Fulton v. State

54 So. 688 | Ala. | 1911

MAYFIELD, J.

This bill Avas filed by the state, on the relation of the Attorney General, to abate and enjoin a “liquor nuisance,” as defined and provided for by two acts of the Legislature, one known as the “Carmichael Act,” and the other as the “Fuller Act.” — Acts 1909, pp. 8, 63. The bill also prayed for a writ of seizure to issue as for the goods and chattels alleged to be used in connection Avith, and in carrying on, the nuisance, all of which is provided for in the two acts of the Legislature to which reference is made. Upon the filing of tlie bill, verified by affidavit, and its material averments being supported by independent appropriate affidavits, a temporary injunction and writs of seizure issued, in accordance with the prayer of'the bill. The bill and process seem to conform to the statutory requirements so made and provided. The respondents interposed demurrers to the bill, and moved the court to both dissolve the injunction and discharge the writs of seizure and restore the property seized to respondents. The demurrer and the motion were heard and overruled and denied. From these interlocutory orders and decrees, this appeal is prosecuted.

■ The first proposition asserted and insisted upon by appellants is that both the Carmichael and Fuller acts are inoperative because repealed by a subsequent act of the Legislature, of August 26, 1909, which re-adopted the Code of 1907. — Acts 1909, p. 174.

The readopting act is short, and reads as follows:

“S’ection 1. That the three printed volumes published by authority of law in 1907, known as the Political, Civil, and Criminal Codes, containing sections 1 to 7900 both inclusive together with the rules of practice of courts, be and the same are hereby adopted as the Code of Alabama.”

“Sec. 2. That all acts of the Legislature, passed at the special sessions of the Legislature, altering, amending or repealing either the sections of the Code, or the acts of the Legislature passed at the general or special sessions are unaffected by the adoption of this Code.”

The Carmichael and Fuller acts were both passed at the special session at which the act readopting the Code was passed. The Carmichael act was passed on the 9th day of August, and the Fuller act on the 25th day of August, and the readopting act was passed on the 29th day of August of the same year (1909.)

It is argued — with some force and plausibility— that, as the Code was thus readopted after the passage of these two general acts, the repealing sections contained in the Code so adopted worked the repeal of all general laws, including the two in question, which were not excepted by section 2 of the readopting act.

Section 10 of the present Code (the retaining and repealing clause of all our previous Codes), after enumerating certain general and local laws not to be repealed by the Code (which enumeration does not include the acts in question), concludes as follows: “But subject to the foregoing provisions, all statutes of a public, general and permanent nature, not included in this Code, are repealed.”

But for section 2 of the readoption act, the two statutes in question would probably be repealed by the above-quoted provision in the Code as readopted.

It therefore becomes necessary to construe the act readopting the Code, and especially section 2 thereof, to see if the Carmichael and Fuller acts were excepted from the general laws repealed by the Code as readopted. In construing this statute, as all others, we should ascertain the intent or will of the lawmakers, and give the statute that effect, if that will or intent is consistent with a reasonable interpretation of all statutes in general (be they penal, or beneficial, restrictive, or enlarging of the common law) four things are to he discerned and considered:

“(1) What was the law before.the making'of it?

“(2) What was the mischief and defect for which the law did not then provide?

“(3) What remedy the Legislature hath. resolved and appointed to cure the disease of the commonwealth?

“(4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle intentions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the remedy, according to the true intent of the makers of the act, pro bono publico.”

“(5) But, if the intention of the lawmakers has not been carried into effect by the language used, it is better that we should abide the words of the statute, than to reform it according to the supposed intention.

“(6) When the language is not only plain, but admits of but one meaning, the task of interpretation can hardly be said to arise (and incidental rules which are mere aids, to be invoked when the meaning is clouded, are not to be regarded). It is not allowable, says Vat-tel, to interpret what has no need of interpretation. The Legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. But whilst it may be conceded that where its provisions are ambiguous, and the legislative intent is doubtful, the effect of several possible constructions may be looked at in order to determine the choice, it is very certain that when once the intention is plain it is not the province of a court to scan its wisdom or its policy. Its duty is not to malte the law reasonable, but to expound it as it stands, according to the real sense of the words.”—Hilliard v. State, 100 Ala. 634, 13 South. 756.

(7) In the construction of statutes, they should be so interpreted, if practicable, that the intention of the Legislature may be carried into effect, and the spirit of the enactment preserved. Under the influence of this rule, the letter is frequently sacrificed to the general purpose of the act.—Kennedy’s Heirs and Executors v. Kennedy’s Heirs, 2 Ala. 572.

(8) The office of construction is to ascertain what the language of an act means, and not what the Legislature may have intended. “Index animi sermo.” The court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time; meaning of the law being the law itself.—Maxwell v. State, 89 Ala. 150, 7 South. 824.

(9) This rule of construction does not imply that the letter shall control the spirit. A thing may be within the letter of a statute and not within the meaning or spirit, or it may be within the clear meaning or spirit and not within the letter. Courts, in construing statutes, often look less to the letter than to the context, the spirit, or the meaning of the statutes to arrive at the true intent of the lawmaker. Statutes are often drawn in artificially. Apt words are not always used, and perspicuity and precision are not always observed, by those who draft statutes. The whole statute under construction, as well as others, must sometimes be looked to, to ascertain the true meaning and intent.—Thompson v. State, 20 Ala. 54; Atkins’ Case, 18 Wall. 301, 21 L. Ed. 841.

(10) Two or more statutes or laws are often in pari' materia, and where they are they should all be looked to, in order to ascertain the meaning and intent of each.

(11) Bepeal by implication is not favored. It is only when two la^vs are so repugnant to or in conflict with each other that it must be presumed that the Legislature intended that .the latter should repeal the former. This is never the case if there be a reasonable field of operation, by a just construction, for both; for then they will both be given effect. This is preferable to repeal by implication.—Riggs v. Brewer, 64 Ala. 282; Herr v. Seymour, 76 Ala. 270; Wyman v Campbell, 6 Port. 219, 31 Am. Dec. 677. Each statute which constitutes a part of a system of laws should, if practicable, be so construed as to make the system consistent in all its parts; each is thus considered a part of the whole.

(12) That construction of a statute is correct which gives effect to the intent of the lawmaker. The intent, of the lawmaker is the law. If the meaning of the langage used is clear and certain, there is neither room nor occasion for interpretation. It is only when the meaning of the language used in. a statute is not obvious that courts are needed or authorized to construe them. But if the meaning of the language used is uncertain, or the intent rests in inference, then construction or interpretation by courts is useful and proper.

(13) Statutes may be-repealed by implication; the courts do not, however, favor such repeal, and if, by a fair and reasonable construction .of a later and former statute, the two can be reconciled, and each left to operate, that construction will he adopted.—Smith v. Speed, 50 Ala. 276; Iverson v. State, 52 Ala. 170; Enloe v. Reike, 56 Ala. 500; Parker v. Hubbard, 64 Ala. 203; Cook v. Meyer, 73 Ala. 580; Roberts v. Pippen, 75 Ala. 103; Jackson v. State, 76 Ala. 26; Herr v. Seymour, 76 Ala. 270.

(14) A general repealing clause does not operate a repeal of an existing statute relating to the same subject-matter, not in conflict with the provisions of the act; it is no more than a legislative declaration of the necessary effect of the act if the clause had not been inserted.—Ogbourne v. Ogbourne, 60 Ala. 616.

(15) A statute attempting to repeal a number of sections of the Code by naming them and also attempting to re-enact.them would possibly not repeal them; but where, in addition, it enacts a new law in substitution of the Code provisions, it operates a repeal of such sections.—Turnipseed v. Jones, 101 Ala. 493, 14 South. 377.

Applying these rules of construction • to the readopting act, we are constrained to hold that neither the Carmichael nor the Fuller act was repealed, and that they were, at the filing of the bill, in force in this State, in so far as the provisions thereof are constitutional, if otherwise constitutionally enacted — questions we do not decide, except so far as they are raised on this appeal and are necessary to a decision of the case under consideration. Each of the acts was passed at a special session of the Legislature — the same special session Avhich passed the readopting act. Each altered, amended, or repealed, expressly or by reasonable implication, sections of the Code, or acts of the Legislature passed at the general or special sessions thereof; and was therefore unaffected by the adoption of the Code. Each Avas therefore within the letter of the excepting or retaining clause of the act adopting the Code. We do not think that the Legislature intended, by the use of the present participles, “altering,” “amending” or “repealing” to include, and thus from repeal by the adoption of the Code, those acts,, and those only, which are technically known in constitutional and statutory laAV as “altering,” “amending” or “repealing” statutes. That is to say, that they embraced those acts, and those only, the title and express purpose of which were to alter, amend, or repeal some sections of the Code, or some other statute. We think those words, as used in section 2 of the adopting act, include and save from repeal those acts which by reasonable implication alter, amend, or repeal, as well as those which expressly so repeal.

. We do not think that construction should be here adopted, which would limit the acts to be saved from repeal, to those acts which are technically known as altering, amending, or repealing statutes.

As has been held by this court repeatedly, a subsequent statute, revising the subject-matter of a former statute, and intended as a substitute for it, although it may not contain express words of repeal, will, on principles of law, as well as in reason- and common sense, so operate.—Ogbourne v. Ogbourne, 60 Ala. 616; Cahall’s Case, 61 Ala. 232; Lemay v. Walker, 62 Ala. 39; Scott v. Simpson, 70 Ala. 352.

Words are to be construed in the popular and plain sense in which they are generally understood, unless it clearly appears that they were intended to be employed in some other sense.—Harrison v. State, 102 Ala. 170, 15 South, 563. It would hardly be contended that there are very many intelligent people, male or female, in this state, that do not know that the Carmichael and Fuller bills were intended to, and did, alter, annul, or repeal existing laws, Code or statutory, on the subject of the liquor traffic. And each member of the Legislature that passed the bills, as well as the Governor who approved them, must be presumed to have known that they each altered, amended, and repealed certain acts passed at the general or special session of the Legislature, at which they were passed. The history of the recent legislation on this subject is well known by all the people in this state. Hence the Legislature, the Governor, and this court must be presumed to know it.

The acts in question are to be found in the Special Session, 1909, Acts, at pages 8-13 and 63-95. The first is known as the “Carmichael Act,” and the latter as the “Fuller Act.” The first was approved August 9, 1909 and the latter, August 25, 1909.

While each of these acts is a separate and independent legislative enactment, both form a part of what is known as the prohibition laws of this state. They are the last two of. a number of general prohibition statutes passed in this state at the last general and special sessions of the Legislature. Among the general prohibition statutes which preceded these two may be mentioned the act of November 23, 1907 (Acts S. S'. 1907, pp. 71-79), known as the Ballard Act,” which has been before this court for construction in the cases of State ex rel. Collman v. Pitts, 160 Ala. 133, 49 South. 441, 686, 135 Am. St. Rep. 79; State ex rel. v. Skeggs, 154 Ala. 249, 46 South. 268; also the act approved February 26, 1907, known as the “Local Option Prohibition Act” (Acts 1907, G. A. pp. 200-205) ; also, the act of March 13, 1907 (page 377), known as the “Dispensary Act.”

There were a great number of other acts passed at the last general and special sessions relating to the •subject of regulating and prohibiting the sale and other •disposition of intoxicating liquors. The last two acts named were codified, and were adopted on July 27, 1907, and readopted on August 26, 19.09, as a part of the Code law of this state, except in so far as repealed, modified, or substituted, by the Ballard, Carmichael, •and Fuller acts, or other acts passed subsequently to the acts adopting and readopting the Code. There are now, and were, before the passage of these hills, other Code provisions relating to the regulation and prohibition of the liquor traffic, if not repealed or substituted by these or other acts.

Recurring to the history of legislation in this state, passed at the last regular and two special sessions of the Legislature, upon the subject of the liquor traffic (as we should do, when construing acts passed at that time, upon that subject — especially when the acts up for construction were the last passed at any of these sessions), we know that one of the purposes for which the special session of the Legislature was called was to amend the prohibition laws of Alabama. . That purpose Avas clearly and forcefully expressed in a public message of the Governor to the Legislature Avhen convened for the last extraordinary session of 1909 — the session at Avhich the Carmichael and Fuller acts and the readopting acts were passed. That message was in part as follows: “I call your attention to the fact that at the extra session when you Avere newly returned from the people where prohibition had been widely discussed, of your ÓAvn initiative and by an overwhelming majority, you enacted the state-wide prohibition law.' That statute has been found inadequate of enforcement. The evasions of the laAV have been many and apparently easy. In some places open defiance of the law has been manifest, and the so-called ‘blind tiger’ is abroad. You should not shoot tigers with blank cartridges or bird shot. It only tends to make them more vicious. It is within your power to enact laAvs suppressing open, willful violations of any particular Fiav. It is within your power, and it is your duty to the state, to enact such statutes as will enable the state to carry out the execution of your state-wide prohibition law.”

The Carmichael and Fuller bills Avere evidently drawn and passed for the purpose expressed in the Governor’s message; such purpose being also clearly expressed in their titles. It therefore seems that there should be no doubt that the Legislature intended that the hills in question should, and .that they did, alter, amend, or repeal statutes passed at the regular special session preceding the one of 1909. If so, these acts were, expressly preserved from repeal by the act adopting the Code thereafter, because the act ádopting the Code so expressly declares.

Moreover, would it be a reasonable construction to place upon the act readopting the Code, to interpret-it as repealing the very laws which the Legislature was called in extra session to pass, and which, they did pass,, and as to which no express word can be found which indicates any intention to so repeal? Must we hold that, by one act passed at that extra session (an act for the passage of which the session was not called) the Legislature, by implication, repealed nearly if not quite all those acts for the passage of which it was specially called? And must we so- hold, when tbe Legislature certainly made the attempt to except such laws from repeal? We think not. Such a construction would be unreasonable, and would unnecessarily attribute to the Legislature the fault of foolish and frivolous legislation, and of destroying by implication, what had been their express and declared purpose to accomplish by two extra sessions.

We therefore hold that neither the Carmichael nor the Fuller bill was repealed by the readoption of the Code.

It is next insisted by appellants that, if these two laws were not repealed, the provisions thereof which authorize and provide for proceedings like that instituted by this suit are unconstitutional and void, because in violation of certain mentioned inalienable rights of the citizens, guaranteed to them by the Bill of Bights, contained in the state and federal Constitutions. It is claimed by the appellants that these provisions of the Carmichael and Puller hills, which authorize and provide for suits like this, deprive the citizen of his property without due process of law; that they deprive him of the right of jury trial, and attempt to authorize seizures and searches in violation of the Bill of Rights.

It is also insisted that the acts are void because the titles thereof are in violation, of section 45 of the Constitution; and that these parts of the acts which authorize and provide for proceedings like this are void because not germane or cognate to the title.

If there ever was, there is now no doubt that it is within legislative competency for a state Legislature to regulate or prohibit absolutely the manufacture, sale,, or other disposition of intoxicating liquors within the state. It is likewise settled beyond dispute that the Legislature may declare that any place kept and maintained for the illegal manufacture, sale, or other unlawful disposition of such prohibited liquors, to be a common nuisance, and to authorize and provide for the abatement and injunction thereof by a proceeding in a court of equity. Shch statutes have uniformly been held not to deprive the citizen of trial by jury, and not to be an attempt by the Legislature to enforce a criminal law by a civil action.

It is also settled by well-nigh all the authorities that the Legislature may declare the possession of certain articles or chattels, in particular places and under particular circumstances, to be unlawful, if they would be injurious, dangerous, or noxious to the public. Articles which are treated by law as property, when used lawfully, may be treated by the same law as not possessing the attributes of property, when used for unlawful purposes.

The Legislature may also provide for the search and seizure of all articles, even those that possess the attributes of property, if such articles are kept and used for an unlawful purpose, and after being seized and properly condemned by proper tribunals, so as to amount to due process of law, such articles may be confiscated or destroyed by authority of law. And statutes authorizing such procedure have, as a general rule, been upheld as constitutional. The police power of the state certainly extends to searches and seizures, and to a destruction of the property, the subject of the crime,. or the means of perpetrating it.

Under the ancient English law, a chattel with which a homicide was committed, called a deodand, was declared to be forfeited, and given to the gods. Such, of course, has never been the law in this state, but it was probably the foundation of English and American statutes providing for the forfeiture and destruction of property used for the purpose of perpetrating crime.

Statutes may provide for injunction of liquor nuisances, and for searches and seizure of chattels used in carrying on such nuisance, without violating the Constitution as to the taking of private property for public use without compensation. This provision of the Constitution does not prevent proper provisions as to forfeiture and confiscation of property used for the purpose of committing crime. But such statutes must give the person accused of carrying on the nuisance an opportunity to defend himself and his property. Such powers must always be exercised by the Legislature in conformity to all the provisions of the Constitution. The Legislature, in enacting such statutes, should constantly bear in mind the limitations which the Constitution has placed upon their powers. The exercise of such a power should be properly guarded to prevent abuses. Tbe citizen is guaranteed security of his person, bouses, and possessions from unreasonable searches and seizures. Consequently, all statutes on this subject must observe these constitutional guaranties of the citizen.

Tbe fact that tbe liquor traffic belongs peculiarly to tbe police power of tbe state, and that tbe police power of tbe state is almost unlimited, especially as regards this subject, and that tbe abuses of tbe traffic to which it is liable are so great, and that tbe traffic is attended with so much crime and pauperism that a state could probably dispense with even tbe existence of intoxicating liquors without serious detriment to tbe aggregate interests, or even with absolute benefit, are not reasons, authority or justification for tbe Legislature to abridge or deny any of tbe constitutional rights guaranteed to tbe citizen by tbe fundamental law. These reserved and secured rights of tbe citizen, many of which are enumerated in tbe Bill of Rights, cannot be made to yield to benevolent, philanthropic, or moral speculations. These rights are institutions of tbe fundamental and paramount law, and not the result of science, morals, or economy.

If tbe citizen has acquired constitutional rights or liberties as to intoxicating liquors, tbe Legislature can no more arbitrarily deprive him of these rights or liberties than it can of bis other property rights, or of bis liberty of religion.

Tbe reasons and urgency for tbe regulation, restraint, and even absolute prohibition of tbe liquor' traffic are many and great, and may be said to be indisputable, and tbe Constitution contains no inhibition against legislation for such purposes; but in doing this tbe Legislature is restrained and prohibited from abridging or denying to tbe citizen any of tbe rights guaranteed and secuerd to him by the Constitution. So great has been the regard for the fundamental law ■for these reserved rights of the citizen, that it will not authorize the least arbitrary violation of them, not even for the general good of the whole community. In cases, however, of dire necessity to take his property for public use, the law has provided that, if taken for that purpose, compensation must be first made. State Legislatures are almost, but not quite, omnipotent as lawmakers. The federal and state Constitutions contain some restraints and limitations upon their powers. They cannot compel the citizen to do that which the Constitutions say he shall not be required to do; nor can they require him to refrain from doing that.which the Constitution authorizes him to do. The Legislature cannot impair the obligation of private contracts, nor can they deprive the citizen of his life, liberty, or property, except by due process of law. They cannot establish a religion, nor compel the citizen to attend any place of worship. They cannot impose any religious test as a qualification to office. They cannot restrain the liberty of speech or of the press. They cannot deny a person, accused of crime, of the right to be heard by himself or counsel, nor to be confronted by the wit-messes against him; nor deprive him of the right of jury trial in those cases in which the right is secured by the Constitution. None of these things will the Constitution allow the Legislature to do, even under the guise of a prohibition law. The Legislature, as powerful as *it is, has no more right to overstep the Constitution than has the citizen or an alien to overstep the statutory law. The Bills of Bights are restraints upon their powers and they should regard them.

The Constitution and laws of a state are the basis of public tranquility, the firmest support of political authority, aud the only security for the liberty of the citizen. But “Constitutions are Yain phantoms, and the best of laws are useless, if they be not rigorously observed.”

Constitutions are not often openly and boldly opposed, as are statutes. The attacks and assaults against them are usually silent and gradual, and their changes insensibly happen by a long train of steps that are but slightly marked; unless these attacks are carefully watched and guarded by the courts, it is possible for -the legislative department of a nation to almost entirely change the original.Constitution. Laws are regulations established by public authority, to be observed in society, and they ought to relate to the welfare of the state and of the citizens.

The two things that contribute most to the establishment- and maintenance of justice are good laws and the prompt and efficient execution thereof. The best laws, as before said, are useless, or Avorse, if they be not obseiwed. The habitual disregard of some laws breeds contempt of all. Upon the proper and prompt enforcement of the laws, in a great degree, depend the happiness, glory, and tranquility of a nation or people.

The bill in this case alleges, in legal effect, that respondents were operating and maintaining a “blind tiger,” on the first floor of the Metropolitan Hotel in the city of Birmingham, and that they were using certain chattels named, in the carrying on of the unlawful business, and that such places and business as so operated constituted a public nuisance; and the bill (as is authorized by statute) seeks to enjoin and abate such nuisance, and, for such purpose, to seize the chattels which Avere so used for the purpose of violating the Irav in operating and maintaining such nuisance.

It needs no argument or authority to establish the proposition that to operate or maintain what is commonly known as a “blind tiger” is to maintain a nuisance. We cannot conceive how it would be possible for a man to select and engage in a business, :the necessary result, if not the very object and purpose of which, was to continually violate the law and defy or evade its execution, without maintaining a nuisance; more particularly, when the business itself, as carried on, tends to pauperism and crime, as does that of the “blind tiger.”

A statute which is intended to prevent and abate such nuisances, and nothing more, certainly does not contravene any provision of the. Constitution nor violate any of the citizen’s inalienable rights as to property, life, or liberty. Nor does authorizing such proceedings in a court of equity to abate or enjoin such nuisance, or to authorize the seizure of such property so used for the sole purpose of thus committing crime, deprive the citizen of the right of trial by jury, or take his property for public use without compensation. Courts of equity have always, and everywhere, been accorded that jurisdiction or power, without violating* any constitutional rights. Such statutes and such proceedings have always been held to be due process of law, where the owner of the property and the business is given or accorded the right to due notice and to defend in a court of equity, as is usually provided in such courts in similar proceedings. Courts of equity were accorded this power before there were any Avritten Constitutions, and hence the citizen is not, by such statutes,, deprived of any rig'hts he theretofore had. His rights in this regard remain imnolable after the passage of the statute.

If the allegations of the hill are true — and on this •hearing they must he so treated — we can see no constitutional right of which these respondents have thus been deprived by the statute or the proceedings in the ■lower court.

We must not be understood as holding that all of the provisions of both of these bills under consideration are constitutional and unassailable in any proceeding. We are only deciding the case in hand. We do, however, hold that the provisions of these acts of which these respondents complain, so far as their rights or liberties are concerned in this case, as shown by the record now before us, are constitutional and valid.

It is only those who are injured or prejudiced by statutes — and then, not until they are so injured or prejudiced thereby — who can set up or raise the unconstitutionality of such laws. Courts should never pass upon the .constitutionality of statutes until required so to do.

We do not see that the trial court has exceeded the powers given it under the law, in this case, or that there has been any abuse of its process, so far, in these proceedings.

■ It is next argued that the two acts, one or both, are void because the titles of the bills were in violation of section 45 of the Constitution. The same question involved and the same arguments used in this case have been twice before passed upon by this court; in the ■cases ofAlford v. State, 170 Ala. 178, 54 South. 213, and Toole v. State, 170 Ala. 41, 54 South. 195. In both of these cases the titles to one or both of these acts were held to conform to the provisions of section 45 of the ■stitutron/and we refer to what is there said, in answer to the same questions here presented.

It is also argued that the provisions of these two bills which authorize and provide for a proceeding like this are not germane and cognate to the titles of such bills if the titles be sufficient to support any parts of the bills. We. cannot agree to this contention. We think that such provisions authorizing this proceeding are germane and cognate to the titles of the hills; and the same was in effect, if not expressly, so held in Toole’s Case.

Finding no error in the decree or orders of the trial court, they must be affirmed.

Affirmed.

Dowdell, C. J., ahd Simpson and McClellan, JJ., concur.