186 Ga. 345 | Ga. | 1938
Lead Opinion
Although it is the duty of the judiciary to declare void all legislative acts that violate the State constitution (Code, § 2-402), yet since “the legislature [as well as the courts] is bound by the constitution, . . and the members of the legislature, like ourselves, are sworn to maintain it,” and “all presumptions are in favor of the constitutionality of an act of the legislature” (Macon & Western R. Co. v. Davis, 13 Ga. 68 (8), 83), and “a solemn act of the legislature will not be set aside by the courts in a doubtful.case” (Wright v. Hirsch, 155 Ga. 229, 233, 116 S. E. 795), “to authorize the court to set aside a statute as repugnant to the constitution, the conflict must be plain and palpable.” Brooks v. Mutual Loan &c. Co., 95 Ga. 178, 181 (22 S. E. 55); Harrison v. Hartford &c. Ins. Co., 183 Ga. 1 (187 S. E. 648); Coy v. Linder, 183 Ga. 583, 585 (189 S. E. 26). In determining constitutional questions, like others, the courts are not permitted to concern themselves with the wisdom of an act, or to apply or obtrude the personal views of the judges as to such matters, but are confined to settled principles of law under the long-established general rule stated.
As a general rule, there is in every case some question of law which controls a proper decision of the adjudication; and after a careful consideration of the pleadings and of the arguments of numerous distinguished lawyers who appeared in this case, we have reached the conclusion that the mudsill in this case, which is controlling and which must primarily decide all issues, is whether
The act under consideration is attacked as in violation of art. 3, sec. 7, par. 8, of the constitution, which provides: “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in thb title thereof.” It is asserted that this constitutional provision is violated by the act in question, because: “(1) It contains matter in the 2d and 3d sections thereof, which seek to repeal the present prohibition laws of Georgia as to certain counties, which must be done, if at all, under the police power of the State. (2) It contains matter in section 4 thereof, providing for elections in separate counties of the State on the contingencies therein set out. (3) It contains in sections 2, 3, 4, 7, 9, and 23B [matter] which seeks to legalize the liquor traffic in Georgia, which can be done only by the use or abuse of the police power of the State. (4) It contains matter in sections 9 and 11 thereof which seeks to levy license and excise taxes on the traffic in alcoholic liquors, and calls itself i:i section 1 thereof a revenue tax act. (5)'It contains matter in sections 9-A, 14, 15, 16, 18, 20, 21, 24, 26, 27, 28, 29, and 30, prescribing various police regulations for the so-called control and regulation of the liquor traffic, and this is done under the police power of the State operating for the general welfare. (6) It contains matter in section 8 purporting to delegate to the State Bevenue Commission power to make other police rules and regulations for the control of said traffic. Plaintiffs show therefore that if said law is held to be a tax law, that it contains, in addition to the matter of taxation, five other subject-matters. And petitioners further show that said act is in conflict with the last-cited section of the constitution, in that it contains matter not expressed in the title, as follows: (7) It contains in the 2d and 3d sections thereof matter purporting to amend designated chapters of the Code without any reference being made thereto in the title thereof. (8) It contains matter in said sections 2 and 3 thereof purporting to repeal the criminal laws of the State against the manufacture, possession, and sale- of alcoholic beverages, without any reference thereto be
We do not think the act either refers to more than one subject-matter, or contains matter different from what is expressed in the title. The act is essentially one for raising revenue, and the regulations prescribed in different sections thereof are germane to this main purpose. In Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37), it was said: “The 'subject’ of an act is the matter or thing forming the ground work of the act, which may include many parts or things, so long as they are all germane to it and are such that if traced back they will lead the mind to the subject as the generic head. . . An act is not unconstitutional because more than one object is contained therein, where the objects are germane to the main subject, or they relate directly or indirectly to the main subject, and have a mutual connection with and are not foreign to the subject of such act, or when the provisions of the act are of the same nature and come logically under one subject. . . The provision in the organic law is against duplicity or multiplicity of subjects which constitute the main objects of the act, and is not aimed at objects or subjects which are germane to the main subject-matter included in it.” In Hope v. Gainesville, 72 Ga. 246, it was said: “When it is plain by the act a certain thing is to be done, any instrumentality authorized by the act in aid of, to conduce to, to assist, the one great purpose of the act is not a different subject-matter, but is part of the main subject-matter; it is part of .the 'substantial unity in the statutable object,’ and is not unconstitutional.” It was said in Plumb v. Christie, 103 Ga. 686, 700 (30 S. E. 759, 42 L. R. A. 181), “A substantial and not a literal compliance with this provision in the constitution is all that is necessary. It was never contemplated that the title should give a complete synopsis of the act.” In Panics v. State, 124 Ga. 15 (52 S. E. 74, 2 L. R. A. (N. S.) 1007), it was held: “Provisions germane to the general subject-matter embraced in the title of an act, and which are designed to carry into effect the purposes for which it was passed, may be constitutionally enacted therein, though not
Another ground of attack on the act in question is that it violates art. 3, see. 7, par. 17, of the constitution, which declares: “No law, or section of the Code, shall be amended or repealed by mere reference.to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.” The plaintiffs allege: (1) Section 2 of said act seeks to amend a general law of the State by reference only to a title number of the Code. (2) Section 3 of said act seeks to amend a general law of the State by reference only to chapter numbers of the Code. It will be noted, first, that the requirement is that “no law, or section of the Code, shall be amended or repealed ” etc. (Italics ours.) What law or section of the Code is here amended or repealed ? Sections 2 and 3 of the act are as follows: Section 2. “That on and after the passage of this act the official Code of Georgia, title 58, be and the same is hereby amended, by adding a new section 58-124, which shall read as follows: '58-124. The limitations and restrictions of this chapter shall not apply to those counties in which a majority of those voting at an election held for the purpose vote in favor of the taxing and legalizing and controlling of alcoholic beverages and liquors as may be provided by
Another attack made on the act is that it is in violation of art. 1, sec. 4, par. 1, of the constitution of Georgia, which provides: “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.” The only authority cited by counsel for the plaintiffs on this question is Smith v. State, 90 Ga. 133 (15 S. E. 682). That case does not support the attack made on the act now under consideration. So far as pertinent, the Smith decision only held: “By the general ■ law (Code, § 809(b)) as amended by the act of September 24th, 1883 (Acts of 1882-3, p. 55), liquor dealers are authorized to register without obtaining permission from any one, and without paying any county taxes. The local act of September 28th, 1889 (Acts of 1889, p. 1344), applicable to the County of Harris, declares it to be unlawful to sell in that county by the gallon or in larger quantities, unless the seller shall first pay to the county commis
“It is not necessary that every county in the State, at the time of the passage of the law, should fall within its operation, but it is necessary that none should be excepted in such a way that it can never fall within its provisions.” Thomas v. Austin, 103 Ga. 701, 704 (30 S. E. 637). “The law embraced in the Code of 1883, for the exercise of local option as to fences, is a general law having uniform operation throughout • the State, notwithstanding it embodies the option principle to be exercised locally and- separately by each county or militia district. We think the sounder view,' and one which must finally prevail, is that laws of this character are rightly classified as general and as having uniform operation.” Mathis v. Jones, 84 Ga. 805, 807 (11 S. E. 1018). In Crabb v. State, 88 Ga. 584 (15 S. E. 455), which has often been cited from the time the opinion was delivered until 168 Ga., and in which the rule therein was concurred in by two of our most distinguished Chief Justices, Bleckley and Simmons, Mr. Justice Lumpkin, de^ livering the unanimous opinion of the court in regard to what was known as the general local-option liquor law, by means of which the State finally adopted the present “bone-dry” law, held: “The act approved September 18, 1885, and known as ‘the general local-option liquor law/ is a general law providing for obtaining prohibition in the several counties of this State. It is true that sec. 9 of this act enacts that no election shall be held under its provisions in any county, or other place, where the sale of spirituous liquors is already prohibited by high license, local option, or other legislation, so long as these local laws remain of force; but the act, nevertheless, undoubtedly contemplates that it may operate in counties, or other localities, where prohibition existed at the time of its passage, whenever prohibition shall cease to exist, and therefore the
The act is alleged to be unconstitutional because violative of art. 3, sec. 7, par. 10, of the constitution, which declares: “All bills for raising revenue, or appropriating money, shall originate in the House of Eepresentatives, but the Senate may propose, or concur in amendments, as in other bills.” The plaintiffs in their amended petition say: “Said act is in conflict with the above pro
It follows that there was no error in refusing an injunction in the Shadriclc case, or in sustaining the demurrer in the Mayes case.
Judgment in each case affirmed.
Dissenting Opinion
dissenting. It is with no little regret that I find myself in disagreement with my colleagues upon a question which, if not of vital public importance, is certainly of great public interest; but to my mind the act attacked as invalid violates at least one provision of our constitution. Holding to that opinion, I can not, of course, concur in the judgment of affirmance. I am not unmindful of the principles, which seem to have guided the majority, that a legislative enactment is not to be set aside as unconstitutional unless it is palpably and obviously so, and that in considering such a question every presumption is to favor the validity of the statute. These principles mean no more than that, until the contrary appears, it must be presumed that the act is
If the alcoholic-beverages act of 1938 does not relate to some object stated in the proclamation of the Governor convening the extraordinary session of the General Assembly, it is void, and the court should so declare. The objects of this provision, of course, are that the people may be apprised of the purposes for which the General Assembly is about to be convened, and that the executive may restrict the business to be considered, and thus avoid prolonged extraordinary sessions. It seems to me that at least one of these purposes is entirely defeated if the ability to draw nice distinctions, and a knowledge of the meaning attributed to words and phrases by judicial decision, are necessary to notice as to what may or may not be 'considered at an extraordinary session. I am willing to concede the point that a synopsis of proposed laws need not be embodied in the proclamation, and that it is necessary only that enactments relate to some stated object; but, as I interpret the constitution, the relationship must be a reasonable one, and the legislation must be of such a character as would be suggested from a normal examination of the proclamation by a layman, not from a close and technical scrutiny by a trained lawyer. If it is necessary to justify the legislation to resort to such technicalities, it seems to me that it ought not to stand. The proclamation before us is clothed in much ambiguity. It may be that its author sought to include the legislation here attacked, without expressly doing so. If such was the purpose of the vast generality of the language used, it has met the approval of the court. I hold to the view, however, that if the Governor had purposed to lay
But even if the relationship between any object stated in the proclamation and the act is required to be one such as only a'< trained legal mind may detect, it must at least be direct, and such as rationally connects the enactment to the stated object. Measured by this rule, the law here falls far short. The act must be justified, if at all, as relating to the object of raising revenue, as stated in the proclamation. There is nothing else in the proclamation to which it is remotely akin. It may be conceded that the call is broad enough to justify any sort of revenue statute; it may even be conceded that it would permit the enactment of any sort of penal or regulatory provision for the enforcement of any revenue law, and it would still fall far short of justifying the present statute. This is true for the very obvious reason that the exercise of the police power of the State, a power existing entirely independently of the power of taxation, was necessary to bring into being an object upon which the taxing power could legitimately operate. No such exercise of the police power was provided for or contemplated by the proclamation — yet without it the so-called revenue law would be meaningless and futile. It could be argued that under the dictum of Miller v. Shropshire, 134 Ga. 839 (53 S. E. 335, 4 Ann. Cas. 514), a repeal by implication of the prohibition statute might result from a law taxing liquor, but herq there was no repeal by implication — the repeal was by express en-! actment. Furthermore, even if the rule just referred to is sound, no mere repeal by implication, such as might be justified by that rule, could be operative in one part of the State and not in another.
