State ex rel. Church v. Yeats , 74 Fla. 509 ( 1917 )

Petitioner;

Wills, Circuit Judge

This is a proceeding by mandamus by the petitioner to compel the respondents as County Commissioners of Hillsborough County to grant him a permit to sell intoxicating liquors and wines in Election District No. 13 in said county. The petition and alternative writ sets out a full compliance with all laws prior to the enactment of Chapter 7290 of the Laws of Florida, 1917, entitled “An Act Amending Sections 1219 and 1220 of the General Statutes of Florida, Relating to Requisites of Application for Permit to Sell Liquors, Wines or Beers, and the Publication Thereof, and Repealing Sections 1222, 1223 and 1224 of the General Statutes of Florida, and Providing for Remonstrance to Petitions,” and that there had been no election held in Hillsborough County by which the sale of liquors, wines and beer had been prohibited.

To this the respondents filed a demurrer and motion to quash upon the grounds:

1. The writ does not show the petitioner is entitled to any relief against them.

2. The writ shows on its face the petitioner has not complied with the law entitling him to the relief sought.

3 The writ shows the petitioner has not complied with Chapter 7290 General Laws of the State of Florida.

Upon a hearing of the demurrer and motion the Circuit Judge sustained each and entered judgment, and petitioner took writ of error.

The petitioner assails Chapter 7290 of the Laws of the State of Florida upon two grounds:

1. That Sections 1222, 1223 and 1224 of the General Statutes are not repealed by Chapter 7290, because Section 3 of said Act reads as follows: all laws or parts of laws in conflict herewith, including Sections 1222, 1223 and 1224 are hereby repealed.

2. That Chapter 7290 is violative of Article 19 of the Constitution of Florida.

While the title to an act cannot add to or enlarge the operation or effect of a statute, it may be looked to for aid in the construction of a statute and while after the numbers of the sections in the body of the act we do not find the “of the General Statutes,” we do find after the numbered sections in the title the quoted words.

Also we find in Sections (1) and Two (2) of this statute that other sections of the General Statutes were amended and these sections are followed by the words “of the General Statutes.” From this contest.we think that it is clear-that Sections 1222, 1223 and 1224 of the General Statutes was meant and no one could have been misled by the omission of the words “of the General Statutes',” especially in view of the language of the entire section that all laws or parts of laws in conflict herewith, including Sections 1222, 1223 and 1224 are hereby repealed, there can be no doubt of the legislative intent.

The second contention is. that Chapter 7290 violates Article 19 of the Constitution of this State. “Courts may enquire only into the power of the legislature to lawfully enact a particular statute and all doubts as to its constitutionality are resolved in favor of the statute.” Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 South. Rep. 282. It does not follow however that in every case the courts before they can set aside a law as invalid must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed. Cooley’s Const. Lim. (7th ed.) 242. Says the court in Sill v. Corning, 15 N. Y. 297, text 303, quoted in Cooley’s Constitutional Limitations, page 242: “The lawmaking power of the State, it is said in one case, recognizes no> restraints, and is bound by none except such as are imposed by the Constitution. That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication.”

The implied restraints of the constitution upon legislative power may be as effectual in its (the statutes) condemnation as written words, and such restraints may be found in either the language employed or in the evident purpose which was in view, and the circumstances and historical events which led to the enactment of the particular provision as a part of the organic law. Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. Rep. 15.

When the constitution prescribes the manner in which a thing shall be done or a fact ascertained by implication it prohibits the legislature from by statute providing a different manner — the one prescribed in the constitution Is exclusive of all other modes.

Our Constitution, Article XIX, Sec. 1, provides that “the Board of County Commisisoners of each county in the State not oftener than once every two years upon the application of one-fourth of the registered voters of any county shall call and provide for an election * * * to decide whether the sale of intoxicating liquors, wines or beer shall be prohibited therein the question to be determined by a majoi’ity vote of those voting at the election * * Provided that intoxicating liquors, spirituous, vinous or malt shall hot be sold in any election district in which a majority vote was cast against the same at said election.”

Prior to the adoption of Article XIX the legislature was unlimited in its power to deal with the sale of intoxicating liquors — even to the -absolute prohibition of the sale, but by the adoption of Article XIX the people of the several counties and election districts are to determine the question whether the sale of such lisuors shall be prohibited, and in that article have provided the manner in which the wishes of the county can be obtained “by a majority vote of those voting at the election called under this section.”

This court in the case of State ex rel. Mira v. Smith, 26 Fla. 427, 7 South. Rep. 848, said: “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.”

We think under Article XIX and the construction placed on it in case of State ex rel. Mira v. Smith, supra, the constitution by Article XIX provides the manner by “election called” as provided in said article and by whom to be determined the “registered voters.”

The legislature by the provisions of Chapter 7290 by requiring “a majority' of the white registered voters” and “a majority of the colored registered voters” to sign the application for permit to sell intoxicating liquors, thus in effect making these separate majorities decide the wishes of the people of the county instead of the registered voters voting as provided by the constitution.

We are mindful of the language of this court in the case of State ex rel. Mira v. Smith, supra, wherein speaking of an application being required to be signed by a majority of the registered voters said: “in effect the certificate of a majority of the registered voters of the district that he is personally fit to be instrusted with the business of a liquor dealer” we can readily see that this regulation did not conflict with, but was perfectly consistent with the provision of the constitution in providing the issue should be decided by a majority of the registered voters.

The legislature unless restrained by some constitutional authority establishes the public policy of the State, and the courts ordinarily will not interfere with its discretion, but when it seeks to regulate by statute the provisions of organic law-it then becomes a judicial question, and the courts will when such a statute is assailed determine whether such a statute is a reasonable exercise of the police power under the provisions of the constitution, and if the court determines that such statute defeats the purpose of the constitution, declare it invalid and unconstitutional.

Article NIX leaves the determination of its enforcement to the registered voters of the counties and election districts irrespective of race or color to be determined by a majority of the aggregate; the statute requires two majorities, one of the white and the other the colored registered voters, and in this it clearly defeats the purpose of the constitution in Local Option Article which this court has said was to remit to the registered voters of each county the settlement of the issue whether the sale of intoxicating wines or beer should be prohibited within the county.

The legislature is not permitted under the exercise of the police power to enact a statute that will in its operation defeat the purpose of a provision of the constitution.

As Section One of Chapter 7290 Laws of 1917 is inseparably connected with the remaining portions of the act, the entire act is deemed to be invalid.

The judgment should be revedsed.

Browne, C. J., and Taylor and Ellis, J. J., concur. Whitfield, J., dissents. .West, J., disqualified. -