80 Fla. 98 | Fla. | 1919
Lead Opinion
(after stating the facts) :
There is a preliminary contention that the amendment to Article XIX of the State Constitution proposed by the legislature in 1917, and adopted at the polls November 5, 1918, to “go into effect” January 1, 1919, is invalid because it was not proposed,, submitted and ratified in accordance with Article XVII of the State Constitution, in that the legislature in proposing the amendment to Article XIX did not “determine upon the submission of the amendment to the people for ratification or rejection.”
The Constitution requires that proposed amendments to the Constitution by the legislature shall “be agreed to by three-fifths of all the members elected to each house,” that “such proposed amendments shall be entered upon their respective journals with the yeas and nays,” and that “the same shall be submitted to the electors of the State, for approval or rejection.”
In ex parte Francis, 76 Fla. 304, 79 South. Rep. 753, it was held that in providing for prohibitions of the sale of intoxicating liquors in counties by local option elections, original Article XIX of the Constitution by implication restrained the police power of the State and forbad legislation regulating the possession and the transportation of such liquors in counties where the sale thereof teas unlawful. But this construction was not put upon amended Article XIX which forbids the nvanufactwe, sale, barter or exchange of intoxicating liquors; and the statute now considered insofar as it regulates the possession of intoxicating liquors, was sustained as a valid exercise of the police power, though the validity of the statute with reference to the time of its enactment was
It is contended that the statute is void because it was passed, while original Article XIX was in force, though the statute did not take effect or become operative until original Article XIX had been superseded by amended Article XIX, with which amended article the statute does not conflict.
Those who assert the uneonstitutionality of a statute have the burden of showing that beyond' all reasonable doubt the statute inevitably conflicts with some designated provision of the Constitution. 12 C. J. 797; Peninsular Casualty Co. v. State, 68 Fla. 411; 67 South. Rep. 165; State ex rel. Simpson v. Ackerly, 69 Fla. 23, 67 South. Rep. 232; State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 South. Rep. 367; City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769; Pinellas Park Drainage Dist. v. Kessler, 69 Fla. 558, 68 South Rep. 668; Lainhart v. Catts, 73 Fla. 735, 75 South. Rep. 47; Anderson v. City of Ocala, 67 Fla. 204, 64 South. Rep. 775; ex parte Pricha, 70 Fla. 265, 70 South. Rep. 406; County Com’rs of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 South. Rep. 398; Lindsley v. National Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. Rep. 337.
A statute cannot be judicially ■ declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it can be specifically pointed to. Cleveland v. City of Watertown, 222 N. Y. 159, 118 N. E. Rep. 500; Wooten v. State, 24 Fla. 335, text 345, 5 South. Rep. 39; 120 N. E. Rep. 19.
The State Legislature has plenary law-making power subject only to the limitations imposed by the State and Federal Constitutions, and may enact any anticipatory statutes that are not forbidden by such Constitutions. The State Constitution expressly provides for the enactment of statutes to take effect after their passage and approval and after the final adjournment of the session of the Legislature at which they were enacted. Anticipatory statutes are not forbidden; nor are they contrary to the letter or to the spirit of the State Constitution; but the enactment of statutes to take effect at times subsequent to their enactment is expressly contemplated by the Constitution. Under Section 18'of Article III of the State Constitution, if this statute had not expressly provided that it should take effect on January 1, 1919, it would not have taken effect until some day in February, 1919, sixty days after the final adjournment of the session of the Legislature at which it was enacted, and until amended Article XIX had been in force more than á month.
If the Legislature had power to enact this statute after amended Article XIX took effect January 1,1919, to make
When Chapter 7736 was passed and approved December 7, 1918, the amendment to Article XIX of the Constitution had already been adopted November 5, 1918, to take effect January 1, 1919, therefore the cases cited for plaintiff in error in which amendments to the Constitution were adopted after unconstitutional statutes had been passed and made operative, are not authority for holding that the statute here approved December 7, 1918, to take effect January 1, 1919, is void because in conflict with Article XIX before its amendment, which amendment, though adopted November 5, 1918, did not take effect till January 1, 1919. The Constitution did not forhid the passage of statutes of this character as it does of certain special or local laws (Sec. 20, Art. Ill); and the Constitution expressly provides that enactments may he-
The. statute did not take effect and was not in force at any time while original Article XIX was a part of. the organic law. That is the. difference between this case and others cited in argument. The validity of the statute is to be determined by the organic provisions in force at the time the statute took effect or becamie ^operative, and not at the time of its passage; and as the amendment to Article XIX became effective and operative concurrently with the statute, the provisions of original Article XIX do not affect the validity of the statute. The status of this statute is as though it had been enacted, approved and made effective or operative January 1, 1919, the day amended Article XIX took effect, entirely superseding original Article XIX of the Constitution. Conflicts between a statute and organic law do not arise until the statute becomes operative. Sammes v. Bennett, 32 Fla. 458, 460, 56 Fla. 107; 64 Fla. 154; 53 Fla. 647; 1 Mich. 369; 159 N. Y. 118.
As the amendment to Article XIX had been adopted by the electors of the State November 5, 1918, to take effect January. 1, 1919, it was inevitable that it would be effective at that time; and as the amendment required the enactment of “suitable laws” for its enforcement, and as the regular session of the Legislature would not under the Constitution convene till April, 1919, it was within the law-making power of the Legislature at the extra session in December, 1918, to enact “suitable laws” to enforce the provisions of Article XIX as amended when it took effect January 1, 1919. The statute here assailed approved December 7, 1918, is a suitable law to enforce the
The Constitution vests the general law-making power of the State in the Legislature, and expressly authorizes the enactment of laws to take effect or to become operative at a time subsequent to their enactment and approval. Sec. 18, Art. III. See also Barbour v. State, 249 U. S. 454, 39 Sup. Ct. Rep. 316.
This is not a case where a subsequently adopted amendment to a Constitution is ineffectual to give validity to a previously enacted void statute which purported to take effect before the Constitution is amended and is not referred to in or validated by the amendment to the Constitution (See 12 C. J. 727); but it is a case where a constitutional amendment had been duly adopted by the electors of the State to take effect inevitably at a future fixed date, and between the adoption of the amendment to the Constitution by the electors and the date it became effective to entirely supersede the former Article XIX of the Constitution, the Legislature without violating any provision of the Constitution enacted a suitable law to enforce the provisions of the amendment to the Constitution, the laws to take effect concurrently with the amendment to the Constitution. See Correllis v. State,
In this case the amendment to Article XIX contemplated the enactment of regulations to- enforce its pro1visions when the Article became effective, and the passage of such regulations before the organic amendment took effect,, the enactment to take effect concurrently with the organic amendment, does not render the statute void, even though it may have been in conflict with the original Article XIX, if the statute had been made effective or operative before the amendment to Article XIX took effect.
In Reade v. City of Durham, 173 N. C. 668, 92 S. E. Rep. 712, the statute was sustained because it was passed iand became effective before the constitutional amendment became operative under which amendment the statute would have been invalid. The statute took effect the day it was passed.
In Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 South. Rep. 867, the amendment to the Constitution had not been adopted when the statute was passed and it teas held■ that the constitution forbad the passage of the statute at the time it was enacted.
The recently adopted amendment to the Federal Constitution, known as Article XVIII, which is to take effect January 16th, 1920, prohibiting the manufacture, sale or transportation of intoxicating liquors in the United
Amended Article XIX of the Florida Constitution is not an added Article. It is a substituted Article to take the place of original Article XIX of the Constitution. This substitution took effect January 1,1919, by the terms of the amended Article itself. See Correllis v. State, 78 Fla. 44 82 South. Rep. 601.
Even though original Article XIX was in effect as organic law until January 1, 1919, yet it did not limit the power or the duty of the legislature in December, 1918, to enact anticipatory statutes to enforce amended Article XIX that had' already been adopted at the polls in November, 1918, to take effect January 1, 1919. Original Article XIX was a limitation upon the law-making power of the legislature only as to prohibitions of the sale of intoxicating liquors. Its provisions were not a limitation upon the power of the legislature to enact anticipatory statutes to meet the requirements of an amendment to Article XIX that had been adopted to inevitably become a substitute for original Article XIX; and the statute here considered, which by its express terms took effect January 1, 1919, was not in conflict with original Article XIX, since the statute was not operative at any time when original Article XIX was in force.
The added Article XVIII of the Federal Constitution is a grant of lawmaking power to the Congress, without
Constitutional provisions are designed to effectuate practical government regulated by law; and they should be so interpreted as to accomplish and not to defeat their purposes or to lessen their efficiency. Article XIX as amended commands legislative enactments to enforce its provisions; and to hold that though the amended Article had been duly adopted by the people to take effect later, the commanded regulations could not legally be enacted, until af%er the amendment became effective, when the provisions of organic law do not require such a holding, and when the legislature had full power to enact such laws independently of the organic command, would make the courts administrators of technical formulae developed by construction, to the sacrifice of substance and to the disregard of the manifest intent and purpose of organic provisions as adopted by the people of the State, thereby rendering government impotent to effectuate its own purposes as expressed by the people whose government it is,
The guarantees of life, liberty and property contained in the Constitution are not absolute. All private rights are enjoyed by individuals as members of the public constituting organized society; and such rights are subject to the paramount right of the State to modify them to conserve the public welfare for sahis populi est suprema Tex. See 70 N. J. Eq. 895, 65 Atl. Rep. 489, 14 L. R. A. (N. S.) 197; 10 Ann. Cas. 116, 118 A. S. R. 754; 12 C. J. 948. Restrictions upon private rights are compensated for by the individuals sharing in the general benefits accruing from the regulations limiting private rights. Gardner v. Michigan, 199 U. S. 325.
The possession of intoxicating liquors may be regulated as a means of preventing the un1 awful acquisition of it. Crane v. Campbell, Sheriff, 245 U. S. 304, 38 Sup. Ct. Rep. 98; United States v. Hill, 248 U. S. 420, 39 Sup. Ct. Rep. 143; Gray v. Kimball, 42 Maine 299.
The constitutional right to acquire, possess and protect property relates to -such subjects of property as persons may acquire and have in possession under lawful regulations to conserve the general welfare; and such regulations may limit the subjects of property as to kind
By forbidding the manufacture., sale, barter or exchange of intoxicating liquors and beverages, and by commanding the legislature to enact suitable laws to enforce the prohibitions, the Constitution not only does not forbid statutory regulations of the possession of such liquors, but it contemplates their enactment as being suitable to enforce the prescribed prohibitions. Marasso v. VanFelt, 77 Fla. 432, 81 South. Rep. 529; 245 U. S. 304.
The plaintiff in error has not shown beyond reasonable doubt that the statute under Avhich he Avas convicted A’iolates some designated provision of the Constitution, and the order remanding him to custody should be affirmed.
It is conceded that if Chapter 7736, Luavs of 1918, had been intended to go into effect before January 1st, 1919, the Act would have been void because of the existence of Article XIX of the Constitution of 1885, which inhibited the legislature from enacting prohibitory legislation as to the sale of intoxicating liquors. See ex parte Prieha, 70 Fla. 265.
An amendment to the Constitution granting power to the legislature by removing a limitation does not' have a retroactive effect and give life to a void act of the legislature, which passed that body when the limitation or inhibition rested upon it. See Cooley Const. Lim. supra,.
If, however, the amendment to Article XIX, which was adopted in November, 1918, became upon its adoption a part of the Constitution, then the legislature which assembled under the new Constitution, that is to say, the Constitution as amended, derived its powers from
Section 1 of Article XVII of the Constitution provides that: “If a majority of the electors voting upon the amendments at such election shall adopt the amendment the same shall become a part of the Constitution.” This clause has been construed to mean that immediately upon the adoption of an amendment it became operative. See Advisory Opinion, 34 Fla. 500.
Other courts have so construed similar provisions of the Constitutions of other States.
There was no proposition to amend Article XVII. An implied repeal or amendment of the Constitution is not favored. The old and the new provisions of the organic law should stand and operate together if it can be done without contravening the intent of the law-making power (the people) as expressed in the latter provision. See Board Public Instruction Polk County v. County Commrs. Polk County, 58 Fla. 391; Mugge v. Warnell Lumber & Veneer Co., 58 Fla. 318.
To maintain either position is to assert that the phrase “shall go into effect” is synonymous with the phrase “shall become a part of the Constitution.” But such is not the case because, while the amendment became at its adoption a part of the organic law its inhibition upon the sale of intoxicating liquors became operative at a later date. Section 2 of the amendment which provides that “The Legislature shall enact suitable laws for the enforcement of the provisions of this article” was a command to legislate upon the subject, but it conferred no power. The power to enact suitable laws to enforce the intention of the people as expressed in the amendment became vested in the Legislature upon the amendment becoming a part of the Constitution; that is to say, at its adoption, the limitation being that such legislation should not go into effect before January 1st, 1919.
Mr. Justice Whitfield, following the decision in the ease of Correlis v. State, decided at the June, 1919, term of this court, takes the position that the amendment to Article XIX did not go into effect or become a part of the Constitution until January 1, 1919, but that the Legislature had authority .to pass the Act, notwithstanding the prohibition contained in Art. XIX that was in force prior to January 1, 1919.
Mr. Justice Ellis does not concur in this view. He says, “If the amendment was, not a fart of the Constitution until that date, then the Legislature had no power prior to that date to bring into existence an Act dealing with the subject of the prohibition of the sale of intoxicating liquors and depend upon an amendment to the Constitution to give validity to the Act. The passage through the Legislature of such an Act was without authority. The Legislature had no power to deal with the subject. It was. prohibited by the terms of the Constitution from, doing so. Such an Act would have been void. It would have been nothing more than a blank piece of paper. See Cooley Const. Lim. 188; Mining Co. v. The Secretary of State, 82 Mich. 573.”
So far, I quite concur with Mr. Justice Ellis; but when he contends that the amended Article XIX “became a part of the Constitution when it was adopted” we part company, and I am forced to do so by the decision of this court in the Correlis case, supra..
Mr. Justice Ellis cites the Advisory Opinion to the Governor, 34 Fla. 500, 16 South. Rep. 410, as authority
There can be no controversy about the soundness of that proposition as to amendments generally, but I think it equally uncontrovertible that the Constitution may be so amended as to take any part of it out of the operation of any other part. An amendment that provides that it shall not go into effect until some date subsequent to its adoption by the. vote of the majority of the electors, is a positive constitutional enactment that it shall not become a part of the Constitution immediately upon its adoption.
Such was the decision of this court in the Correlis case. There we said, “This of itself rescued the amendment from the provision of Art. XVII by which amendments to the Constitution become effective upon receiving the approving majority of the votes of the electors.”
This view finds support in the text books and reports. Thus, “The time an amendment becomes operative may be fixed by the Constitution or by the terms of the amendment itself.” 12 Corpus Juris, 721. '(The italics are mine).
In Reade v. City of Durham, — N. C. —, 92 S. E. Rep. 712, the court said, “The time when the amendments should become effective is as much a part of the submission as the amendments themselves. No one contends that if the provision as to the time the amendments should take effect had been submitted as a part of the amendments and voted on by the people it would be operative.”
“The general rule that Constitutions and Constitutional Amendments take effect upon their ratification by the people, unless otherwise provided in the instrument it
•The Ohio Constitution had a provision similar to ours that when an amendment is adopted by the electors it “shall become a part of the Constitution.” A resolution of the Ohio Legislature proposing an amendment to the Constitution provided that if a majority of the electors voting on the amendment should adopt the same, it should become part of the Constitution on and after the first day of January, 1914.
This resolution was not submitted to a vote of the people with the amendment. For that reason it was held that the mere passage by the Legislature of such a resolution could not prevent the operation of the constitutional provision that amendments should become part of the Constitution upon their adoption by the electors; but the court said “The Constitution is positive in its terms and provides that the amendment shall become a part of the Constitution when a majority of the electors voting on the same shall adopt it. The time when an amendment is to become effective can be submitted to the electors, as in the case of the amendments of 1912, wherein it was expressly provided when they should go into effect. * * * There is nothing in the Constitution of this State postponing the operation of an amendment, and it cannot be postponed unless the proposition to postpone is submitted to the electors and is adopted by a majority of those voting thereon.” State ex rel. McNamara v. Campbell, 94 Ohio St. 403, 115 N. E. Rep. 29. This is entirely in accord with our position in the Correlis case.
The terms “a part of,” “be effective,” “take effect,” “be in operation,” “in force” are used interchangeably by text writers and in opinions by Justices of Courts of last re sort, in relation to the effect of constitutional enactments upon legislative action.
Both opinions in this case concede that prior to January 1, 1919, the old Art. XIX was in force as part of the Constitution. This article was an inhibition on the Legislature to enact “actual or practical prohibition” for the entire State. Ex parte Lewinsky, 66 Fla. 324, 63 South. Rep. 577; Ex parte Pricha, 70 Fla. 265, 70 South. Rep. 406. In the Pricha case this court said, “Unquestionably but for the provision contained in Art. XIX of the State Constitution, the Legislature would have the power to prohibit and suppress the traffic in intoxicating liquors.”
Article XIX, as amended, prohibits absolutely the “manufacture, sale, barter or exchange” of intoxicating liquors and beverages.
The original Article XIX placed certain limitations upon the power of the Legislature; the amended article removed them. They were repugnant to each other, and each cannot be a x>art of the Constitution at the same time.
The Legislature was fully cognizant of the provision of See. 1, Art. XYII — and of the decision of this court in the Advisory Opinion to the Governor, supra, when it
The decision of this court in the Correlis case, supra, that was concurred in by all the Justices, seems to me conclusive on this question.
“By the terms of this amendment it was to go into effect on the first day of January, A. D. 1919. This of itself rescued the amendment from- the provision of Article XVII, by which amendment to the Constitution become effective upon receiving the approving majority of the votes of the electors at the election. Criminal Costs Amendment, Advisory Opinion to the Governor, 15 Fla. 735; see also, Basnett v. City of Jacksonville, 19 Fla. 664. In those cases the amendments did not fix a day subsequent to the adoption for the amendment to take effect. 12 C. J. 721; Reade v. City of Durham, supra; Am. & Eng. Ency. Law (2nd ed.) 910.
Article XIX of the State Constitution providing for local option sales of intoxicating liquors remained in force until January 1, 1919, when it was superseded by the amendment to Article XIX forbidding the manufacture, sale, barter or exchange of alcoholic or intoxicating liquors and beverages in this State.”
Rehearing
ON REHEARING.
The points enumerated in the petition for rehearing were not overlooked by the court.
Even if Chapter 7736, Acts of 1918, is “supplementary to Chapter 7288 of the Laws of Florida of 1917,” as stated in the petition for rehearing, but not in the act itself,
Chapter 7736 could not have been “passed to overcome the decision of the Supreme Court in the Francis case.” (76 Fla. 304, 79 South. Rep. 753), as asserted in the petition for rehearing, since Original Article XIX to which the decisions in the Francis case refers, had ceased to exist as organic law when Chapter 7736 became operative as law. The decision in the Francis case has reference to Chapter 7284, which purported to be effective as law while Original Article XIX of the Constitution was in force.
The fact that Chapter 7736 contains a provision that “The intention is hereby expressed that this Act shall be construed as. supplementary to the Act approved April 24th, 1917 (Chapter 7283), and so much of said Act as is not clearly inconsistent with the provisions of this Act shall remain in full force and effect throughout the State when this Act goes into effect,” does not affect the validity of Chapter 7736 in the particulars involved in this case. Section 22, Chapter 7736, expressly provides “That, if for any reason, any section or provision of this Act shall be adjudged-unconstitutional, or otherwise inoperative, such fact shall not be held to affect any other section or provision in this Act contained., but the same shall remain in full force and effect as if the section or provision adjudged unconstitutional or inoperative had not orig
In Fine v. Moran, 74 Fla. 417, 77 South. Rep. 533, it was held that statutory regulations of the sale of non-intoxicating beverages in dry counties did not violate Original Article XIX of the State Constitution, since such regulations were within the police power of the State and tended to' enforce prohibitions of the sale of intoxicating liquors in dry counties.
In Ex Parte Francis, 76 Fla. 304, 79 South. Rep. 753, it was held that statutory regulations of the possession and transportation of intoxicating liquors violated Original Article XIX, because the inherent police power of the State to regulate the possession and transportation of intoxicating liquors in dry counties, was by implication restrained by Original Article XIX, under which the sale of intoxicating liquors was prohibited by local option elections.
In Correlis v. State, 78 Fla. 44, 82 South. Rep. 601, it was held that Amended Article XIX of the State Constitution took effect and became operative on January 1, 1919, and on that date entirely superseded original Article XIX. Amended Article XIX was only potentially efficacious between the date of its adoption at the general election in November, 1918, and the date on which the amended article became effective, January 1, 1919.
In Morasso v. Van Pelt, 77 Fla. 432, 81 South. Rep. 529, it was held that Chapter 7736, Laws of Florida, the statute here involved, regulating the transportation and possession of intoxicating liquors in the State, did not violate amended Article XIX of the State Constitution
In this case it was held that Chapter 7736, Laws of Florida enacted in December, 1918, to take effect January 1, 1919, did not violate original Article XIX, nor any other provision of the Constitution, since it did not become effective or operative as law until original Article XIX had ceased to be a part of the Constitution.
The prosecution in this case is for a violation of Chapter 7736, Laws of Florida, committed before the Federal Prohibition Amendment, Art. 18, became effective on January 16, 1920, and this proceeding is not affected by the Federal amendment or the statutory enactments of Congress thereunder.
Original Article XIX was a limitation upon the power of the legislature only in making effective any other method for determining whether the sale of intoxicating liquors should be prohibited, except the method provided in the Article, viz. local option elections.
In giving direct authority severally to the counties of the State to have local option prohibition of the sale of intoxicating liquors, original Article XIX did not otherwise limit the police power of the legislature. The rule expressio unius est exelusio alterius might be applied to limit the power of the legislature where the particular terms of an organic provision specifically regulating legislative action as to the sale or gift of intoxicating liquors, show an intent to thereby exclude legislative power to regulate the mere possession of intoxicating liquors, matters not mentioned in the organic provisions, as was held in State v. Gilman, 33 West Va. 146, 10 S. E. Rep. 283; Holley v. State, 14 Tex. App. 505; Common
In State v. Gilman, 33 W. Va. 146, 10 S. E. Rep. 283, the organic provision that “laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this State,” was treated as a grant of power to the legislature and not a limitation upon the general law-making power of the legislature, in the holding that such provision forbad' a statutory regulation of the possession of spirituous liquors by one person for another by requiring a license therefor to be obtained. The rule expressio v/nms est exohmo altprius was applied apparently upon the theory that the legislature had no power to regulate the possession of intoxicating liquors as a means of preventing unlawful sales of such liquors. This assumption was doubtless predicated upon the organic right to possess property, without considering the principle that the possession of property that is harmful in its use may he regulated under the police power without violating organic property rights. Property rights that are subject to government regulation are not protected from such regulation by the organic right to acquire, possess and protect property.
In State v. Sixo, 77 W. Va. 243, 87 S. E. Rep. 267, it was held that the amended constitutional provision forbidding “the manufacture, sale and' keeping for sale” of intoxicating liquors, etc., did not render invalid a statute regulating the possession of intoxicating liquors by requiring the containers of .such liquors in excess of prescribed quantities to be marked or labeled in a stated manner. The rule pxpressio tmius est exohi-sio alterius was applied in the Gilman case, but not in the Sixo case. The original organic provision apparently was no more a
The real holding in the Gilman case is that the particular regulation exceeded the police power of the State as interpreted Toy the court at that time. The same may be said of the case of State v. Williams, 146 N. C. 618, 61 S. E. Rep. 61, 17 L. R. A. (N. S.) 299, referred to in Glenn v. Southern Express Co., 170 N. C. 286, 87 S. E. Rep. 136, L. R. A. 1918-B 438; State v. Carpenter, 173 N. C. 767, 92 S. E. Rep. 373. The prevailing views are expressed in Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. Rep. 98; Barbour v. State, 249 U. S. 454, 39 Sup. Ct. Rep. 316; DeLaney v. Plunkett, — Ga. —, 91 S. E. Rep. 561, L. R. A. 1917-D 926; notes in 2 A. L. R. 1085; Schmitt v. W. Cook Brewing Co., — Ind. —, 120 N. E. Rep. 19; State v. Ross, — N. D. —, 170 N. W. Rep. 121; Commonwealth v. Intoxicating Liquors, 172 Mass. 311, 52 N. E. Rep. 389, and other like cases.
The Texas Constitution, Section 20, Article XVI, provided that “the legislature shall, • at its first session, enact a law whereby the qualified voters of any county, justice’s precinct, town or city, by a majority vote, from time to time may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.”
Under this organic provision it was in Holley v. State, 14 Tex. App. 505, properly held that the legislature could not authorize the counties, etc., of the State by local option election to prohibit the “gift” of intoxicating liquors. See Stalworth v. State, 16 Tex. App. 345; Steele v. State 19 Tex. App. 425; Nineger v. State, 25 Tex. App. 449, 8 S. W. Rep. 480.
■ In the much later case of Longmire v. State, 75 Tex. Crim. 616, 171 S. W. Rep. 1165, Ann. Cas. 1917-A 726, text 729, it is said: “Instead of Section.20 of Article 16 being an implied limitation on the power of the legislature to pass all necessary laws to render effective the prohibition law wherever adopted, we think if the legislature had not already possessed the authority by virtue of being the representative of sovereignty, the authority to pass all necessary laws to render effective the prohibition law wherever adopted would be necessarily implied by virtue of Section 20 of Article 16.” See Exparte Davis, — Tex. Cr. App. —, 215 S. W. Rep. 341; Exparte Fulton, 215 S. W. Rep. 331.
The Kentucky Constitution, by Section 61, provided that the general assembly shall “by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquor shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or repeal any law in force relating to the sale or gift of such liquors.”' In Commonwealth v. Campbell,
In Barber v. Commonwealth, 182 Ky. 200, 206 S. W. Rep. 290, a statute forbidding the transportation of intoxicating liquor into local option territory where its sale was unlawful, was held to be invalid, the court referring to contrary decisions in other States, observed on page 206 that “it does not appear that their police power is limited by constitutional provisions similar to
It is conceded that in this State the Legislature could have prohibited the sale of intoxicating liquor and could have reasonably regulated its possession and transportation a,s a means of preventing unlawful sales of such liquors, if the Constitution had not contained original Article NIN. That Article directly conferred upon the counties severally authority to prohibit the sale of intoxicating liquors by local option elections. To the authority conferred upon the counties the rule expressio unms est exelusio alterius was applicable and the Legislature could not have authorized the ootmties to prohibit or to regulate the possession or the transportation of intoxicating liquors by local option elections. But original Article NIN did not grant any power to the Legislature. By conferring the stated authority directly upon the counties, the general lawmaking power of the Legislature was thereby limvitecl by impUoation, but only as to prohibitions of the sale of intoxicating liquors, which authority was given by the Constitution directly to the several counties. The Article contained a command that “the Legislature shall provide necessary laws to carry out and enforce the provisions of Section One of this Article.” This is the only reference in the Article to the Legislature or to its lawmaking power. Original Article NIN merely limited the general lawmaking power of the Legislature as to prohibitions of the sale of intoxicating liquors. It makes it the duty of the Legislature to provide necessary laws to carry out and enforce prohibitions of the sale of intoxicating liquors pursuant to local option elections. The inherent power of the Legislature to make lawful prohibitions of sales effective, includes of necessity the power to prescribe - all
Did Original Article XIX forbid the passage of Chapter 7736 to take effect January 1st, 1919?
Chapter 7736 did not become operative or effective until Original Article XIX ceased to be organic law; and neither Original Article XIX nor any other provision of the Constitution forbade the passage of Chapter 7736 while Original Article XIX was in force, the statute by its terms- being made to take effect when its validity was secure under amended Article XIX.
In deciding in the Francis case that Chapter 7284 conflicted with Original Article XIX in so far as the statute purported at that time to regulate the possession and transportation of intoxicating liquors, the court did not hold that anticipatory statutes could not be enacted that would, under an amendment to the Constitution, be valid when they became effective as laws by the terms of tlieir enactment. Amended Article XIX and Chapter 7736 are prospective in their operation. A statute is effective as law only when it becomes operative. Sammis v. Bennett, 32 Fla. 458, text 460, 14 South. Rep. 90; Thompson v. State, 56 Fla. 107, 47 South. Rep. 816; Thorp v. Smith, 64 Fla. 154, 59 South. Rep. 193; in re Alexander, 53 Fla. 647, 44 South. Rep. 175; State v. Bentley, 80 Kan. 227, 101 Pac. Rep. 1073; Gilbert v. Ackerman, 159 N. Y. 118, 53 N. E. Rep. 753, 45 L. R. A. 118.
As neither amended Article XIX nor Chapter 7736 was in force until after Original Article XIX had ceased to
Whether amended Article XIX, in so far as it forbids the manufacture, sale, barter or exchange of intoxicating liquors, is self-executing or not, the validity of Chapter 7736 is not thereby affected. Amended Article XIX does not provide penalties for its violation, nor does it provide regulations suitable to its effective enforcement.
The provisions of amended Article XIX that “The Legislature shall enact suitable laws for the enforcement of the provisions of this Article” does not “have the effect of postponing the effectiveness of the amendment as a part of the Constitution of the State until there should be legislative regulation under the new Article after it becomes effective.” There was and is nothing in the Constitution or Original Article' XIX forbidding the passage of Chapter 7736 in December, 1918, to take effect January 1, 1919 concurrently with amended Article XIX that had already been adopted at the polls- to take effect at the stated time. As Chapter 7736 was not effective as law until after Original Article XIX had ceased to be organic law, it could not have conflicted with such Article.
In substance the holding is that neither Original Article XIX nor any other provision of the Constitution
The petition for rehearing states that “the plaintiff in error concedes that had he violated the law against the manufacture or sale of intoxicating liuqor he could have been punished under the provisions of Chapter 7288 of the Laws of Florida, 1917.” Chapter 7288 was in 1917 enacted “to make effective Article XIX of the Constitution of the State of Florida as amended” and to “become effective upon the adoption by the electors of the proposed amendment to Article XIX.” If Chapter 7288 was effective in 1919, for any purpose, no reason appears why Chapter 7736 was not also effective in 1919. After the enactment of Chapter 7288 and before the passage of Chapter 7736, the proposed amendment to Article XIX was adopted at the polls, and would inevitably take effect at the time stated therein.
The decision in Ex Parte Francis, 76 Fla. 303, 79 South. Rep. 753, was that certain provisions of Chapter 7284 tlien sought to be enforced were in conflict with Original Article XIX; but it was not decided that the Legislature could not enact a law to take effect in the future when it would be valid by virtue of an amendment to Article XIX that had been adopted- at the polls to become effective concurrently with the statute.
If Original Article XIX -can be held to forbid the enactment prior to January 1st, 1919, of a law to take effect January 1st, 1919, to penalize the possession or transportation of intoxicating liquors after January 1st, 1919, then Original Article XIX, likewise forbade the enactment prior to January 1st, 1919, of statutes penalizing the manufacture or sale of intoxicating liquors, since Original Article XIX related to local option sales of intoxicating liquors and not to the possession or transportation of such liquors. There is nothing in Original Article XIX forbidding the enactment of .a statute regulating the transportation and possession of intoxicating liquors, the statute not to take effect until a stated time in the future when an amendment to Article XIX would be in force under which amendment the statute would validly be operative. See Pratt v. Allen, 13 Conn. 119; Galveston, B. & C. N. G. Ry. Co. v. Gross, 47 Texas 428. 12 C. J. 742.
The enactment of Chapter 7736 in December, 1918, was not by virtue of power conferred by amended Article XIX, for amended Article XIX was not in force until January 1st, 1919. Chapter 7736 was enacted pursuant to the general lawmaking power of the Legislature; and the enactment of Chapter 7736 in December, 1918, to take effect January 1st, 1919, was not forbidden by Original
There was no session of the Legislature after the Constitution of 1885, including Article XIX, was promulgated, until April, 1887, after the Constitution and Ar-tile XIX became effective as organic law January 1st, 1887. Nor was there a session of the Legislature after the adoption of the amendment to Section 9 of Article XVI in 1894, until the regular session of 1895. The same may be said of other amendments.
In Sammis v. Bennett, 32 Fla. 458, 14 South. Rep. 90, and Thompson v. State, 56 Fla. 107, 47 South. Rep. 816, it was held the statutes did not have the force of law till they “became operative” on dates subsequent to their enactment.
In Mayor, etc., v. Blackburn, 27 La. Ann. 544, the statute was passed after the new Constitution had been adopted; and an attempt was made to operate under it while the constitutional provisions with which it conflicted were in force. This is like the ordinary case of unconstitutional statutes.
As the enactment in December, 1918, of Chapter 7736 to take effect Janucury 1st, 1919, was not forbidden by Original Article XIX, the statute was not “void from the beginning,” and its effectiveness on January 1st, 1919, was valid under amended Article XIX, which became operative that day.
“A statute has not ex proprio vigore, any force until it becomes the law: of the land, and that is when, by its terms, it takes effect.” Gilbert v. Ackerman, 159 N. Y.
“A -statute passed to take effect at a future day is to be understood as speaking from the time it goes into operation, and not from the time of its passage.” Price v. Hopkin, 13 Mich. 318; Rice v. Ruddiman, 10 Mich. 125; 26 Am. & Eng. Ency. Law (2nd ed.) 565 notes 1 and 2.
“No statute has eco -proprio vigore, any force until it becomes the law of the la;nd.” Cargill v. Power, 1 Mich. 369, 370. See also Blow v. Lamberon, 1 Iowa 435, text 443; State v. Bentley, 80 Kan. 227, 101 Pac. Rep. 1073; Shook v. Laufer, (Tex. Civ. App.), 100 S. W. Rep. 1042; State v. Williams, 173 Ind. 414, 90 N. E. Rep. 754, 21 Ann. Cas. 986; Mills v. State Board of Osteopathic Registration & Examination, 135 Mich. 525, 98 N. W. Rep. 19, 3 Ann. Cas. 735 and notes.
“Until the time arrives when it is to take effect and be in force, a statute which has been passed by both houses of the legislature and approved by the executive has no force whatever for any purpose.” 36 Cyc. 1192, notes 6 and 7; State v. Northern Pac. R. Co., 36 Mont. 582, 93 Pac. Rep. 945, 15 L. R. A. (N. S.) 134, text 138.
The Constitution epxressly provides for the enactment of laws to take effect at a subsequent date; and in the light of reason and of the above authorities the constitutional validity of a statute should be determined' as of the time when the statute becomes operative, not when it was enacted, unless the Constitution forbids the pas]suge of the law at any time. The validity of a statute cannot be tested till it becomes effective or operative. Original
To hold that Chapter 7736 violates original Article XIX of the State Constitution, would be to give to the statute the force of law “during a period' when the Constitution (in authorizing the law to state when it shall take effect) has declared it shall not take effect or be in force, and when the obvious design and intention was, that it should have no force or effect whatever.” Price v. Hopkin, 13 Mich. 318, text 326-7; Mills v. State Board of Osteopathic Registration & Examination, supra. See also in re. Alexander, 53 Fla. 647, 44 South. Rep. 175; Thompson v. State, 56 Fla. 107, 47 South. Rep. 816.
In McNeill v. Webeking, 66 Fla. 407, 63 South. Rep. 728, it was said the courts consider only the power of the legislature to enact statutes alleged to be unconstitutional. In this case the holding is that neither the Constitution nor Original Article XIX when it was in force, forbad the enactment of Chapter 7736 in December, 1918, to take effect after Original Article XIX has ceased to be a part of the organic law.
In 12 C. J. 727, it is said: “An Act of the legislature not authorized by the Constitution at the time of its passage is absolutely void, and is not validated by a subsequent adoption of an amendment to the Constitution authorizing the passage of such an Act.” Citing cases. These cases are as follows:
In Seneca Min. Co. v. Osmun, 82 Mich. 573, 47 S. W. Rep. 25, the statute was enacted after the amendment to the Constitution became effective as oragnic law.
In Dewar v. People, 40 Mich. 401, and Mt. Pleasant v. Vanice, 43 Mich. 361, 5 N. W. Rep. 378, void ordinances were not validated by a subsequent amendment of organic law.
In State v. Ellis, 22 Wash. 129, 60 Pac. Rep. 136, a void act was not validated by a subsequent constitutional amendment that did not include the void act in its provisions.
In Banz v. Smith, 133 Cal. 102, 65 Pac. Rep. 309, and Fleming v. Hence, 153 Cal. 162, 94 Pac. Rep. 620, a void provision of a city charter was not validated by the subsequent adoption of an amendment to the Constitution.
In all these cases the statutes purported to Toe effective as laws, not merely enactments to take effect at a future date. The word “passage” as used in 12 C. J. 727, has reference to the taking effect of statutes as operative laws. See Schneider v. Hussey, 2 Hasbrouck’s (Idaho) 8, 1 Pac. Rep. 343; Harding v. People, 10 Colo. 387, 15 Pac. Rep. 727; Churchill v. Bemis, 45 Neb. 724, 64 N. W. Rep. 348; Rogers v. Vass, 6 Iowa 405; Mills v. State Board of Osteopathic Registration & Examination, supra; Shook v. Laufer, supra; Scales v. Marshall, 96 Tex. 140, 70 S. W. Rep. 945; State v. Bentley, 80 Kan. 227, 101 Pac. Rep. 1073; 25 R. C. L. 796, Sec. 44; State v. Williams, 173 Ind. 414, 90 N. E. Rep. 754, 21 Ann. Cas. 986; In re Estate of Howe, 112 N. Y. 100, 19 N. E. Rep. 513, 2 L. R. A. 825; State v. Mounts, 36 W. Va. 179, 14 S. E. Rep. 407, 15 L. R. A. 243; Mills v. State Board of
In Etchison Drilling Co. v. Flourney, 131 La. 442, 59 South Rep. 867, it was held “that the Legislature was prohibited by the C'ontitution * * * from passing the Act” and “that the Act was unconstitutional at the time of its adoption or attempted adoption, and that it has not been validated by the subsequent adoption of the amendment to the Constitution,” which- amendment was adopted after the statute was enacted.
In none of the above cases was the question decided that is presented here.
A statute valid when enacted and made effective is not invalidated by a subsequent amendment to the Constitution, unless the amendment is designed to have that effect. See Cutting v. Taylor, 3 S. Dak. 11, 51 N. W. Rep. 949, 15 L. R. A. 691; Reade v. City of Durham, 173 N. C. 668, 92 S. E. Rep. 712.
Under the express provision of Section 18 of Article III of the Constitution that “no law shall take effect until sixty days from the final adjournment of the session of the Legislature at which it may .have been enacted, unless otherwise specially provided in such law,” Chapter 7736, “specially provided in such law,” that “this Act shall go into effect on the first day of January, A. D. 1919.” This specific designation of the future day when the Act “shall go into effect” is equivalent to a constitutional and legislative declaration that the statute shall have no effect until the designated day. 2 Am. & Eng. Ency. Law (2nd ed.) 565; Note 2; Larrabee v. Talbot, 5 Gill. (Md.) 426, 46 Am. Dec. 637.
While Chapter 7736 was suspended and before it became operative as law it could not conflict with original Article XIX or with any other provision of the Constitution, the mere enactment cf the statute to take effect at a future day when its operation would be valid not'being expressly or impliedly forbidden by any provision of organic law. The enactment of statutes to take effect and become operative in the future being expressly provided for by the Constitution, a large part of the statute laws of the State whose validity is not questioned was enacted to take effect1 and become operative at dates subsequent to their enactment.
To make Chapter 7736 effective prior to January 1, 1919, so as to conflict with Original Article XIX, would violate the express provisions of Section 8 of Article III
In order to conflict with Original Article XIX of the Constitution while that Article was in force as organic law, Chapter 7736 must be construed to have been effective as law prior to January 1, 1919, in violation of Section 8 of Article III of the Constitution and in opposition to the express terms of the statute. 26 Am. & Eng. Ency. Law (2nd ed.) 565, Note 2.
The Supreme Court of the United States has held the Act of Congress of October 8th, 1919, known as the Volstead Prohibition Enforcement Act, to be a valid law, although it was passed by Congress before the Eighteenth Amendment t'o the Federal Constitution became effective on January 16th, 1920, and although Congress has no legislative power except such as is granted to or conferred upon it by the Constitution of the United States. Rhode Island v. Palmer, U. S. Sup. Ct. June 7/20.
If the Volstead Federal Enforcement statute enacted October 28th, 1919, after the Eighteenth Amendment to the Federal Constitution had been adopted by the Legislatures of three-fourths of the States of the Union, but before the amendment became effective January 16th, 1920, is a valid law, when the Congress has no power to enact laws except as that power is granted by the Federal Constitution, then Chapter 7736, Laws of Florida, is a valid law for the reason that the Legislature may enact any statute that is not forbidden by the State or Fedei*al Constitution, and there is nothing in Original Article XIX, or in any other provision of the State Constitution or in the Federal Constitution forbidding the Legislature to enact Chapter 7736, in December, 1918, to take effect
In Section 1, Article III of the State Constitution, “the legislative authority of the State is vested in the Legislature.” Other provisions of the Constitution relate to specific legislative powers or limitations. As the general lawmaking power of the State is vested in the Legislature, and as no provision of the Constitution forbad the enactment of Chapter 7736, it seems inevitable that its enactment to become effective concurrently with amended Article XIX was within the lawmaking power of the State Legislature.
Even though portions of Chapter 7736 may be invalid, should they be found to be in conflict with organic property rights, the provision of the statute under which the petitioners are held does not violate any organic rights, and being severable and enforceable without reference to portions of the statute that may be invalid, is not affected thereby; and the enactment of Chapter 7736 after the adoption at the polls of amended Article XIX, but before it became operative, the statute to take effect concurrently with the amended Article of the Constitution, does not appear to be violative of any provision or principle of organic law.
Certainly it cannot be said that beyond all reasonable doubt the Legislature had no power to enact Chapter 7736 in December, 1918, to take effect January 1, 1919, concurrently with the then adopted amended Article XIX of the State Constitution; and all the authorities hold that' if there is a reasonable doubt as to the constitutionality of a statute, it is the duty of the courts to give effect to the enactment, since a statute is the law of
Affirmed.
