Whitley v. State , 134 Ga. 758 ( 1910 )

Lumpkin, J.

1. Article 8, section 1, paragraph 1, of. the constitution (Civil Code, § 5900), declares: “There shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise.” Section 3, paragraph 1, of the same article (Civil Code, § 5908) reads as follows: “The poll-tax, any educational fund now belonging to the State (except the endowment of, nucí debt due to, the University of Georgia), a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess, and the proceeds of any commutation tax for military service, and all taxes that may bo assessed on such domestic; animals as, from their nature and habits, are destructive to other property, arc hereby set apart and devoted for the support of common schools.” It was contended that it was mandatory upon the legislature to assess a specific tax on the sale of spirituous and malt liquors as one means of supporting such' schools, and that this excluded the power of the legislature to prohibit the sale of such liquors.' If the two paragraphs of the constitution quoted be fairly considered, they do not sustain the position. While that first cited declares that there shall he a thorough system of common schools for the education of children in the elementary branches of an English education, it states that the expenses shall be provided for “by taxation, or otherwise.” The second of the sections declares, in effect, that any revenue derived from certain sources shall he set apart and devoted to the support of the common schools. It does not say that the legislature shall impose a tax on the sale of spirituous and malt liquors, hut that it is authorized to do so. Several other items besides this tax are mentioned in the section. But it may well be doubted whether it was tbe intention of the constitution to make a mandatory provision as to them, so that the legislature must provide a commutation tax in lieu of military service, or must assess a tax on certain animals, for instance. In article; 7, section 13, paragraph 1 (Civil Code, g 5900), the proceeds of the sale of the Western and Atlantic Railroad, “whenever the General Assembly may authorize the sale,” an devoted to the payment of the bonded indebtedness of the State;. But nobody would contend for a moment that the constitution intended to require the Western and Atlantic Railroad to he sold. Undoubtedly permissive words, such as “authorize,” or “may,” arc; sometimes construed as mandatory in effect, though permissive in form, as for instance where a statute provides for the doing of some act which is required by justice, or public duty. But where the language employed, together with its context, shows that the constitutional or statutory provision under consideration conferred or recognized a discretionary power, á mandatory construction will not he given to it. In the present case, if a tax were assessed on the; sale of spirituous and malt liquors, there would be no discretion on the part of the legislature as to what should he done with the proceeds. Thej- would he devoted to the support of the common schools. But, construing this provision in the light of its context, and of other provisions of the same instrument, it does not command the legislature to tax the sale of spirituous and malt liquors, and impliedly deny to them the power to prohibit such sale. In paragraph 22, section 7, article 3 of the constitution (Civil Code, 3784), it is declared that “The General Assembly shall have power to make all laws and ordinances consistent with this constitut ion, and not repugnant to the constitution of the United States, which they shall deem necessary and proper for the welfare of the State.” The police power is recognized in this and in other sections of the constitution, notably in paragraph 2, section 2, article 4 (Civil Code, § 5798), where, among other things, it is declared that “The exercise of the police power of the State shall never he abridged, nor so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals, or the general well-being of the State.” The sale of spirituous and malt liquors has from early times been considered as falling peculiarly within the cognizance of the police power of the State. In Perdue v. Ellis, 18 Ga. 586, it was said that “The General Assembly have the right, should the general public good require it, and public opinion demand it, to pass-a law to restrict or even suppress the internal traffic in spirits.” In Howell v. Stale, 71 Ga. 224, 228 (31 Am. R. 259), Hall, J., said: “Undoubtedly lhc legislature had the power to make this inhibition general, and, having this power, it would seem that they might confine it to certain special localities.” In Menken v. City of Atlanta, 78 Ga. 668, 672 (2 S. E. 559), the local option legislation then in force, by which the sale of liquors could he prohibited in counties by popular vote, was held to he constitutional as a valid exercise of the police power. Chief Justice Bleckley said: “If it has not been heretofore sufficiently decided, we decide now that the local option legislation of this State is constitutional as a valid exercise of the police power. Historically considered, there is no subject more completely amenable to this power than the sale of intoxicating liquors.” This decision was rendered after the adoption of the present constitution. In Ison v. Mayor and Council of Griffin, 98 Ga. 623 (25 S. E. 611), it was said that a license to sell spirituous liquors was neither a contract nor a property right in the licensee, but a mere permit to do what would otherwise be an offense against the general law, and when granted by a municipal corporation it was subject at all times to the police power of that corporation; and that, in the absence of any restriction upon its authority, the municipality could revoke such license. In Plumb v. Christie, 103 Ga. 686, 694 (30 S. E. 759, 42 L. R. A. 181), Mr. Justice Lewis said: “No principle is more universally recognized by the courts than the right of a State, under general police powers reserved and granted to its legislature, to control the traffic in any commodity the use of which may endanger either the public health or morals. It is equally well established that the sale of intoxicating liquors is peculiarly, on account of the evil effects resulting from their use, subject to legislative control and regulation. To such an extent can this power be exercised, that an absolute prohibition of the sale of this commodity throughout a State can be accomplished by an act of its legislature, and, among the number of cases reviewing such legislation, our attention has never been called to a single case in a court of last resort where the validity and constitutionality of such an act has not been upheld.” In Henderson v. Heyward, 109 Ga. 373, 376 (34 S. E. 590, 47 L. R. A. 366, 77 Am. St. R. 384), Mr. Justice Cobb said: “That the State has a right to prohibit absolutely the sale of whisky is no longer an open question, either in this court or in the Supreme Court of the United States.”

It is true that in none of these decisions were the paragraphs of the constitution now invoked directly considered; but most of them were rendered after.the adoption of the present constitution, and they all considered the legislature as having the authority to prohibit the sale of spirituous or malt liquors, under the general police power of the State. We hold that the constitutional provisions in regard to the maintenance of a common-school system, and the appropriation of any amounts which might arise from certain sources to its support, did not prevent the legislature from exercising its police power in regard to spirituous or malt liquors, or render the prohibition law of 1907 unconstitutional on that ground.

It was sought to differentiate the local option law and local prohibition laws from the general prohibition law, in respect of the matter now under consideration. But we think the differentiation sought to be made is unsound. Article 3, section 7, paragraph 16 (Civil Code, § 5778), was cited as indicating a difference. That paragraph requires publication of notice of intention to apply for a local or special law prior to the introduction of a bill in the General Assembly. It has no relevancy to the question now before us.

2. By article 1, section 5, paragraph 2, of the constitution, it is declared: “The enumeration of rights herein contained as a part of this constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed.” It was contended that prior to the time when the constitution of 1877 was adopted the people of the State had enjoyed, as an inherent right, the right to make, sell, barter, give away, keep, and furnish any of such liquors, subject only to sundry statutory regulations, and that the intent and effect of the section just quoted was to inhibit the General Assembly from denying such alleged right. The point is without merit. What has been said in the previous division of this opinion answers it. We need only add that in Loeb v. Jennings, 133 Ga. 796 (67 S. E. 101), it was claimed that the prohibition law violated the provision of the constitution of the United States which declares that no State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. In dealing with that contention it was said : “There is no constitutional privilege or immunity in any citizen of this State or of any other State to come within its borders and violate its laws in regard to prohibiting the sale of intoxicating liquors.”

3. Article 3, section 7, paragraph 8, of the constitution (Civil Code, § 5771), provides: “No-law or ordinance shall pass which refers to more than one subject-matter,” etc. It was argued that the act of 1907 was violative of this provision, because it prohibited both the sale and manufacture of various liquors mentioned in it, and that sale and manufacture are two separate and distinct subject-matters. The question of what constitutes duality of subject-matters has been so frequently discussed by this court that it would serve no good purpose to repeat what has been said. Of course selling an article is not identical with its manufacture. Neither is malt liquor identical with distilled liquor. Nor yet is giving away liquor to induce trade the same thing as furnishing it at public places. But all of these things were germane to and formed a part of the general purpose of the act. They were not so entirely distinct and different as to constitute different subject-matters within the meaning of the paragraph of the constitution last-quoted. In 26 Am. & Eng. Enc. Law, 575, occurs this statement: “The word 'subject’ as used in the constitutions is not to be taken as synonymous with 'provision’; an act may properly include any number of provisions so long as they are not inconsistent with or foreign to its general object. This requirement of singleness of subject is not intended to embarrass honest legislation, but only to prevent the vicious practice of joining in one act incongruous and unrelated matters; and if all the parts of a statute have a natural connection and reasonably relate, directly or indirectly, to one general and legitimate subject of legislation, the act is not open to the objection of plurality, no matter how extensively or minutely it deals with the details looking to the accomplishment of the main legislative purpose.”

4. By article 3, section 7, paragraph 14, of the constitution, it is provided that “No bill shall become a law unless it shall have received a majority of the votes of all the members elected to each house of the. General Assembly, and it shall, in every instance, so appear on the journal.” It was urged, that the legislative journals showed that a bill to prohibit the sale of liquors, etc., was introduced into the Senate and was passed by a majority of that body; that this bill was amended by the House of Representatives in a number of material particulars, and as so altered was passed by the House by a vote of a majorit)’- of the members of that body; that it appeared from the journal of the Senate that, after the bill was returned to that body several amendments were offered and rejected ; and that the Senate journal, showing the concurrence in the amendments originating in the House of Representatives and the final action on the bill, did not show that it received the votes of a majority of all the members elected to the Senate. The question thus raised is controlled by the decision in DeLoach v. Newton, ante, 739 (68 S. E. 708). The plea in abatement filed by the defendant, in which he set up this contention, was properly stricken. The accusation was not subject to the objections set out in the questions certified to this court.

All the Justices concur.