186 So. 487 | Ala. | 1939
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *334 The quo warranto proceeding is rested upon the theory that the Alabama Alcoholic Beverage Control Act (General Acts, Extra Session 1936-37, page 40) is void as violative of section 93 of our State Constitution, the here material provisions of which read as follows: "The state shall not engage in works of internal improvement, nor lend money or its credit in aid of such; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation."
The courts, in the exercise of their power to annul a statute which contravenes the organic law, have uniformly recognized that the power is a delicate one, and to be used with great caution. And it must be borne in mind also that legislative power is not derived from either the State or Federal Constitution. These are only limitations upon power. Apart from the limitations imposed by these fundamental charters of government, the power of the legislature has no bounds, and is as plenary as that of the British Parliament.
Or to state it differently, all that the legislature is not forbidden to do by the organic law, state or federal, it has full competency to do. And in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a co-ordinate branch of the government. All of which is embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond a reasonable doubt that it is violative of the fundamental law. Gray v. Johnson,
Relator insists that the term "works of internal improvement" employed in section 93 of the Constitution, refers to a broad principle as to the State's engagement in trade and commerce, and not to any particular species of internal improvement, and that the system of State liquor stores established by the Act here in question constitutes a work of internal improvement within the meaning of section 93 of the Constitution thus interpreted. Or, if not within the meaning of that term, that the establishment of State liquor stores is violative of the succeeding phrase "nor shall the state be interested in any private * * * enterprise."
Briefs for the respective parties to this litigation contain interesting and instructive discussions of the causes leading to the inclusion of these provisions in our organic law. It is a regrettable part of the history of our State, and no detailed consideration of those causes need here be given. The unfortunate experience, both as to the banking business and the lending of the State's credit to railroad construction, is well known to all. Relator's brief quotes liberally from Government Experimentations in Business, pages 58-90, by Prof. Warren M. Persons, wherein much detail information on this subject may be found. See, also, Mayor, etc., Wetumpka v. Wetumpka Wharf Co.,
We think it clear enough these experiences resulted in the inhibitions of what is now section 93 of our Constitution. Like reasons motivated the inclusion in our organic law of what is now section 253, Constitution of 1901, prohibiting the State from becoming a stockholder in any bank.
Defendant insists that by reason of these historic facts the words "works of internal improvement" in section 93, supra, should be construed as having reference only to channels of trade and commerce, *335
such as canals, turnpikes, railroads, and the like, citing Shenandoah Lime Co. v. Mann,
But the language of our Constitution is broad and comprehensive. There are no restrictions or limitations, and we are unwilling to so interpret this provision of our Constitution so as to attach such an exception thereto. We are inclined, however, to agree with defendant that these words have reference to improvements of a more or less fixed and permanent character. Ellis v. Common Council,
We think it clear, therefore, that the operation of the State liquor stores would not come within the influence of the term "works of internal improvement."
Defendant further argues that the words, "nor shall the state be interested in any private * * * enterprise," mean merely that the State shall not be interested with individuals, associations or corporations in the operation of a private or corporate enterprise, and was not intended to prevent the State itself from engaging in a private enterprise.
But we think this too narrow a construction of the Constitution, and clearly out of harmony with the motivating cause of the inclusion of this prohibition in our organic law. The interest referred to is a pecuniary interest in any private or corporate enterprise, and this prohibition was, we think inserted in our organic law as a limitation upon the power of the legislature to again place our State in business enterprises and in competition with private individuals or corporations; or to undertake those things which ordinarily might, in human experience, be expected to be undertaken for profit or benefit to private promoters.
And we are of the opinion it is quite broad enough to embrace a business operated solely by the State for trade and traffic.
The sole remaining question, therefore, is whether or not the operation of the State liquor stores, as provided by this Act, is within the influence of this term as used in section 93 of our Constitution.
The numerous authorities noted by relator upon the question at hand have been read and considered with care in the light of the ingenuous argument in his briefs. Among them are the following: Rippe v. Becker,
A discussion of these several authorities would of course extend this opinion to undue length. Suffice it to say that in large part they deal with a character of business in no manner related to the question of intoxicating liquors. We have no quarrel with any of them. A few illustrations will serve the purpose. The Rippe Case, supra, involved the question as to whether or not the construction of a state grain elevator was within the constitutional prohibition against the state engaging in works of internal improvement. The answer was that *336 it was so prohibited. But, at the very outset, the court in the opinion said, 57 N.W. 333: "It seems to us as plain as words can make it — too plain to admit of argument — that the provisions of this act have no relation or reference whatever to the exercise of the police power to regulate the 'grain elevator' business." Accepting this statement for its face value, it is clear enough the holding is of little value on the question before us.
Likewise as to the construction of a street railroad involved in Attorney General v. Pingree, supra.
Relator lays some stress upon State v. Froehlich,
The case of State v. Kelly,
Some of the cited cases deal with businesses rather than internal improvements. That of Lipinski v. Gould,
Hill v. Rae,
Perhaps no more striking illustration of the distinction between such businesses and that of the liquor traffic can be found than that in Cooley's Constitutional Limitations, page 850, which is here worthy of reproduction: "Perhaps there is no instance in which the power of the legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the legislature then steps in, and by an enactment based on general reasons of public utility, annihilates the traffic, destroys altogether *337 the employment, and reduces to a nominal value the property on hand. Even the keeping of that for the purpose of sale becomes a criminal offense; and, without any change whatever in his own conduct or employment, the merchant of yesterday becomes the criminal of today, and the very building in which he lives and conducts the business which to that moment, was lawful becomes the subject of legal proceedings, if the statute shall so declare, and liable to be proceeded against for a forfeiture. A statute which can do this must be justified upon the highest reasons of public benefit; but, whether satisfactory or not, the reasons address themselves exclusively to the legislative wisdom."
Intoxicating liquors are not regarded as one of the ordinary commodities, and it is clear enough no such result, as above depicted, could be permitted to follow as to corn, cotton and other harmless and legitimate products. The argument against the constitutionality of this Act fails to take due account of this distinction, universally recognized, as disclosed by the following succinct statement of the law as found in 15 R.C.L. page 255: "The matter of regulating and restraining the liquor traffic, being referable to the police power — a power that has resided in the states since the beginning of the present system of government, and was not surrendered to the federal government — it is held that the entire business of manufacturing and selling liquor is completely within the control of the state, and is said so to exist as a correlative of the state's duty to support paupers, to protect the community from crime, and to confine and maintain the criminal, since the liquor traffic is one source of pauperism and crime. By virtue of this power the state may regulate the mode and manner and the circumstances under which this traffic may be conducted, and may surround the right to pursue it with such conditions, restrictions, and limitations as the legislature may deem proper, or it may prohibit it entirely. This is now a matter of universal recognition based on a long line of decisions both federal and state."
In Southern Express Co. v. Whittle,
The opinion likewise quotes liberally from the decision of the United States Supreme Court, and the following is taken from Mugler v. Kansas,
" 'The true question presented by these cases, and one which I am not disposed to evade, is whether the states have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. * * * Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health, and morals, must come within the category. * * * It is not necessary, for the sake of justifying the state legislation now under consideration, to array the appalling statistics of misery, pauperism and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the states, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.' * * *
"But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted *338 as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. * * *
"Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirts. There is no justification for holding that the state, under the guise merely of police regulations, is here aiming to deprive the citizen of his constitutional rights; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use ofintoxicating drinks; nor the fact established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country, are, in some degree at least, traceable to this evil. If, therefore, a state deems the absolute prohibition of the manufacture and sale within her limits, of intoxicating liquors, for other than medical, scientific, and mechanical purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the constitution to another department. And so, if, in the judgment of the legislature, the manufacture ofintoxicating liquors for the maker's own use, as a beverage,would tend to cripple, if it did not defeat, the efforts toguard the community against the evils attending the excessiveuse of such liquors, it is not for the courts, upon their viewsas to what is best and safest for the community, to disregardthe legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquorsfor his own use as a beverage were recognized. Such a rightdoes not inhere in citizenship. Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or property when it determines that the manufacture and sale of intoxicating drinks, for general orindividual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare."
All the authorities agree that it is the peculiar function of the lawmakers to ascertain and determine when the welfare of the people requires the exercise of the State's police powers, and what are appropriate measures to that end, subject only to the power of the courts to adjudge whether any particular law is an invasion of rights secured by the Constitution.
These same principles were set forth in Sheppard v. Dowling,
True, a definite announcement upon section 54, supra, was not necessary under the facts of that case, but the Court was answering the argument in relation thereto, and the mind of the Court was directed to that very question, which is further evidenced by the citation of State v. Aiken,
But the question was again before the Court in Equitable Loan Security Company v. Town of Edwardsville,
"We think it is well settled that the Legislature, in dealing with the sale of intoxicating liquors, is fulfilling a public duty; that it is striving to promote the health, safety, and morals of the community; that in the establishment of the dispensary it constitutes a public object, use, or purpose in the promotion of which public money may be lawfully invested and expended.
"When the Legislature determined that the traffic should be regulated by the establishment of dispensaries, and conferred on municipalities the charter power to carry on dispensaries for the sale of intoxicating liquors, and the dispensary was established by the town, we think the town in carrying on the dispensary would be in the exercise of a governmental function, the primary purpose of which should be and would be to so regulate the sale and use of ardent spirits in the community as to promote the health, safety, and morals of its people. And certainly the public would be interested in an instrumentality that in its operation would tend to the accomplishment of such an object. Mitchell v. State, 134 Ala. [392], on page 408, 32 So. 687.
"We have seen that the liquors supplied by the town to the dispensary were necessary for the carrying on of the dispensary, and that the dispensary was a public or municipal concern — a governmental function. It would seem to follow, therefore, that the stock of liquors would be held in trust by the municipality for use in which the public is concerned, its welfare promoted, and the functions of government discharged."
Nor need we stop to inquire whether these expressions were absolutely essential to the decision, as the court evidently reapproved the language of Sheppard v. Dowling, supra, and the principles of law therein announced, which we consider too well established to be now questioned.
The case of State v. Aiken,
In Mitchell v. State,
Acts of similar character to that here involved have been upheld as in the proper exercise of the police power. "It is generally held that where the state prohibits the sale of intoxicating liquors by private individuals or corporations, and itself engages in the distribution thereof, the regulation of the sale thereof is admittedly within the police power." State v. Andre,
The Supreme Court of Pennsylvania in Commonwealth v. Stofchek,
As to the police power this Court has very recently (Franklin v. State,
The exercise of the police power is a governmental function. It is a power that cannot be alienated or surrendered by the legislature. Alabama Water Co. v. City of Attalla.
This Court in Southern Express Co. v. Whittle,
In the Shenandoah Lime Co. Case, supra, the court was dealing with a constitutional prohibition against the State engaging in works of internal improvement. The holding was that the expenditure by the state in establishing machinery and housing for convicts to grind oyster shells and limestone rocks was an exercise of the police power and not within the constitutional prohibitions. In other words, the predominant purpose was for working the convicts, and involved the exercise of a governmental function which was not embraced in the constitutional prohibition.
Like thought was expressed in State v. Froehlich,
The police power has been described as the law of necessity. It is the power of self-protection on the part of the community. 11 Amer.Jur. 978.
It has been said in reference to legislation concerning intoxicating liquors, that the power of the state in this regard is an incident to society's right of self-protection. "It is therefore essentially subject to the police power and has been so regarded for over a century." 15 R.C.L. 254. Its regulation and control is held by all the authorities to be a governmental function based upon the duty of the government to protect the community from crime and the burdens of pauperism. So regarded, when the state itself takes over the traffic, it is as much in the exercise of a governmental function, through the police power, as when it works its convicts on farms purchased and in factories constructed by the state.
As we read the argument, it is conceded that as to regulation, control or prohibition of the liquor traffic, the state is in the exercise of its police power and of its governmental functions, but that when the state establishes its own liquor stores, there is a sudden shift from the police power, and the government is then engaged in a private enterprise. And this is urged, notwithstanding the universally recognized principle that it is the peculiar function of the lawmakers to ascertain and to determine *341 the appropriate measures to be used in the exercise of this undoubted police power. No one has any inherent right to engage in the liquor traffic, and this argument leads to the illogical result that the state may license and delegate to another that which it cannot do itself. Sound reasoning, we submit, justifies no such conclusion.
Police power is inherent in the government, and while it may be set aside by the Constitution, yet in order to find that it has been so set aside the Constitution must plainly so indicate. Relator therefore must rest upon section 93 of our Constitution to find such a result. And yet this section gives not the slightest indication of any such intention.
It follows, therefore, that this police power over the liquor traffic is wholly uninfluenced and unaffected by any constitutional provision. The State as a consequence still possesses the power to its fullest extent and the authorities cited disclose that laws of this character have been uniformly upheld. Indeed, we find none to the contrary.
But relator says that it is a private enterprise because the Supreme Court of the United States so designated it in Ohio v. Helvering,
Time moves on, and government takes account of the measured step of progress for the application of the police powers to meet new public needs. For an illustration we may turn to Dorman v. State,
It is clear enough, therefore, that what was said by the Court in the Helvering and South Carolina Cases, supra, as to a private enterprise can have no bearing here. Those cases as well as Brush v. Commissioners,
The liquor traffic was originally a private enterprise, and the Court merely holds that for the purpose of federal taxation it will so remain. To apply the language of those opinions to a construction of section 93 of our Constitution would be a clear perversion of its meaning, and, in our opinion, entirely unjustified.
We are speaking here of police power, which we have shown is not limited by section 93, Constitution. The Supreme Court of the United States was speaking of the taxing power of the federal government, while at the same time it was recognizing the police power of the state.
Authorities are cited to the effect that a tax can only be imposed for a public purpose, and if for a private purpose would be violative of the federal Constitution as well. This Court recognizes the principle this is an essential limitation of the taxing power. Garland v. Board of Revenue,
Much argument is advanced on the question of profit and loss in the operation of the liquor stores. But as said by the Court in the Town of Edwardsville Case, supra, we must not forget the purpose for which they were established, and any matter of profit or loss is a mere incident. We consider that authority sufficiently answers these suggestions.
It scarcely need be said that the matter of policy is one for the Legislature, and whether wise or unwise is of no concern to the courts. We are called upon to determine the question of legislative power, and that alone.
As to section 35 of the Constitution of 1901, it was expressly held in Southern Express Co. v. Whittle, supra, that it does not restrict the rightful exercise of the police power of the State.
The Act here assailed contains many regulations and restrictions. They are given no discussion by counsel, and have been considered unnecessary to relate here. We have treated the case upon the line of argument employed in briefs, and upon due consideration we are far from being persuaded beyond a reasonable doubt of the invalidity of this Act upon constitutional grounds.
We conclude the trial court correctly ruled in sustaining the Act, and the judgment will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS, BOULDIN, BROWN, and FOSTER, JJ., concur.
Dissenting Opinion
I cannot bring myself into accord with the holding of the majority in this case, as expressed in the foregoing opinion of Mr. Justice GARDNER. My views on the constitutional question here presented are so fixed, and deeply rooted, that I feel impelled to register my dissent.
So far as I know, no man doubts the right of the state, when speaking through its mouth-piece, the Legislature, to legalize and regulate, or to prohibit, by suitable laws, duly and constitutionally adopted, the sale of intoxicating liquors.
But the right to legalize and regulate the sale of intoxicating liquors is one thing, and the right of the state, within present constitutional limitations, to engage in the business of selling such liquors, under the guise of regulation, is quite another and different question.
The writer has always thought, and he still belongs to that school of thought, that the Constitution stands for, and means something in the life of a people and of a state. Especially is this true under a representative government.
Under our system and form of state government, the Constitution is a bridle, a limitation, upon the Legislature. In short, it is the peoples' Magna Charta, reflecting their will, expressed in their own chosen language, and is the supreme law of the state.
The Constitution means what it says and says what it means.
Section 93 of the Constitution reads, so far as here pertinent: "The state shall not engage in works of internal improvement, nor lend money or its credit in aid of such;nor shall the state be interested in any private *343 or corporate enterprise, or lend money or its credit to any individual, association, or corporation."
Plain language, it would seem. In an unbroken line of cases this court has steadfastly held that when a contract, a statute, or constitutional provision, is plain in its meaning, certain in its terms, and free of ambiguity, there is no room for judicial construction, and certainly no justification forjudicial amendment.
The effect of the majority holding in this case is to write into Section 93 of the constitution a provision or exception reading: "Provided that the Legislature may establishthroughout the state, or in any of the counties thereof, liquorstores, where, in the name of the state, and to supply revenuefor the state, spirituous, vinous or malt liquor may be sold atwholesale or retail."
But the majority say, in effect, that this is one of the ways that the state may regulate, for the best interest of the people, the sale of this harmful beverage. That the state may do this under its police power. This argument is plausible, but fundamentally unsound.
There is no man at all conversant with contemporary utterances, who does not know that it was not regulation, butrevenue, which inspired the State Liquor Store legislation.
But back to the police power theory as furnishing support for this legislation. It is everywhere recognized, and nowhere doubted, that the police power of the state cannot extend beyond the limits of the Constitution. It must be exercised within the Constitution. Its north, east, south and west boundaries are the Constitution.
Section 93 of the Constitution is certainly a limitation upon this power, when, by its express terms, the state is prohibited from being "interested in any private or corporateenterprise."
That this legislation cannot be sustained upon the theory of the exercise of the state's police power, I have the very highest authority. I quote the language of the Supreme Court of the United States, in the case of Ohio v. Helvering, Commissioner of Internal Revenue,
My brothers seem to lay much stress upon the case of Sheppard v. Dowling,
In my opinion, the case of Sheppard v. Dowling, Judge, supra, can have nothing more to do with the settlement of the question here involved than did Halley's Comet have to do with bringing about the financial depression of 1929-1933.
I cannot escape the conclusion that the so-called Alabama Beverage Control Act is in purpose, in spirit, and in essence,and was so designed to become, a revenue producing measure solely; and that it was enacted to raise revenue to meet a supposed economic situation. If this is true, the act violates both the spirit and the letter of the Constitution.
The day has never yet come in the history of the people of this state, when the *344 law had to be stifled to meet a supposed pressing financial situation.
It is my opinion that the holding of the majority in this case will ultimately result in bringing about such a situation. Experience teaches that all heights and all depths are reached by successive steps of induction. This court has no power to make a Constitution, and certainly it has no right to destroy one, ordained by the people.
My judgment is, the Alabama Beverage Control Act infringes upon, and is violative of Section 93 of the Constitution of the State of Alabama, and is null and void: that the respondent is not, therefore, in the possession of, nor exercising the functions of, any lawfully existing office, and that a judgment of ouster should be entered in this cause.
I am not unmindful of the fact that a "dissent," or "dissenting opinion" is without efficacy, save to record the individual views of the writer; and that the minority isinarticulate, yet I feel impelled, while I may, to make clear my position on this transcendently important question. I feel that the majority have, by their opinion, either deleted Section 93 from the Constitution, or, even worse, have written into it, by judicial amendment, words never uttered or considered by the framers. In either case, the result, in my judgment, is tragic. No doubt the majority holding will be made the basis for embarking the state upon other enterprises. The end cannot be foretold.
I am regretfully conscious, also, that I stand alone on this question. However, that is no deterrent. Let this dissent be filed along with the majority opinion.
