26 Fla. 427 | Fla. | 1890
The eleventh section of the general act for the assessment and collection of revenue, approved March 5, 1883, (Chapter 3413 of the statutes) provided that no person should engage in or manage any business, profession or occupation named therein unless a State license should be procured from the Collector of Revenue, such license to be issued on the payment of the amount specified in the section as to any particular profession or occupation; and the same section authorized counties and incorporated cities and towns to impose an additional license tax upon the same business, occupation or profession, but not to exceed fifty per cent, of the State tax.
The same Legislature passed an act (Chapter 3416) which was approved on the third day of the same month, and is entitled : “An act to regulate the sale of liquors, wines and beer in the State of Florida by the Boards of County Commissioners of the several counties.” Its provisions are: That it shall not be lawful for any person or persons to sell any intoxicating liquors, wines or beer in any election district in any county except upon compliance with the following requirements : Any person wishing to sell the same shall make application to the Board of County Commissioners of the county in which the privilege of sale is desired, at a regular meeting of the board, for a license to sell; such application to be signed by a majority of the registered voters in such election district, as shown by the registration list on file in the office of the Clerk of the Circuit Court at the date of the application; and the applicant to make affidavit that each and every náme or mark affixed to the petition was the act and deed of the party purporting to have signed the same, (which signing must have been in the presence of at least two credible witnesses,) and that there was no fraud, bribery or deception in procuring the signa
In State ex rel. vs. Brown, 19 Fla., 563, decided in 1883, the 5th and 6th sections of the act were held to be void and unauthorized by the Constitution, in so far as they sought to invest the County Commissioners with judicial power to hear and determine a complaint against the holder of a license and to revoke it, as they created a court not authorized by the organic law ; but that in so far as the act required the applicant for a license to produce to the County Commissioners an application signed by a majority of the registered voters in the election district where it was desired to make sale and to otherwise comply with the terms prescribed, it;
In 1885, an amendment, approved February 15th, was made of the above General Revenue Law, but it in no wise affected the liquor provisions of either of the two statutes. Later in the same year, the convention which framed the present Constitution . assembled, which Constitution was ratified by the people in November, A. D. 1886, and went into operation on the first day of January of the following year.
The local option or 19th article of this instrument is to the effect that the Board of County Commissioners of each county in the State shall, not oftener than once in every two years, upon the application of one-fourth of the registered voters of the county, call and provide for an election in the county to decide whether the sale of intoxicating liquors, wines or beer shall be prohibited, therein ; the question to be determined by a majority vote of those voting at the election so called, which election must be held in the manner provided by law for holding general elections. If at any such election a majority of the votes cast in any election district of a county is against the sale of such liquors, they shall not be sold in such district. Such election shall be held within sixty days from the time of the presentation of the application unless thereby it would take place “within sixty days of any State or National election,” in which case it shall be held “within sixty days after any such State or National electionand- the Legislature is directed to provide “necessary laws to carry out and enforce” this article.
The Legislature of 1887 passed an act, (Chapter 3700, approved June 2d, 1887,) for the “enforcement of the pro
This Legislature also passed a General Revenue Act, approved June 13, 1887, which is a revision of the General revenue law of 1883, mentioned at the outset of this opinion, and contains similar provisions to those set out in the first paragraph of this opinion. In this act of 1887, the following language also occurs in Section 9, which section takes the place of Section 11 of the act of 1883 : “Dealers in spirituous, vinous or malt liquors shall pay a license tax of four hundred dollars in each county for each place of business; and dealers paying the same and receiving a license therefor shall be authorized to sell spirituous, vinous and malt liquors, or any of such liquors ; but neither spirit
It is urged by counsel for relator that the above article of the Constitution, repeals, of itself, the act of March .3, 1883, Admitting, expressly, that no election has ever been held under the article to decide whether intoxicating liquors, wines or beer, shall be sold in the county where the relator seeks a license, he contends -that the presence of the article in the Constitution does away with the act. In Butler and Chapman vs. State, 25 Fla., 347; S. C. 6, So. Rep., 67, we held, and as we are still satisfied, correctly, that when this Local Option Article is put in operation in any county or election district by a majority vote, it suspends during the period of its operation, or until there shall be another election changing the status, all statutes regulating the sale of such liquors, wines or beer, in the county or district. In that case we held, specifically, that the General Revenue Law of 1887, in so far as it authorized the licencing and sale of such
The purpose of the Local Option Article was to remit to the registered voters of each county, the settlement of the issue, whether the sale of intoxicating liquors, wines or beer, should be prohibited within the county. It gives to one-fourth of the registered voters of any county the right to require an election to be held once in every two years to test the sentiment of the voters upon this question. The only issue presented by the constitutional provision is whether or not the sale shall be prohibited. Until an election has been held, and a majority of the electors of a county or of some election district thereof have voted against the sale, the prohibitory provisions of the article and the statute enforcing it, are inoperative throughout the county. If the majority of the voters in the county or in any election district thereof, express themselves through their ballots, as in favor of prohibition, the result is that the sale of such liquors, wines and beer, becomes forbidden and illegal until this condition shall be changed by a subsequent election at which a majority shall vote in favor of permitting their sale; or in other words, shall vote against prohibition ; and there can be no subsequent election within two years from the first one, but after two years have elapsed from the time of one election, there may, whatever may have been its result, be another i.f one-fourth of the registered voters of the county shall see fit to apply to the County Commissioners for it. Whenever the article is in force of active
The article is, as to any county or election district in which it is not actually operative through an election resulting in favor of prohibition, not a limitation upon the power of the Legislature further than the rules it prescribes for calling and conducting an election upon the issue of prohibition and the resulting effect given by it to a majority vote in favor of prohibition. It says nothing as to the regulation of the sale of intoxicating liquors, wines or beer, in any county or district where it has not been put in force; in other words, it is not a regulation of the sales of these intoxicants, and was never intended as such, but only as a provision for submitting the issue of prohibition or sale, and declaring the effect of a majority vote in favor of prohibition in a county or election district. As to any locality in which it is not in actual force by virtue of a majority vote, the Legislature is as free to prescribe regulations of the sale, as it would be if no such article or provision was to be found in the Constitution. Of course, the article is no more in force in a county or district where a majority of
The repugnancy necessary to work a repeal by implication is one that is clear and positive; State ex rel. vs. Palmes, supra; and we are satisfied, after the most cáreful consideration, that there is no such repugnancy to be found between the act of March 3, 1883, and the Constitution. The fact that no sale could be made in any election district
The second section of the act for enforcing the prohibition article of the Constitution, is as follows : “ If such county at such an election votes in favor of the sale of such liquors within such county, then any person or persons in any precinct which at said county election voted in favor of the sale of such liquors, paying the proper license tax to
The motion to quash is granted.