State ex rel. Crumpton v. Montgomery

59 So. 294 | Ala. | 1912

McCLELLAN, J.

This proceeding in the nature of quo warranto, instituted by the state on the relation of W. B. Crumpton, is to test the right of Montgomery, Hails, and Banks to occupy and exercise the powers and privileges of “excise commissioners” and of the “excise commission” in the county of Montgomery, state of Alabama. The prayer of the petition is that the respondents, Montgomery, Hails, and Banks, be required “to show by what warrant or authority they claim the right to hold said offices, respectively, and to exercise the rights and powers of the excise commission, and that on final hearing judgment be entered ousting said defendants from said respective offices.”

Quo warranto is, in this state, the legal, proper means to test and determine the rights upon which the prayed judicial power would operate.—Code, § 5453; Montgomery v. State ex rel., 107 Ala. 372, 18 South. 157; Jackson v. State ex rel., 143 Ala. 145, 42 South. 61.

As appears from the prayer of the petition, from the particular object of the proceeding, the questions raised are: First, are there such offices in legal existence as those to the exercise of which the respondents assert claim; and, second, if such offices legally exist, are these respondents the validly chosen incumbents thereof? The petitioner’s general theory is that these offices do not legally exist, and are hence legally incapable of occupancy by respondents, because of the constitutional invalidity of the legislation to which their creation is attributed — the legislation by which the establishment of these offices purports to have been effected. The petition assumes, in averment, the task of enumerating the-particulars in which this legislation violates the fundamental laws of this state and of the United States, and these objections to its validity are very numerous.

It is the established rule of this court to decline to pass upon the constitutional validity of legislative enactments, unless the determination of the questions and rights then before it requires their decision.—Smith v. Speed, 50 Ala. 276; Bray v. State, 140 Ala. 172, 179, 37 South. 250; Hill v. Tarver, 130 Ala. 592, 30 South. 499. It is of course a corailary of this rule, arising from the reason of the rule itself, that, where several or many constitutional questions are presented by the record, that or those only will be considered or determined which is or are necessary to the adjudication of the controversy. In short, this court will not decide any constitutional question respecting the validity of legislation, unless its decision thereupon is “indispensable” to the determination of that litigation. Wisdom and a just respect for the Legislature suggest and approve these rules. If, as will later appear is the partial condition on this appeal, litigants may raise upon a record any and many constitutional questions, and if, on appeal, this court should assume the burden and obligation of response to all of them, whether decisive of the appeal or not, Ave should then have a process of mere interrogation of this court, and, in many instances, the determination, in the given case, of moot questions, very like, if indeed, not identical with, the procedure, in some jurisdictions, official propounding to the highest tribunal of questions affecting the Aralidity of legislation. Favorable and prone as are the judges to respond to diligent, able, and instructive discussions of counsel of even immaterial questions presented by a record, this court cannot and will not adopt the procedure to which the stated process would lead.

Another and equally wise restriction which this court always recognizes in respect of constitutional questions, presented in opposition to presumptively valid legislation, is thus expressed in Shehane v. Bailey, 110 Ala. 308, 20 South. 359: “Nor Avill a court listen to an objection made to the constitutionality of an act of the Legislature by a party Avliose rights it does not specially affect. An act of the Legislature will be assumed to be valid until some one complains Avhose rights it invades, and it is only Avhen some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights, that the objection of unconstitution ality can be presented and sustained.”

We have taken the pains to state above the exact major grounds, two in number, upon which the ouster of these respondents is sought, with a particular view to subsequent elimination of questions argued that do not have controlling bearing upon the valid existence vel non of the office of excise commissioner, áñd, in sequence, up'bn the lawfulness Vel non of the respondents’ respective incumbency theréof.

When the Legislature of 1911 assembled, this state was subject to the provisions of what was commonly called the “state-wide prohibition law.” The traffic in intoxicants was prohibited throughout the state. From common knowledge we know, as all do, that, through the selection by the electorate of the chief executive to take office in January, 1911, the public will was understood to be that the state should adopt the policy of “local option” — should depart from the policy of state-wide prohibition. The policy of the state therefore obtaining did not contemplate or permit the exemption, at any time or under any circumstances, of any political subdivision of the state from the operation of the state-wide prohibition of the traffic, nor, of course, did the policy comprehend as a chief factor any regulation of the traffic. With the elder policy then prevailing and the policy of local option treatment and regulation of the traffic foreshadowed, at least in degree, the Legislature entered upon the task of changing the state’s statutory policy so as to vest in the electorate of the county, as a unit, the option of having the traffic restored therein, and, if to be restored, to prescribe the methods for the control of the manufacture and disposition of intoxicants. Such, to state the matter most generally, was the legislative theory and. intent when the “Parks” and “Smith Bills” passed through the forms of enactment, as the petition admits. The “Parks Bill” was approved February 21, 1911. — Gen. Acts 1911, pp. 26-31. The “Smith Bill” was approved April 6, 1911. — Gen. Acts 1911, pp. 249-288. Reference to them, in this opinion, by. these commonly-accepted designations will be continued.

.For. the purpose of a general understanding and statement of the respective objects of these enactments, it will suffice to quote at this point their respective titles: Parks Bill: “An act to submit -to the qualified electors of each of the counties in this state the question of whether or not the manufacture and sale of spirituous, vinous or malt liquors shall he legalized therein; and whether or not such liquors shall be sold by dispensaries or by private dealers under a license.” Smith Bill: “An act to regulate the manufacture, sale and other disposition of spirituous, vinous and malt liquors in the incorporated towns and cities in the state of Alabama whenever such manufacture, sale or other disposition is authorized at and by an election by the qualified electors of the county in which such town or city is' situated, for determining in and by such elections whether the sale of such liquors shall be by dispensary or by private dealers under license; to regulate the establishment and operation of such dispensaries as may be so authorized; to provide for the creation of an excise commission in such cities or towns in Avhich the manufacture and sale of said liquors are authorized as herein provided; to prescribe the power and duties of such excise commission wherein the manufacture and sale of said liquors under license is authorized as herein provided; to prescribe the amount of license taxes to be paid by each licensee and the respective portions of the net revenue of each dispensary to be paid, respectively to the state, city or tOAvn operating the same, and the county in- which the same is operated; to require a bond of each licensee and prescribe its office, purpose and liabilities; to prohibit the manufacture, sale, barter, exchange or giving away to induce trade of said liquors, or any other intoxicating liquors or beverages in the state of Alabama, except as authorized by this act, and under a license obtained and held as in this act provided and to make unlawful and to prescribe penalties and punishment for all violations of this act,”

It appears that the Legislature separated into two enactments the conditional restoration and regulation, if restored, of the traffic (including, for convenience, in the term the manufacture as well) to the counties of the state. In the first — the Parks Bill — the question of choice of the electorate whether the traffic (including manufacture) should prevail in the county was the general legislative intent, and, if so, then, secondarily, whether the sales should he conducted through the means of the license system or of dispensaries. In the second — the Smith Bill — the regulation of the manufacture and sale, if such was the choice of the electorate, was the general legislative intent; the restrictions and requirements of the regulation being suited to the methods of sales the electorate preferred. This latter enactment has 94 sections evincing throughout a purpose to deal with the subject in a particular, as well as a comprehensive, way. It is in the Smith Bill, as was to be expected from the division in enactment of the subject adopted by the Legislature, that the offices of excise commissioners and the board of excise commissioners were, in the event of the restoral, by the ballot, of the manufacture and sale of liquors, created and the incumbency thereof provided for, and the duties, powers, and privileges thereof were established.

■ Both of these enactments purposed treatment of one general subject, viz., the- manufacture and sale of intoxicants, though in legislative judgment the éffectuation of this intent' was thought the better to be* conserved by employing for the expression thereof two' enactments as stated.. That this division was rational, was naturally practicable, was: not-inhibited by any provision of the organic law, cannot, be subject ta the least doubt. The basic line between the two acts was¡ choice by the electorate in the first, and regulation of the new order which, upon the contingency provided, should be installed in the second. If the ballot contemplated in the first act was unfavorable to the restoral of the manufacture and sale in the county voting upon the issue, nothing was left upon which to visit, in that county, the regulatory provisions of the second act. This, alone, was sufficient to suggest the division of the general subject, as, in fact, did prevail.

Passed as these acts were at the same session, treating, as they purport to do, one general subject of legislative policy, related, as they are, to each other, as cause to effect, referring as did the former to that to follow, it is hardly necessary to say that these acts must be considered and construed as in pari materia.

We will now take up for consideration those constitutional objections to the legislation assailed which, if sustained, would affect the result on this appeal.

It is first insisted that the Parks Bill was imperfect as an act of legislation. In section 17 thereof it is provided: “That the provisions of this act shall not become effective until there shall be hereafter provided by law, regulations and restrictions for the conduct of dispensaries and for the issuance of license to private dealers, for the manufacture or sale of said liquors.” The office and effect of this section was to suspend the going into operation of the Parks Bill until a clearly stipulated contingency should happen-. The abstract power of the Legislature to so order with respect to an act’s suspension, operation, or effect is too well settled in this state to admit of any doubt. It has been repeatedly affirmed where the contingency was to be afforded outside of the Legislature. Certainly, as an abstract matter, the Legislature may hinge the going into operation of its own pronouncement upon a contingency which its own act must afford, if so it is afforded. But the argument is that the provision of section 17 operated, in connection with other provisions referring to then unenacted regulations and restrictions, to render the act incomplete. The Parks Bill was a complete enactment in all that it purported to effect, viz., an election upon defined issues, and the declaration, as law, of the consequence to thereupon, in certain events, ensue. Section 17 did nothing save to suspend — to postpone— the operation of that act until the hand that made it made the rules for the control of the consequences to, in certain events, follow, viz., the manufacture of liquors and the methods of sale in the county voting. The reference in several places therein, aside from section 17, to the regulatory act obviously took nothing from the affirmative legislation expressed in the Parks Bill. Had they been omitted, the general purpose of that act would not have been impaired. Such reference taken, care and comprehension in respect of regulation and control of a condition, which that act contemplated, would be created by an election thereunder.

It is to be readily conceded that without other legislation the Parks Bill was of no effect; but this result would have come, not from the incompleteness of the law, but from the affirmative restriction its electors placed upon its going into effect. The distinction between an abortive effort at legislation and an enactment that is not operative, because restrained by an unafforded contingency, is clear and obviously well founded. It is present in all cases where laws, validly enacted, are suspended or their operation postponed. The Parks Bill was, pending the enactment of the Smith Bill, and is, a complete law. The objection, on this account, is not tenable.

The local option election in Montgomery county was held subsequent to the approval of the Smith Bill April 6, 1911. Accordingly, if the Smith Bill afforded the contingency whereupon it was provided by section 17 of the Parks Bill that the Parks Bill should become operative, the issues submitted to the electorate, as prescribed by the Parks Bill, were issues formed under perfected legislation. These related laws, if not subject to other objections taken to them, relegated to the electorate no power of legislation, but only and solely the choice of acceptance of a perfected system which should alter the policy then prevailing in the voting county. We shall have occasion to recur to this subject in the progress of this opinion, which is following as near as may be the order of argument in briefs for appellant.

It is urged that the Parks Bill and the Smith Bill delegate to the people legislative power, because they hinge the issuance of license to sell liquors and the establishment of dispensaries, according to the preference of the electorate, upon the authorization or legislation of the sale thereof by the vote of the people. In short,, the contention is that the vote of the people, and not the law, authorizes — legalizes—the sale. We would prefer, out of deference to counsel, to find in this contention something more than a mere play upon Avords, but Ave-are unable to do so. The italicized terms must he referred to the legislative purpose, to be read from these intimately related laws. The issues submitted to the electorate and the unequivocal provision for the consequence of a choice, by the electorate, favorable to the restoral of the manufacture and traffic to the county voting thereon, demonstrate that no legislative power, no commission of the electorate to make laAV, was intended or effected. All the electorate can do under these laws (as respects the displacement of an existing order of things Avhen the election is held) is to choose Avhether to pass their county under the laws already then written. No court could, under acts employing, as these do, the terms discussed, possibly attain any other conclusion. The context and purpose'of the acts thus determine, as is often the case, the import of the terms.

It is next insisted that the Parks Bill is invalid because it delegates legislative power to the people in this: That a choice between the license system and the dispensary system is accorded the electorate. Both of these systems are provided for in the regulatory (Smith Bill) law. The argument is that such a choice of systems is an undelegable matter of legislative power. It is difficult to discover upon what reason, inviting distinction, this conferring of choice upon the electorate could be held to be unauthorized, invalid, and the major choice between prohibition, of the liquor traffic and the licensing thereof could be held valid. If one is valid, the other must be also. If one is void, the other must be also. There is nothing in the choice between the systems, each provided for operation if accepted by the electorate, that savors of allowing the electorate to make law or to supplement a law. The law is already written. The choice alone is: Which shall prevail in the county of the electorate, the one system or the other? No satisfying argument, and no authority in point, is presented for this contention. Our own consideration of this insistence has not discovered any reason to approve it.

It is next urged that the Parks Bill is invalid because enacted upon an unknown contingency. This is refuted by the express language of section 17. The contingency prescribed is shown to be fully known and definitely described. Its sole effect was upon the going into operation of the law, not upon its enactment. It is further contended that neither, nor both, of the laws under review authorize the sale of liquors. This objection is also plainly refuted by both the laws, in numberless places, as well as by their whole theory and general purposes.

The next insistence is that the Parks Bill contains three subjects, viz., the holding of an election, prohibition except in cities and towns, and deferring its going into effect to await future legislation. Manifestly the mere postponement or fixing, in futuro, of the time of going into effect of an enactment is not, in any sense, a part of the subject of the act within section 45 of the Constitution.

In Lindsay v. United States Savings Association, 120 Ala. 156, 24 South. 171, 42 L. R. A. 783, cited for appellant, the court was treating an expository act, and an act that was expressly, in its body, intended to have a retroactive operation to affect, in a confirmatory way, past transactions. It was condemned on other grounds as well as that its title gave no intimation of its retroactive effect. There the effectiveness of the act upon past transactions necessarily was of its subject — of its substance — while here the restraint of effectiveness, hinged for force upon a defined contingency, was upon its efficacy, its operation, as a law; and that as a governing instrument upon future conduct and action.

Section 10% of the Parks Bill is as follows: “The sale of spirituous, vinous, malt and other intoxicating drinks and beverages enumerated in this bill, shall not be permitted outside the corporate limits of cities or towns, nor shall the sale of such drinks and beverages be permitted in any town which has not at least one policeman or marshal continually employed.” We have already set out the title of this act. We do not construe the section as establishing or retaining prohibition in a county outside of municipalities of a defined police protection. This section merely confined the place or places in the county whereat the traffic could be carried on. The sale of liquors is legalized in the county, within the title of the act, whenever the sale may be lawfully made in a defined place or places therein. The effect of this section was to qualify the area or place of operation of the traffic if the electorate preferred the restoral of the traffic in the county. In other words, it was a limitation or qualification of one of the issues provided by the- bill to be submitted to the electorate. In that view it is germane to the subject clearly expressed in the title. In a sense it may be said to be a regulation, a matter without the title; but, in the broader sense of reference to and effect upon one of the issues submitted to the electorate, it is a part thereof, just as if its substance was read or written into section 6 of the Parks Bill immediately succeeding the word “permitted” in the fifth line from the beginning of the section. Unquestionably the legislative purpose was to assure the elector that, in his county, the traffic, if restored, would be only where wisdom and experience, often governmentally recognized, suggests, namely, where police protection is continually afforded.

It is further contended that the provision with respect to the description of the municipality in which sales may be authorized, viz., municipalities continually employing at least one police officer, effects to subject the operation and effectiveness of the law to the whim of the governing body of each municipality in an unrestricted poAver of discharging or employing a police officer or officers therein. Mitchell v. State ex rel. Florence Dispensary, 134 Ala. 392, 32 South. 687, is relied on as authority for this contention. The act condemned in that decision created a penniless corporation to carry on a dispensary for the sale of intoxicants, and undertook to expressly vest in the governing body thereof a discretion whether the dispensary should he operated and, if so, when it should cease operation; the consequence being that the laws prohibitory of the sale of intoxicants were made to depend for effect upon the discretion of the non-governmental corporate body in operating the dispensary provided for. It was ruled that such a process was an abortive effort to vest in that corporation legislative power — a 'discretionary power to determine the suspension of a law. Section 10% presents a very different status. In this state the power and authority to engage policemen and to afford police protection in municipalities is vested in the governmental authorities thereof, not in any merely corporate creation of legislative enactment. It is never doubted that such commission to preserve and promote order and peace in the towns and cities of the state is a valid delegation of the state’s authority to its municipal creature. To these agencies of, essentially, governmental nature and creation, a vast local authority may be and is lawfully delegated by the state. If the powers condemned in the Florence Dispensary decision had been committed to the governmental authorities of the municipality, and the decision had ruled the legislative effort invalid, we might then have a status someAvhat akin to that under consideration.

This section established a .condition by Avhich the application of the laAV, in any event,' depended. No discretion Avith respect to the laying of a law upon the toAvn, city, or county is thereby vested, even in the municipal g'OA’erning body. That such a body may remove the condition upon AAdiich depends the Iuav’s control and application Avithin that municipality is of course evident. Such action is not expressive of a vested discretion to suspend the laAV or to shift, as Avhim may suggest, the governmental control from one laAV to' another, but is only and solely the exercise of a power to afford or not the condition, the status which given, made, or created draws upon it certain definite consequences binding as law does bind. Such was the principle underlying and controlling the decision in Whaley’s Appeal, 168 Ala. 152, 52 South. 941, 30 L. R. A. (N. S.) 499. There a penal statute condemned the violation, fraudulently or willfully and knowingly,* of rules of street car companies engaged in the carriagé of passengers. It was contended that the abolition by the carrier of rules already made, or the failure of the carrier to make rules, effected to clothe the carrier with legislative power — with power to make or to suspend a law. The court replied: “The fact'that the rules may be changed or suspended is no delegation of authority to make, change, or suspend the law, but merely relates to the subject upon which the law operates.” (Italics supplied.) The written laws abound in illustrations of this principle. Every law presupposes .a status upon which to have its effect. It is necessary that every law define the subject of its operation. That that subject may depend for existence upon the will of one or more, or upon a contingency even, does not commit the law, but only its application, to the control of the influences that may make or afford the condition — status—upon which it will operate. An illustration is found in laws in which their application is made to depend upon the population of municipalities, if of one class in population, to be governed by one law,'if of another, by another law. It is readily conceivable that in such event enough of the population might voluntarily remove to place the municipality in another class, or, through lawful methods, the area of a municipality might be so contracted as to reduce the population to a number within another class of municipalities, subject to different provisions of law. Certainly, in such cases, it would not, could not, be soundly insisted that there was delegation of legislative power to make or change or suspend a law. The only effect of the action supposed in the illustration would be a change of a condition, a status, upon which the law operated. There is no merit in the contention that the police provision of section 10%, or that section as a whole, delegates any legislative power whatever.

In section 94 of the Smith Bill this is written: “Provided, that no license shall issue and no dispensary shall be established in any incorporated town or city in this state unless the manufacture, sale or other disposition of spirituous, vinous, or malt liquor is authorized by a majority vote of the qualified voters of the county in which such towns or cities are located.” The Parks Bill provides for an election on the issue of manufacture and sale only. It is urged for appellant that the condition upon which the issuance of license and the establishment of a dispensary is made to depend cannot be and has not been met in the county of Montgomery for that the issue submitted to the electorate did not comprehend “or other disposition” of intoxicants.—Yahn v. Merritt, 117 Ala. 485, 23 South. 71; Morgan v. State, 81 Ala. 72, 1 South. 472, and Miller v. Jones, 80 Ala. 89, are cited as sustaining the contention. These decisions dealt with the question Avhether certain acts, in respect of the liquor traffic provided for in the body of the act, were within the title. Here the proposition of the appellant is radically different. It is that the condition is single, and, to comply with it, each and all of the disjunctively stated elements should have been comprehended in the issue submitted to the electorate. We do not so understand the provision. It is clear to our minds that, so far as the quoted restraint upon the issuance of licenses and the establishment of dispensaries is concerned, a compliance therewith, in the election contemplated, is had when the manufacture or sale is the subject of the ballot. We cannot assume that the elements described are or should be conjoined. They are written disjunctively, and we must so treat them.

Again it is contended for appellant that, under the pertinent provision of section 94, as quoted, the requisite number of votes to establish the result in favor of the traffic is a majority of the qualified voters of the cotmty. Much of argument is pressed to support this view. It has been carefully weighed. If it is granted that the phrase “majority vote of the qualified voters” means, Avhen taken alone, a majority of the qualified voters of the county at the time the election is held, that meaning cannot be accepted when the whole of the legislation in which the expression occurs is considered, as must be done consistent with the rules prevailing with respect to enactments in pari materia. It will suffice to point out that, in the sections 10 and 11 of the Parks I5ill, the results on the issues submitted are expressly made to depend upon the majority of the votes cast, not on the majority, in the affirmative, of the qualified voters of the county. Hence, if that provision of section 94 of the Smith Bill should be interpreted as appellant contends, a conflict between it and the pertinent provisions of the Parks Bill would be instituted. It is our duty to avert that consequence. It is not to be supposed the Legislature intended to incorporate inconsistent provisions in these intimately related laws, nor that the efficacy, in any event, of the laws should depend upon a measure of electoral concurrence that is not provided for in any way, but which, on the contrary, is contemplated in a particularly prescribed measure, less in degree only. We therefore interpret that provision of section 94 as consisting with sections 10 and 11 of the Parks Bill.

It is further objected, that that feature of the Smith Bill, § 27, providing for the analysis, and, if impure and being sold in violation of the act, the condemnation, by the Excise Commission of liquors, is infractive of section 77 of the Constitution, which reads: “No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officers when authorized by law.”

It was ruled in State v. McGough, 118 Ala. 159, 24 South. 395, that the purpose of the section was to forbid, as it says, the creation or continuance of a state office for the inspection, etc., of merchandise, etc., saving to the lawmakers the power to provide therefor through the county and municipal organisms. It is the office, for the object specified, against which the section is directed. The construction taken on McGough’s appeal must be accepted. This section of the organic law has been reordained Avithout change.

In McGough’s appeal the act assailed provided alone for the inspection of commodities by a state officer, and to effect the major purpose restrained sales before inspection and also of the commodities not conforming to the test prescribed. It is seen that the sole motive for that enactment Avas inspection, and that its accomplishment was sought through a state officer, Avith subordinates in the districts of the state, upon Avhom no other duty Avas placed by the act.

In the Smith Bill the duty of analysis and condemnation for imperfection is but one of a great number imposed upon the excise commission. This duty is relatively incidental. If it had been omitted, the excise commission would still have had important duties for its performance. Accepting the McGough decision as fully as it may be, Ave do not think section 77 intends, nor does that decision so hold, to prescribe that no duty of inspection can be laid upon or created for a state officer upon -whom there rests the performance of substantial functions and obligations independent of an inspection, etc., of merchandise or commodities, who has for his service other substantial duties which render justifiable or commendable the continuance or creation of his office. Such, for instance, is the state office of commissioner of agriculture and industries, upon which the duty of inspection of fertilizers, food products, etc., is imposed.—Steiner v. Ray, 84 Ala. 93, 4 South. 172, 5 Am. St. Rep. 332. The just effect and purpose of section 77 is obviously not impaired or opposed when the sole excuse for the continuance or creation of the state office is not the object it expressly describes. Indeed, it is not conceivable that the makers of the Constitution intended section 77 to read or be understood as providing that no duty to inspect or measiore any merchandise, etc., should he laid upon a state officer, which would be the effect if the section is applied to the office of excise commissioner or to the excise commission. The objection is untenable, even if it be assumed, for the occasion only, that the office in question is a state office — a matter upon which well-founded doubt, at least, may exist.

Again it is contended for appellant that the Smith Bill is unconstitutional for that it confers upon the excise commission unwarranted powers. Some of these powers of which appellant complains are: (a) That the issuance of licenses to applicants, where they exceed the limit prescribed therefor, are committed to the unfettered discretion of the excise commission; (b) that contests of applications for licenses are submitted for determination to the discretion of the excise commission, and the decision thereof is made final; (c) that the powers to transfer or suspend licenses are also so committed to the excise commission; (d) that the excise commission is vested with the power to hear and determine the issues whether a licensee has violated the provisions of the act, and, if so advised, to suspend or revoke his or its license; (e) and that, in the absence of provision to the contrary, it is, under the Smith Bill, possible for the excise commission to defeat the law, notwithstanding its electoral acceptance by a county, and to retain prohibition of the traffic therein by simply declining to issue licenses to sell under that system, if accepted by the electorate. None of these objections are well founded.

It is universally recognized that the act of engaging in the sale of intoxicants may be wholly forbidden, and that a license to engage in the traffic in liquors is a privilege merely, revocable at the will of the superior granting power; that there is in it no element of property right or vested interest of any kind. Being so, it may be a necessary consequence that rules of law, protective of vested rights, are without influence in respect of such a privilege. It would seem to be axiomatic that even one who is, as he conceives, Avrongfully denied participation in a matter of mere privilege, or Avho is discriminated against in his effort or desire to enjoy that privilege Avith another no better entitled, has no firm basis of complaint, unless the law of the creation of the privilege and governing the selection of its beneficiaries brings him Avithin its protection and should and does control the authority to which the selection is committed. In other words, it would seem that the selection of the beneficiaries of a mere privilege, not involving a matter of right, may be committed to the discretion of a body created for that purpose, and so, without impinging upon any vested right of one who desired to enjoy the privilege, or, from Avhom it was, in the discretion of the body, withdrawn. Whether the principles which many courts have approved with respect to the regulation of the conduct of businesses — more innocent in very nature than, and of a different category from, the traffic in intoxicants^ — are applicable to the authorized traffic in intoxicants in such sort as to furnish relief against, or to forbid in enactment, the investment of a board with a pure discretion in the selection of those who may enjoy the privilege, is a question of interest and may, upon another occasion, become important. The principles involved, though not therein applied to the traffic in intoxicants, may be found stated in Lieberman v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305, and cases cited therein. See, contra, Noel v. People, 187 Ill. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238. We merely moot this question.

In section 8 of the Smith Bill it is provided: “It shall be the duty of said commission to order the issuance of licenses to all applicants who possess the requisite qualifications hereinafter provided by law, for the manufacture or sale of spirituous, vinous and malt liquors, not exceeding as to retail licenses the number herein provided for in each city or town, and the authority to order the issuance of licenses shall be vested exclusively in said commission,” By section 9 the qualifications mentioned in section 8 are provided in this way:, That the applicant shall present to the commission a. recommendation in writing, signed by 20 householders and freeholders who are qualified voters of the city or town in which the applicant proposes to engage in the sale or manufacture, stating that they know the applicant; that he is of good moral character; that he has. been a resident of Alabama for six months preceding;, that he is in all respects a proper person to be licensed;. among other things. Where there is application to# transfer a license (section 15) already issued, the transferee shall have the qualifications before indicated. Section 15 also makes provision for a contest of a proposed transfer of person, or place, of the license, and commits the determination thereof to the judgment of the commission.

It cannot, will not, be presumed that the officers or body charged as excise commissioners and the excise commission are, by the charter of their creation, will refuse to administer the law, or by subterfuge will under-' take to defeat the operation of the laAV.—Lieberman v. Van De Carr, supra. If, in fact, that condition, never to be anticipated, later appears, the fault could only be in the personnel of the officers, not in the laAV.

The Legislature cannot delegate its power to make,, alter, or suspend a laAV. This is the sound and Avell-nigb. universally accepted doctrine embracing a vital distinction with respect to the oft-recurring question Avhether there has been, in a given instance, an unwarranted delegation of legislative poAver: “The true distinction, therefore, is betAveen the delegation of poAver to make the law, Avhich necessarily involves a discretion as to Avhat it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the laAV. The first cannot be done; to the latter no valid objection can be made.” —Railroad Co. v. Commissioners, 1 Ohio St. 77, 88. It is supported by these, among other adjudications: Port Royal Mining Co. v. Hagood, 30 S. C. 525, 9 S. E. 686, 3 L .R. A. 841; State v. Thompson, 160 Mo. 333, 60 S. W. 1077; 54 L. R. A. 950, 83 Am. St. Rep. 468; Dastervignes v. United States, 122 Fed. 33, 58 C. C. A. 346; Isenhour v. State, 157 Ind. 521, 62 N. E. 40, 87 Am. St. Rep. 228; Locke’s Appeal, 72 Pa. 491, 13 Am. Rep. 716; Lieberman v. Van De Carr, supra; State v. Barringer, 110 N. C 525, 14 S. E. 781.

■ A discretion of selection may be vested in am administrative body, as is here done, to promote or effectuate the execution of the law; and such a body is, as was held in principle in Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782, only a legislative agent, an administrative instrument. In that case the Legislature committed to the Governor the powers to make rules governing the conversion of grain into distilled liquors. The act was assailed on the ground of unwarranted delegation of legislative power. The response was that the Governor was constituted an agent to effect the legislative purpose; that the act in that particular was valid. The principle illustrated there applies here. The excise commission is an administrative instrument — a legislative agent — to which no power of legislation but only of administration is committed.

We think this disposes of every question raised and argued for appellant that could by any possibility affect the valid existence vel non of the offices held by respondents or the body which, when assembled, they constitute. They are resolved, as appears, in favor of the validity of the acts assailed.

At an earlier point in the opinion we alluded to the established practice and rule to decline the decision of constitutional questions that would not, however decided, determine the appeal. In section 38 of the Smith Bill it is provided: “That if any section or provision of this act be held void or unconstitutional, it shall not affect or destroy the validity or constitutionality of any other section or provision hereof which is not of itself void or unconstitutional.” The Constitution of 1901 contáins, at section 196, similar provisions with respect to the article entitled “Suffrage and Elections.” Of what effect are the provisions of section 38? An enactment may be valid in part and invalid in part, and the general rule is that, if the valid and invalid parts are independent of each other, separable, and the valid competent to stand without the invalid, leaving an enactment sensible and capable of being executed, the valid parts will survive and the invalid will be stricken.—Powell v. State, 69 Ala. 10; Doe ex dem. Davis v. Minge, 56 Ala. 121; State v. Davis, 130 Ala. 148, 30 South. 344, 89 Am. St. Rep. 23; 36 Cyc. pp. 976-978. It is also to be said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid Avould cause results not contemplated or intended by the lawmakers, or Avhere that invalid is the consideration or inducement of the whole act, or Avhere the valid parts are ineffective and unenforceable in themselves, according to the legislative intent. — Author, supra. ^

It is of course not within legislative competency to bind the courts by any declaration or pronouncement in their unfettered functions of determining the constitutional validity of enactments. Yet Ave do not doubt that it is Avithin legislative competency to remove, by express assertion in the act, any uncertainty, in the judicial mind, as to what the Legislature Avould have done in respect of the adoption of the act, Avith the invalid parts thereof stricken, before passage, therefrom. Whether, after accepting such legislative assertion that it Avould have passed the act Avith the invalid stricken, that remaining is valid, surviving the operation of the cutting-off of the invalid, Ave think Avould still be a question of sepa rabil ity, of vigor, and effectiveness to stand without the aid of that so stricken, etc., within the rule and limitations before stated in those particulars. In short, such an expression in an enactment serves only to render certain the legislative intent with respect to passage of the valid parts, notwithstanding the invalid, and does not avail to clothe the valid with immunity from the invalidating effect the laAV gives the inseparable blending of the bad AAdth the good. If the expression were given other or greater effect, the result Avould be to sanction legislative restraint of the judicial power in the performance of the unimpairable duty of interpreting and of enforcing, Avhen properly invoked to do so, the mandates and requirements of the Constitution.

The bases for the propositions to folloAv, pressed in briefs for appellant, fall within the category in mind— the provisions thus assailed being .Avholly separable from, independent of, the valid parts of the legislation— and, if these are invalid for any reason (a matter we do not affirm or intimate in' any degree), their striking down Avould not affect the provisions creative of the offices in question or of the body Avhich the incumbents compose. They are these: That section 28 of the Smith Bill is invalid for uncertainty; that it discriminates betAveen distillers and breAvers; that the rights or privileges conferred upon distillers and breAvers are not Avithin the title of the act; that section 27 is void; and that section 12 is void.

Our conclusion is that the Parks and Smith Bills are not subject to the objections urged for appellant, and Avliich Ave have considered and decided on this appeal. This conclusion coincides AAdth that reached and pronounced by the trial court, with the exception that he ruled section 10% of the Parks Bill to be invalid and so struck it from the act. Our vienv is that section 10% is not invalid, but that it is a valid part of that act.

Accordingly the judgment appealed from is affirmed.

Affirmed.

All the Justices concur.

Case Details

Case Name: State ex rel. Crumpton v. Montgomery

Court Name: Supreme Court of Alabama

Date Published: May 9, 1912

Citation: 59 So. 294

Court Abbreviation: Ala.