¶1(dissenting in part).
¶2Whether Sec. 23-922, I.C., which by its terms limits those who may obtain a bartender’s permit to male persons over the age of twenty-one years and also by direct terms or necessary inference, prohibits equally qualified female persons from securing a bartender’s permit, is constitutional, is not, in my opinion, before us for determination. It is a well recognized rule that courts do not pass on constitutional questions except in circumstances where the necessity of such decision is required. In the present situation appellant did not have a bartender’s permit, nor is there any showing that she ever made application to secure one. Therefore the fact that she was tending bar without such permit is sufficient to dispose of the case.
¶3However, as the majority opinion seems to be based on the conclusion that the statute prohibiting female persons from securing a bartender’s permit is constitutional, I shall comment briefly on the constitutional question discussed in the 'majority opinion and apparently determined.
¶4*210I think depriving a female person of the right to follow a business or calling solely because of sex deprives such person of a property right guaranteed to all persons under the 14th Amendment to the Constitution of the United States and Sec. 1, Art. I of the State Constitution.
¶5The Legislature may not by discrimination enact a law prohibiting a class of persons because of sex from engaging in any lawful calling open to all others. The right to work is one of our precious liberties. A female person is by the interdiction imposed denied the right to make a living equally with a male person. She is denied the freedom of an opportunity to engage in what is recognized as a lawful business on an equality with males. There is no sound basis for such a distinction.
¶6The statute here attacked deprives female persons of the freedom of opportunity enjoyed by others.
¶7A female person over twenty-one years of age may enter bars, purchase drinks for herself or others, sell beer, frequent places where intoxicating liquors are sold and exercise freedoms accorded others.
¶8In the present situation appellant, when the charged offense occurred, was and still is the' wife of the licensee, hence a half owner in a business recognized by the statutes as a lawful calling.
¶9Under the married woman acts, in recent years enacted in most states, female persons have all the rights generally accorded to males. Harsh rules of the common law have been abrogated. The wife has a legal status of her own that is not submerged in the identity of her husband. The statute here attacked arbitrarily and for no reason discriminates between male and female owners of a retail liquor establishment.
¶10The law in question is arbitrary, discriminatory and unreasonable, has no basis for such a classification and does not promote morals or the welfare of the community. I also direct attention to Chapter 61, 1957, S.L., page 104, which by its terms authorizes the issuing of a bartender’s permit to the wife of a licensee.
¶11The case relied on to sustain the constitutionality of the statute in question, Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163, was decided by the Supreme Court of the United States by a division of the Justices, three Justices dissenting.
¶12The Supreme Court of Florida in Brown v. Foley, 158 Fla. 734, 29 So.2d 870 declared a similar regulation as here being considered unconstitutional.
¶13In my opinion a statute with no reason for its basis, which deprives a female person of the right to follow the same calling as a male person under the same circumstances, is unconstitutional and void.