City of Grafton v. Four G's, Inc. ( 1977 )

PEDERSON, Justice

(dissenting).

I do not understand how we can reach the conclusion that the City of Grafton cannot control conduct in a licensed liquor establishment in Grafton because of the State obscenity control statute (Chapter 12.1-27.-1, NDCC).

After stating that this Court is ill-disposed to finding repeals by implication, and that the Legislature has explicitly empowered local governing bodies to regulate the operation of dealers in alcoholic beverages, including authorizing the prohibition of “various forms of entertainment on the premises” (§§ 5-02-09 and 40-05-01(29), NDCC), the Court, in effect, proceeds to find that §§ 5-02-09 and 40-05-01(29) are repealed by implication because of § 12.1— 27.1-01(3), NDCC.

These statutes are not in conflict, and therefore there is no reason to apply § 1— 02-07, NDCC. There is nothing unusual about city ordinances prohibiting the same activity as is prohibited by State law. The Nebraska holding in Midtown Palace, Inc. v. City of Omaha, 193 Neb. 785, 229 N.W.2d 56 (1975), should not be discounted on the basis that our statutes have this peculiar difference.

This Court said in Thielen v. Kostelecky, 69 N.D. 410, 287 N.W. 513 (1939), that “the retail liquor traffic has generally been deemed one peculiarly subject not only to state but to local regulation.” [Emphasis added.] There is a legitimate reason for the obscenity control statute distinguishing between the control to be exercised over the liquor dispensing industry and other activities. The majority opinion practically wipes out the distinction.

The question should be answered in the negative and the case should be remanded with directions to the Walsh County Court With Increased Jurisdiction to affirm the municipal court conviction.