and accepted meaning.” I.C. § 23-902. The ordinary and accepted meaning of “census” is an official enumeration of the population and does not refer to a mere population estimate or projection. See Webster’s Third New International Dictionary (1971).

Moreover, courts have commonly interpreted the term “census” to mean the United States decennial census, particularly where that is the only census regularly taken in a state. 14 Am.Jur.2d, supra. When the phrase “as established in the last preceding census” in I.C. § 23-903 is read together with the provision in I.C. § 23-904 that liquor license fees be based on the “census taken under the direction of the congress of the United States in the year 1950 and every ten (10) years thereafter,” it is obvious that in I.C. § 23-903 the legislature was referring to the regular decennial census conducted by the federal government.

At the time I.C. § 23-903 was amended in 1963 to include “any subsequent special census conducted by the United States Bureau of the Census,” 1963 Idaho Sess.Laws, ch. 215, § 1 at 622, the regular decennial censuses were not the only censuses taken by the United States Bureau of Census. In addition to the decennial census the Bureau of Census was also conducting “special censuses.” The special censuses were generally an interim census taken of a particular municipality or political subdivision by the United States Bureau of Census but at the expense and request of that municipality or political subdivision. See 28 Fed.Register 120 (Jan. 4, 1963); 14 Am.Jur.2d, supra, § 2; City of Compton v. Adams, 33 Cal.2d 596, 203 P.2d 745 (1949). These special censuses were apparently taken by a house to house canvas in a manner similar to that employed in taking a decennial census. City of Compton v. Adams, supra.

The majority opinion’s observation that 13 U.S.C. § 196, which provides for and defines special censuses, was enacted in 1976, subsequent to the 1963 amendment of I.C. § 23-903 adding the term “special census” to Idaho law is correct. However, the majority’s suggestion that the term “special census” in I.C. § 23-903 therefore could not have referred to the same thing as the term “special census” in 13 U.S.C. § 196 is simply incorrect. Although § 196 was enacted in 1976, the congressional reports on that legislation make it clear that the provision for special censuses did not create a new type of census but merely made the law conform to existing practices. See S.Rep.No.94—1256, § 11, reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 5463, 5468-69; H.R. Conf.Rep.No.94-1719, at 13-14, reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 5476, 5481. For example, on January 4, 1963, the Bureau of Census published a regulation specifying the conditions under which it would conduct a “special population census” for state and local governmental bodies. 28 Fed.Reg. 120 (Jan. 4, 1963). In City of Compton v. Adams, supra, the California Supreme Court considered a “special census” conducted in .1948 by the United States Bureau of Census of the City of Compton at the request and expense of that city. Moreover, the California court’s opinion, which was released in 1949, states “that for many years the Bureau of the Census has taken special censuses of various regional areas.” 203 P.2d at 746. In sum, the majority’s suggestion that the Bureau of Census had not been conducting “special censuses” at the time the legislature amended I.C. § 23-903 in 1963 is historically incorrect.

However, the fact that the Bureau of Census was in fact conducting special censuses did create certain problems under various state statutes which provided that the latest federal census would be the basis for certain governmental regulations or activities. Idaho’s liquor licensing statute prior to the 1963 amendment was typical of that problem. Some courts had ruled that such statutory provisions were not satisfied by a special census taken of a limited geographical area. See Sproul v. State ex rel. Smith, 153 Fla. 892, 16 So.2d 109 (1944) (liquor license granted according to county population); Harp v. Abrahamson, 248 Iowa 222, 80 N.W.2d 505 (1957) (apportionment of road use tax funds according to municipal population). Other courts had ruled that such statutes referred to either the regular decennial census or a special census. See Bisbee v. Williams, supra (sales tax apportioned according to municipal population); Compton v. Adams, supra (establishment of municipal court); 14 Am.Jur.2d supra, § 6. It was in those circumstances, with the Bureau of Census taking special censuses of limited geographical areas and the various state courts differing in the effect to be given those special censuses, that the Idaho legislature amended I.C. § 23-903 in 1963 to include “subsequent special census conducted by the United States Bureau of the Census . . . .” The legislative intent of that amendment should be obvious: the legislature intended to make clear that the issuance of a liquor license could be based upon either a regular decennial census or a special census conducted by the Bureau of Census. However, there is nothing in the legislative history of I.C. § 23-903 to indicate that the legislature ever intended to abandon the original concept of basing the issuance of liquor licenses on an actual census in favor of basing the issuance on a mere estimate or projection of the population.

The majority opinion concludes that any population estimate or projection approved by the United States Bureau of Census may be relied upon in issuing liquor licenses pursuant to I.C. § 23-903. In doing so, however, the majority not only misinterprets Idaho statutes but misapprehends the significance of the federal statutes. Although current federal statutes require the Bureau of Census to produce and publish “current data on total population and population characteristics” annually for some governmental units and biennially for others, 13 U.S.C. § 181(a), Congress had never equated those population estimates and projections with a census, either the decennial census or a special census. 13 U.S.C. § 183(b) provides that such “current data on total population” is not to be applied “to any law of the United States which, for purposes of determining the amount of benefit received by State, county, or local units of general purpose government, provides that only population or population characteristics data obtained in the most recent decennial census may be used in such determination.” Although Congress requires in § 181 the Bureau of Census to produce and publish current population data, Congress nevertheless continued to insist in § 141(a) that the Bureau of Census conduct a regular decennial census, and in § 196 to conduct special censuses at the request and expense of state and local governmental units. In short, the population estimates and projections published by the United States Bureau of Census pursuant to 13 U.S.C. § 181 are not the equivalent under federal law of a census, either decennial or special, and I find no indication that the Idaho legislature ever intended that the issuance of liquor licenses pursuant to I.C. § 23-903 be based on such estimates rather than an official census.

Regarding the majority’s reliance on the rule that administrative construction of a statute is entitled to weight in determining its meaning, this Court stated in Ware v. Idaho State Tax Commission, 98 Idaho 477, 481, 567 P.2d 423, 427 (1977) that, “Whether or not an ■ administrative construction of legislative language is correct is ultimately a question for judicial decision, especially where, as here, the language is devoid of any ambiguity.” Here, there is no ambiguity in the requirement that the number of licenses issued shall be on a population basis based upon “the last preceding census, or any subsequent special census . . . .” Therefore, this Court should do as we did in Ware and follow the express wording of the statute.

I conclude therefore that the license at issue in this case was improperly issued and that the judgment of the district court must be reversed.