Mitchell v. State ex rel. Florence Dispensary

134 Ala. 392 | Ala. | 1901

MoCLELLAN, C. J.

The main question presented ini each of these cases is the constitutionality of an act approved December 10, 1900, entitled “An act to establish and maintain, regulate and make efficient a Dispensary in: Florence, and a branch thereof, in that part of Florence known as East Florence, Lauderdale county, Alabama. ‘And to provide for the issuance of liquor licenses in Lauderdale county until this act goes into effect.”’ (Acts, 1900-1901, p. 288.)

In the first place it is insisted that the act coniMns two subjects, the establishment, etc. of a dispensary at Florence and the issuance of liquor licenses in Lauder-dale county until the provisions as to the dispensary go. into effect, in violation of the organic provision thait “each law shall contain but one subject”; and that these two subjects are expressed in the title of the act in violation of tlie further provision that the one subject to dealiug Avith which all acts are confined “shall be clearly expressed in its title.” — Const. 1875, Art. IV, § 2. In the consideration of this ground of attack on the constitutionality of the enactment, we shall assume, that all provisions of the statute other than that with reference to the issuance of liquor licenses to run up to- the time for the -establishment of the proposed dispensary are covered by the first clause of the caption, pertinent to- the subject there expressed, and otherwise valid, feo- proceeding, we do- not find that the position is well taken. The subject dealt with in the act is the establishment and administration of a dispensary in Florence with a branch at East Florence in Lauderdale county. The purpose of the act as expressed in its title1 — its subject — is to- establish and maintain, regulate and make efficient a dispensary in Florence and a branch thereof in that part of Florence known as East Florence, Lauderdale county, Alabama. Those of the provisions of the act having relation to issuance of liquor licenses to run up to the time the dispensary should be put into operation are cognate, germane and complimentary to-its provisions for the establishment and carrying on of the dispensary, necessary and proper, in view of existihg law, to- the rounding out and perfection of the new system of dealing in liquor's which the act proposed to establish; and being so they are in legal contemplations “clearly expressed” in the first clause or sentence of the title of the act. That a more particular expression as to such provisions is made in the last clause or sentence of the title is of nio consequence. Such expression is not the setting forth of another and distinct subject-in the title, but the mere specification in or by way of sub-title of a matter covered in a general but sufficient way in the main title. The word “dispensary,” and the phrases “to establish a dispensary,” and “to establish and'maintain a dispensary,” etc. etc. had come before the session of assembly of 1900-3,901 to have general and well understood meanings in the legislation of the State. The “question of dispensary” or the “issue of dispensary” was the phrase in common and universal use when reference was had to- the agita.tio.ni prevalent throughout the ¡átate, or in any county or municipality looking to. committing and confining the sa.be* of spirituous, vinous and mialt liquors to governmental agencies and on governmental account. And whei-ever this had been done, it. was saidl that “a dispensary had been established,” and by that statement the fact 'that this traffic had been so committed and confined was as aptly and accurately and fully made known to. the common apprehension as if every detail had been stated. There, of course, may he dispensaries for the disposition of the commodities other than these liquors, hut when reference is made to them by the use* of the word “dispensary,” there must be some express differentiation else the reference will he understood to he to dispensaries of liquors. Especially is this true of the use of the word in legislation, for when it is proposed by a. bill to establish a dispensary, everybody at-once understands that it is a dispensary of spirituous, vinous and malt liquors which is. proposed, and) that the purpose is not only to. authorize the sale of these liquors by agents of government but also, and further to prohibit. the sale of them by private persons. Indeed, the prime consideration underlying the establishment of dispensaries by law, that which is always put forward by moralists and sociologists in advocacy of legislation to that, end, that which in their estimation outweighs tin* objection which many people have to bodies politic engaging in this traffic at all, is that the establishment of the dispensary by committing the dealing m these liquors to public agencies, which are presumably devoted ánd consecrated to the public welfare, and are without interest or incentive to augment their sales and thereby to increase j)ro¡fi.ts, or †0 gell liquors of a.n inferior and .deleterious quality, takes the traffic entirely out of the hands of private persons who lack the public agencies’ consecration to the public good, who. have interest and incentive to- increase their sales, and to supply cheap and deleterious liquors, whose places of business must be inviting to loiterers, etc. etc.; and it is upon this theory that statutes establishing- dispensaries have heretofore proceeded. So that, the corollary to 'the establishment of a dispensary is the prohibition of the sale of liquors by private persons. So- universal is the notion that such prohibition is the prime purpose of such statutes and so uniformly has such prohibition been made part of them that the expression in the title of an act of a purpose to establish a dispensary is the expression of a purpose to prohibit the 'selling o>f liquors by private persons on private account, or, at least, there is such correlation to 'the common, understanding between the establishment, of the dispensary and the prohibition, the latter is so cognate, germane anid necessary to the purpose of the former, as that it is covered by the expression and authorized under it Hence it is that the title of the act under consideration as set forth in its first clause “to establish and maintain, regulate and make efficient, a dispensary’’ etc. is to all legal intent the expression of a purpose to, authorize 'the sale of liquors by public agencies and to prohibit it by private persons, to commit and to strictly confine the business to a public; agency. Theretofore it had been lawful for private persons to eaigage in this business ini Florence and perhaps at other places in 'the county upon being- licensed so to do'. The purpose of 'the act a.s evinced by its title was to' substitute the dispensary for the licensed dealings by individuals, to substitute the system of governmental traffic for the system of private trafile under licenses. It was deemed necessary to' allow some time after the passage of the act for preparation to institute the change contemplated. The act was approved December 10, 1900. It was not to go into effect in the actual establishment of the dispensary and the taking over thereby of this business until the first of the .following July. There was no- contemplation that 'the business under license should cease until the business under public agency should begin, but toe contrary. Under existing law, however, the licensed traffic could not continue up to toe inauguration of toe dispensary traffic, because there was no authority in toe judge of probate to issue licenses to- carry on this business from January 1st to July 1st, the statute authorizing licenses only for the whole year when taken out prior to July 1st; and there ivas no authority after the passage of this statute for. that officer to issue licenses for the. whole year since this act, and properly under its main title, prohibited sales under license after July 1st. So that it seeing' clear to us that the provision in this statute for the issuance of licenses to run up to the time the dispensary .should go into operation, was, not only cognate and germane and. complementary to the subject expressed in the first sentence of its title, and referable thereto', but further1 that it was necessary to< the subject so expressed, involving as that subject did, and as the purpose of the act expressed in the title did when taken in connection with the provision as to the time at which the dispensary should go into' full operation, the continuance of the traffic under' license upi to July 1st, 1901, and the substitution on that day for traffic under license the traffic by public agency. Such substitution! alt that time was the .end the legislature had in view, to this substitution the continuance of the existing traffic was necessary, and to such continuance the provision as to' the issuance of licenses for the first half of the year 1901 was essential. The point is, we think, substantially de1termined in the case of Ex parte Mayor and Aldermen of Birmingham, 116 Ala. 186, and in State ex rel. v. Griffin et al., 132 Ala. 47; and upon these authorities and the foregoing considerations, our conclusion! is that but one subject! is expressed in the title to this act, and that the provision for licenses extending up to July 1st, 1901, is within the subject so expressed. The cases of Bradley v. State, 99 Ala. 177, and State v. Davis, 130 Ala. 148, are distinguishable from the case a.t bar in this: The prohibition intended by the statutes under review in those cases could be effected as well without their provision for1 refunding.license money as with those provisions, while in this case the purpose of the statute to substitute one system of traffic in liquors for another on July 1st, 1901, could not be fully effectuated without a provision for the issuance of licenses running up to that time. We adhere to these cases of Bradley and Davis, but they mark the limit beyond!which we will not go in declaring acts of assembly violative of § 2 of Art. IV of the constitution of 1875.

The other objections urged against the constitutionality of this act are that certain private persons and their successors are by it constituted a body corporate to inaugurate, carry on and, if they see fit, suspend or discontinue the dispensary, that the act confers police powers upon the corporation, that this entity is a prwate corporation, and that the act commits the liquor traffic in; Lauderdale county to this private corporation to the exclusion from that business of all other private corporations and private persons. A statement in brief of the provisions of the act is necessary to a proper understanding and consideration of these objections to its. constitutional integrity: The act itself appoints the first individuals who are to carry it into effect. There are five of them and they áre appointed for terms of one, two, thl'ce, four and five years, respectively. On the expiration of the term of each, his successor is to be elected by the board of mayor and aldermen of Florence and the commissioner’s court of Lauderdale counity assembled in joint meeting which is to be presided over by the mayor of Florence. These five “dispensary commissioners,” as they are called in the act, constituting a corporation, are to elect one of their number annually to be chairman, and another to be secretary and treasurer. Each of the commissioners is required to take and subscribe an oath that he 'will faithfully and honestly discharge all the duties imposed on him by the act. The secretary and treasurer is required! to give bond with good 'and sufficient surety to be approved by the mayor and aldermen, conditioned for the faithful performance 'of his duties. The commissioners are to employ managers for the dispensary in Florence and its branch in East Florence, fix their compensation, which is not to be made to depend upon the amount of sales, and regulate and superintend them in carrying on the business.

The commissioners are to pay liquor license for each place of business as now required by law. Each of the. commissioners is to receive a salary of fifty dollars per Minimi, and that one of them who is secretary and treasurer is to receive one hundred dollars per annum additional. 'The. commissioners are required to “appropriate the net profits of said dispensary 'to the city of Florence and the county of Lauderdale in such ratio as may now be received by them from existing saloon licenses.” Neither the city nor the county is to put any money into the business nor is. either liable for any debts incurred by the commissioner's in carrying i't on. The corporation constituted of the commissioners has capacity to sue, and may he sued; and this entity is to maintain and operate the dispensary from the funds arising from the sale of liquors; and in order to-inaugurate the dispensary and to purchase liquors from time to time, the corporation is authorized to borrow money, or to pledge its credit. The salaries of the commissioners and. the managers, are to he paid out of the business. The act is in a sense of a mandatory rlature, or mandatory in form rather, in its imposition of the duty to'establish and carry on the dispensary jupen the commissioners,, yet they incur no- penalty or liability of any sort for refusing or failing to establish it, and toe con'timigeaicy of such refusal or failure is within the expressed contemplation of the act, which contains this provision: “ * * If said commissioners.fail to establish such dispensary by the 15to day of July, 1901, then the hoard of mayor and aldermen of the city of Florence may do so under the provisions of this act.” Moreover, having established a dispensary, the act expressly confers upon them “full power and authority, at any time they may see proper soi to do, to suspend, or discontinue permanently said dispensary and close out all stock thereof on hand,” and provides further “that if toe dispensary commissioners at any time determine to permanently discontinue the dispensary, * * * * the board of mayor and aider-men of the city of Florence and toe probate judge of Lauderdale county are hereby authorized to issue liquor licenses as now or hereafter provided by law, if the hoard of mayor arid aldermen of the city of Florence does not put into operation a. dispensary under this or some other act.”

The ano-malior of this ena.ctment. apparent from the foregoing statement are numerous and striking. Under the guise of establishing and maintaining a “dispensary,” by which, as we have seen, is always intended the committing and confining the Liquor traffic to disinterested public and governmental agencies — the purpose and only justifying motives always being to couserve the morals and good order of the- community, and never being primarily pecuniary profit or benefit to the, agency, or to the local or general body politic*, the State, county or town — the art commits this traffic in Florence and throughout Lauderdale county to a corporation created by it, and constituted by it of certain named individuals whose only connection with any recognized governmental agency or power is that these individuals are named hv the State*, auid their successors are to be appointed hv the county and city legislative bodies acting jointly, and that they are required to pay the net proceeds, tin* profits, of the business to the city and county. Neither the city nor the county engages in tlie business or has any control over it beyond naming successive members of the corporation. The act creates a corporation and breathes into it a standing in the courts, a capacity to borrow money and to incur debts, and launches it upon a precarious mercantile venture without. a cent of money to inaugurate the business or a cent’s worth of property to- form a basis of credit. License taxes are 'to be paid by this concern, the dispensers — managers—arc to be paid' by it, the. salaries of its own members are to be paid by it; and all these payments must be ma.de out of the profits of the business. Moreover, rents are to be paid, and the money borroAved and debts incurred in settling up and conducting the business are to be paid out of it; and- AAdiile the commissioners are not. personally liable for' debts incurred, they Avouhl naturally liave a lively individual concern to have them paid and the credit of the artificial entity composed of them 'maintained, and they as Avell as the managers have.a direct personal concern in this connection, since Avithout the payment, of debts- the business could not be prosecuted and their salaries Avould cease. So that it is clear that each and all these commissioners and the managers, have direct personal, pecuniary interests, and the commissioners an additional personal concern of a moral nature, in this business, m its continuance, in its profitableness., in its volume, m increasing the sales of the dispensary. ' All this is out of all harmony with the theory, and motive, and public policy of dispensary legislation. So-, ton, are the further provisions of this act which virtually leave the establishment of the dispensary in the first instance to. the discretion of these commissioners, and expressly confer upon them the power and authority to suspend it for any length of time they see fit, and to discontinue it permanently if they choose so to do. Whatever legislation of this character, that is for the committing of this traffic to dispensaries, has been had- — in this State and out of it, as far as we are advisad» — it has proceeded on the theory that the public a»lone should be interested in the business, that the State, county or municipality, as the case might be, should 'engage in» the business, should supply the funds to inaugurate it and carry it on, should with public funds pay the dispensers or other necessary agents so» that they would be wholly disinterested and without incentive to explo»if! the traffic or to increase its volume, and should, while on the one hand receiving whatever profits might incidentally result from tiras on principles of public policy controlling and carrying on a traffic requiring police regulation and, in a sense, repression, on the other, incur and bear the losses Avhich might result from the business. And it.is, to say the least, largely upon this theory that the courts have upheld such legislation. Can legislation not proceeding upon this theory be upheld? Can an act Avhich departs fro'ui this theory so. radically as the act under consideration be 'sustained at all ? The exigencies, of tire p»resen.t appeal do not require us to respond to these: queries.

Again, leaving out of view the considerations just ad-Arerted to, or rather dealing with them from another standpoint, it is obvious that an act proceeding on the general lines upon which this one proceeds might amount to an arbitrary designation by the legislature, or by the commissioaiier’s court of a comity and the board of mayor and alderman in a town in that county, of private persons or a, private corporation to carry on the liquor traffic to the exclusion of all other private persons and private corporations in palpable violation of fundamental law. For illustration: Suppose it were a fact that the net. profits of the liquor business in Florence and East Florence were ten thousand dollars, and this act had provided a salary of two thousand dollars for each of these five commissioners, would any court hesitate to declare that such.a statute would be the conferring of a special privilege on these men or this close corporation composed of them, that it would be invidious and class legislation and unconstitutional and void? Would not such a statute be clearly for the benefit of these individuals, exclusive of the equal right of other individuals to engage in this business? We do not know -what the profits of these dispensaries are. They may, for aught we know to the contrary, not exceed the three hundred and fifty dollar's to he paid to these commissioners. And can it make any difference what the commissioners are to receive out of the business wben they in fact are .to receive all its issues and profits, when they, and not the State, nor the county nor the city, inaugurate it and supply the funds for prosecuting it, and themselves, to the exclusion of all others equally entitled to engage in the traffic under organic guarantees, carry it on and receive the proceeds of it? Oan the legislature, indeed, thus provide for the farming out of this traffic to persons named by itself or to he named by the county and town authorities upon conditions involving merely the payment of some part of toe proceeds to toe county and town, andl forbid other persons to engage in toe traffic at all? • These, too, are questions which we are mot under the necessity of answering. •

This act has infirmities of a more glaring and certainly emasculating nature than those we have: been diseussin g. To our' mincfe it palpably involves an unwarranted and unconstitutional delegation of legislative power. and incidentally so to speak, the conferring of police [sower, to and upon the dispensary commissioners named in the act and their successors. YVhether the act should go into effect and operation at all or net was left to all essential intents and purposes to their uncontrolled discretion. They might bo unable to raise funds or secure credit necessary to inaugurate the dispensary and' for that reason fail' to establish it. Or they might, without any reasons apart from their own notions of the expediency and wisdom of dispensary legislation, refuse and fail to execute the act. If they failed to' establish the dispensary for any reason or for no reason, we an* not of opinion on the terms of tliis act that they could be thereunto compelled. Indeed, the appointees of the act were under uio diuty to qualify and undertake its execution, and they might have declined to do so. No provision is made for such a contingency and its occurrence would have effectually prevented the act from ever going into effect. But the legislature not only committed the question as to whether this act should ever go into operation to five named private persons, but it went- further and expressly provided that these same persons, ■ they having concluded to put the act into operation, could suspend it a.t any time, and could also repeal it in substance and effect whenever they chose so to do by permanently discontinuing the dispensaries; and that upon such repeal other important laws should revive and become operative in Florence and throughout Lauderdale county. Upon a mere suspension of the dispensary by these commissioners, there would he absolute prohibition of the liquor traffic in Lauderdale county. The suspension might be for a, week, or a. month, or a year, yet if it was a suspension only, that is, if the commissioners, intended to resume the business of the dispensary a.t the end of the; week, or mionth, or year, as the case might he, the effect of the exercise1 by them, of the power to suspend conferred by this act would be not only to suspend a, law of the State, hut to establish prohibition throughout the territory covered by the act for the time of suspension, be it short or long. If they chose to “discontinue permanently the dispensary,” that is, ceased to carry it on with the intention not to resume its business, they thereby put into operation the license laws of the State and of the city, and thus authorized the unlimited traffic in liquor throughout the county. In other words, -and in short, this act delegated to these five persons the legislative power of determining whether it should ewer become a laAV and go into effect, the legislative poAver of suspending it -at any time and for any length of time, they having concluded to make it a law and put it in operation, and 'the further legislative power of repealing it by determining to discontinue the dispensary proposed to he established. And the exercise of each of these important rights of election on the part of 'these five men, or a quorum of them, necessarily has the effect of controlling the State’s policy in respect of this traffic in Lauderdale county; and the conferring of these rights is in reality delegating to them 't.o ¿Determine Avhicli of the three possible policies should be enforced by legislation — Avlietber there should he unlimited sales under license, or sales tnrough the dispensary system, or absolute prohibition of all sales. And, of course, the exercise of this delegated legislative power to the. results avg have indicated necessarily inAxdved the exercise of the police power of the State in respect of this traffic in liquors. Whether the sale of liquors in Lauderdale comity should be free and unlimited, or Avhether it should he prohibited', or whether it should he permitted hut regulated, and if regulated, whether by the requisition of licenses or through public agencies called dispensaries, were matters, and questions with Avhich the legisla,tui’e alone Avas competent to deal. The Avhole subject is legislative and is committed to the general assembly. They 'cannot “substitute the judgment, Avisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust;” and much less can they substitute for 'their own the judgment, patriotism and wisdom of five private persons. Of course the legislature may enact a local statute to go into effect upon its adoption, or, rather, acceptance by the people of the locality to which it is 'to apply, or they may confer certain powers of local legislation upon public political corporations; but they cannot delegate to Brown, Jones, Smith, Johnson and Roberts, private persons, the power to say whether a statute framed for and to affect the county and all the people of the county in which these persons may live, shall go into effect, in fact become a law, nor can they delegate to these persons the power to suspend for a moment of time the operation; of a statute 'which has gone into operation, or to repeal it; and they cannot confer upon these persons directly or indirectly the power of determining what police regulations shall obtain in the county in respect of intoxicating liquors; nor’can any of these powers be delegated to a corporation constituted of these persons and charged with the duty of administering this act should it electtoputit into operation and so long as it refrained from suspending or repealing’ it.- — 6 Am. & Eng. Ency. Law, pp. 1021 et seq.; Schultes v. Eberly, 82 Ala. 242; Clark & Murrell v. Port of Mobile, 67 Ala. 217; Dunn v. Court of County Revenues, 85 Ala. 144; Stanfill v. Court of County Revenue, 80 Ala. 287.

This is not a case for the elimination of the unconstitutional provision which we have been considering from the act and leaving it to- stand in other respects/ It is far from reasonable to suppose that the legislature would have peremptorily required the persons named in the act to’form a penniless corporation and launch it upon a perilous mercantile venture, and peremptorily held them to the prosecution of that venture regardless of their ability and inclination to inaugurate it or continue its operations. Indeed, the legislature had no power to do this. With the eliminations referred to made, there is not only no reason to- believe the act would have been passed, and no ground for saying that it, could now be executed in accordance with legislative intent, but it would still-be impotent to force the commissioners, or the corporation composed of them to its continued execution-: there would still be no legel assurance against their suspending or permanently discontinuing the dispensary. Moreover, the elimination of these provisions and the consequent giving of a peremptory and mandatory character to the act, Avould involve also, it Avould seem, the alternate dependent provisions as the issuance of licenses, or the establishment of a dispensary by the city of Florence in 'the event the commissioners should fail to establish a dispensary or permanently discontinue it.

Upon the foregoing considerations Ave are constrained to declare the act in question unconstitutional and void. It folloAvs that the probate judge of Lauderdale county Avas under no duty to issue any licenses to the dispensaries AArhich had been established by the commissioners, and hence Avals not compellable by mandamus to issue licenses to them for the last quarter of the year 1901. The judgment of the circuit court awarding mandamus against him must, therefore, be reversed, and a judgment will be here entered dismissing the petition for mandamus.

The ordinance of the city of Florence for violating AAdiich the appellant PoAvers was convicted not only expressly refers to this invalid dispensary act as the sole authority for its adoption, but it, also expressly, excludes the dispensaries and sales made by tbem from its operation. The dispensary act being stricken down, the ordinance stands before the higher laAv as if it had in terms confined the sales of intoxicating liquors to seven named persons, the dispensary commissioners and managers ami prohibited such sales by other persons. It is impossible to conceive how the ordinance can be enforced according to the intent of the mayor and aider-men of Florence; or that it Avould have been adopted by them at all for enforcement as it must be enforced if alloAved to stand for any purpose, that is, against the persons expressly excluded from its operation as well as against all other persons. It is not a case of an ordinance good and bad in separable parts, but of one in AAdiich the infirmity of invidious, partial and unequal effect and operation affects and destroys the Avhole. The ordinance must fall Avith the statute upon the supposed authority of AAdiich it Avas adopted; and the judgmont against Powers Tor an alleged violation of it must be reversed — the question of the invalidity of the ordinance having been properly presented on the trial and reserved for review — and ai judgment will be here entered discharging him from further prosecution.

Reversed and rendered in each case.