Citation Numbers： 80 Fla. 98
Judges： Browne, Ellis, Ennis, Taylor, West, Whitfield
Filed Date： 8/21/1919
Status： Precedential
Modified Date： 9/22/2021
(after stating the facts) :
There is a preliminary contention that the amendment to Article XIX of the State Constitution proposed by the legislature in 1917, and adopted at the polls November 5, 1918, to “go into effect” January 1, 1919, is invalid because it was not proposed,, submitted and ratified in accordance with Article XVII of the State Constitution, in that the legislature in proposing the amendment to Article XIX did not “determine upon the submission of the amendment to the people for ratification or rejection.”
The Constitution requires that proposed amendments to the Constitution by the legislature shall “be agreed to by three-fifths of all the members elected to each house,” that “such proposed amendments shall be entered upon their respective journals with the yeas and nays,” and that “the same shall be submitted to the electors of the State, for approval or rejection.”
In ex parte Francis, 76 Fla. 304, 79 South. Rep. 753, it was held that in providing for prohibitions of the sale of intoxicating liquors in counties by local option elections, original Article XIX of the Constitution by implication restrained the police power of the State and forbad legislation regulating the possession and the transportation of such liquors in counties where the sale thereof teas unlawful. But this construction was not put upon amended Article XIX which forbids the nvanufactwe, sale, barter or exchange of intoxicating liquors; and the statute now considered insofar as it regulates the possession of intoxicating liquors, was sustained as a valid exercise of the police power, though the validity of the statute with reference to the time of its enactment was
It is contended that the statute is void because it was passed, while original Article XIX was in force, though the statute did not take effect or become operative until original Article XIX had been superseded by amended Article XIX, with which amended article the statute does not conflict.
Those who assert the uneonstitutionality of a statute have the burden of showing that beyond' all reasonable doubt the statute inevitably conflicts with some designated provision of the Constitution. 12 C. J. 797; Peninsular Casualty Co. v. State, 68 Fla. 411; 67 South. Rep. 165; State ex rel. Simpson v. Ackerly, 69 Fla. 23, 67 South. Rep. 232; State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 South. Rep. 367; City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769; Pinellas Park Drainage Dist. v. Kessler, 69 Fla. 558, 68 South Rep. 668; Lainhart v. Catts, 73 Fla. 735, 75 South. Rep. 47; Anderson v. City of Ocala, 67 Fla. 204, 64 South. Rep. 775; ex parte Pricha, 70 Fla. 265, 70 South. Rep. 406; County Com’rs of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 South. Rep. 398; Lindsley v. National Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. Rep. 337.
A statute cannot be judicially ■ declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it can be specifically pointed to. Cleveland v. City of Watertown, 222 N. Y. 159, 118 N. E. Rep. 500; Wooten v. State, 24 Fla. 335, text 345, 5 South. Rep. 39; 120 N. E. Rep. 19.
The State Legislature has plenary law-making power subject only to the limitations imposed by the State and Federal Constitutions, and may enact any anticipatory statutes that are not forbidden by such Constitutions. The State Constitution expressly provides for the enactment of statutes to take effect after their passage and approval and after the final adjournment of the session of the Legislature at which they were enacted. Anticipatory statutes are not forbidden; nor are they contrary to the letter or to the spirit of the State Constitution; but the enactment of statutes to take effect at times subsequent to their enactment is expressly contemplated by the Constitution. Under Section 18'of Article III of the State Constitution, if this statute had not expressly provided that it should take effect on January 1, 1919, it would not have taken effect until some day in February, 1919, sixty days after the final adjournment of the session of the Legislature at which it was enacted, and until amended Article XIX had been in force more than á month.
If the Legislature had power to enact this statute after amended Article XIX took effect January 1,1919, to make
When Chapter 7736 was passed and approved December 7, 1918, the amendment to Article XIX of the Constitution had already been adopted November 5, 1918, to take effect January 1, 1919, therefore the cases cited for plaintiff in error in which amendments to the Constitution were adopted after unconstitutional statutes had been passed and made operative, are not authority for holding that the statute here approved December 7, 1918, to take effect January 1, 1919, is void because in conflict with Article XIX before its amendment, which amendment, though adopted November 5, 1918, did not take effect till January 1, 1919. The Constitution did not forhid the passage of statutes of this character as it does of certain special or local laws (Sec. 20, Art. Ill); and the Constitution expressly provides that enactments may he-
The. statute did not take effect and was not in force at any time while original Article XIX was a part of. the organic law. That is the. difference between this case and others cited in argument. The validity of the statute is to be determined by the organic provisions in force at the time the statute took effect or becamie ^operative, and not at the time of its passage; and as the amendment to Article XIX became effective and operative concurrently with the statute, the provisions of original Article XIX do not affect the validity of the statute. The status of this statute is as though it had been enacted, approved and made effective or operative January 1, 1919, the day amended Article XIX took effect, entirely superseding original Article XIX of the Constitution. Conflicts between a statute and organic law do not arise until the statute becomes operative. Sammes v. Bennett, 32 Fla. 458, 460, 56 Fla. 107; 64 Fla. 154; 53 Fla. 647; 1 Mich. 369; 159 N. Y. 118.
As the amendment to Article XIX had been adopted by the electors of the State November 5, 1918, to take effect January. 1, 1919, it was inevitable that it would be effective at that time; and as the amendment required the enactment of “suitable laws” for its enforcement, and as the regular session of the Legislature would not under the Constitution convene till April, 1919, it was within the law-making power of the Legislature at the extra session in December, 1918, to enact “suitable laws” to enforce the provisions of Article XIX as amended when it took effect January 1, 1919. The statute here assailed approved December 7, 1918, is a suitable law to enforce the
The Constitution vests the general law-making power of the State in the Legislature, and expressly authorizes the enactment of laws to take effect or to become operative at a time subsequent to their enactment and approval. Sec. 18, Art. III. See also Barbour v. State, 249 U. S. 454, 39 Sup. Ct. Rep. 316.
This is not a case where a subsequently adopted amendment to a Constitution is ineffectual to give validity to a previously enacted void statute which purported to take effect before the Constitution is amended and is not referred to in or validated by the amendment to the Constitution (See 12 C. J. 727); but it is a case where a constitutional amendment had been duly adopted by the electors of the State to take effect inevitably at a future fixed date, and between the adoption of the amendment to the Constitution by the electors and the date it became effective to entirely supersede the former Article XIX of the Constitution, the Legislature without violating any provision of the Constitution enacted a suitable law to enforce the provisions of the amendment to the Constitution, the laws to take effect concurrently with the amendment to the Constitution. See Correllis v. State,
In this case the amendment to Article XIX contemplated the enactment of regulations to- enforce its pro1visions when the Article became effective, and the passage of such regulations before the organic amendment took effect,, the enactment to take effect concurrently with the organic amendment, does not render the statute void, even though it may have been in conflict with the original Article XIX, if the statute had been made effective or operative before the amendment to Article XIX took effect.
In Reade v. City of Durham, 173 N. C. 668, 92 S. E. Rep. 712, the statute was sustained because it was passed iand became effective before the constitutional amendment became operative under which amendment the statute would have been invalid. The statute took effect the day it was passed.
In Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 South. Rep. 867, the amendment to the Constitution had not been adopted when the statute was passed and it teas held■ that the constitution forbad the passage of the statute at the time it was enacted.
The recently adopted amendment to the Federal Constitution, known as Article XVIII, which is to take effect January 16th, 1920, prohibiting the manufacture, sale or transportation of intoxicating liquors in the United
Amended Article XIX of the Florida Constitution is not an added Article. It is a substituted Article to take the place of original Article XIX of the Constitution. This substitution took effect January 1,1919, by the terms of the amended Article itself. See Correllis v. State, 78 Fla. 44 82 South. Rep. 601.
Even though original Article XIX was in effect as organic law until January 1, 1919, yet it did not limit the power or the duty of the legislature in December, 1918, to enact anticipatory statutes to enforce amended Article XIX that had' already been adopted at the polls in November, 1918, to take effect January 1, 1919. Original Article XIX was a limitation upon the law-making power of the legislature only as to prohibitions of the sale of intoxicating liquors. Its provisions were not a limitation upon the power of the legislature to enact anticipatory statutes to meet the requirements of an amendment to Article XIX that had been adopted to inevitably become a substitute for original Article XIX; and the statute here considered, which by its express terms took effect January 1, 1919, was not in conflict with original Article XIX, since the statute was not operative at any time when original Article XIX was in force.
The added Article XVIII of the Federal Constitution is a grant of lawmaking power to the Congress, without
Constitutional provisions are designed to effectuate practical government regulated by law; and they should be so interpreted as to accomplish and not to defeat their purposes or to lessen their efficiency. Article XIX as amended commands legislative enactments to enforce its provisions; and to hold that though the amended Article had been duly adopted by the people to take effect later, the commanded regulations could not legally be enacted, until af%er the amendment became effective, when the provisions of organic law do not require such a holding, and when the legislature had full power to enact such laws independently of the organic command, would make the courts administrators of technical formulae developed by construction, to the sacrifice of substance and to the disregard of the manifest intent and purpose of organic provisions as adopted by the people of the State, thereby rendering government impotent to effectuate its own purposes as expressed by the people whose government it is,
The guarantees of life, liberty and property contained in the Constitution are not absolute. All private rights are enjoyed by individuals as members of the public constituting organized society; and such rights are subject to the paramount right of the State to modify them to conserve the public welfare for sahis populi est suprema Tex. See 70 N. J. Eq. 895, 65 Atl. Rep. 489, 14 L. R. A. (N. S.) 197; 10 Ann. Cas. 116, 118 A. S. R. 754; 12 C. J. 948. Restrictions upon private rights are compensated for by the individuals sharing in the general benefits accruing from the regulations limiting private rights. Gardner v. Michigan, 199 U. S. 325.
The possession of intoxicating liquors may be regulated as a means of preventing the un1 awful acquisition of it. Crane v. Campbell, Sheriff, 245 U. S. 304, 38 Sup. Ct. Rep. 98; United States v. Hill, 248 U. S. 420, 39 Sup. Ct. Rep. 143; Gray v. Kimball, 42 Maine 299.
The constitutional right to acquire, possess and protect property relates to -such subjects of property as persons may acquire and have in possession under lawful regulations to conserve the general welfare; and such regulations may limit the subjects of property as to kind
By forbidding the manufacture., sale, barter or exchange of intoxicating liquors and beverages, and by commanding the legislature to enact suitable laws to enforce the prohibitions, the Constitution not only does not forbid statutory regulations of the possession of such liquors, but it contemplates their enactment as being suitable to enforce the prescribed prohibitions. Marasso v. VanFelt, 77 Fla. 432, 81 South. Rep. 529; 245 U. S. 304.
The plaintiff in error has not shown beyond reasonable doubt that the statute under Avhich he Avas convicted A’iolates some designated provision of the Constitution, and the order remanding him to custody should be affirmed.
It is conceded that if Chapter 7736, Luavs of 1918, had been intended to go into effect before January 1st, 1919, the Act would have been void because of the existence of Article XIX of the Constitution of 1885, which inhibited the legislature from enacting prohibitory legislation as to the sale of intoxicating liquors. See ex parte Prieha, 70 Fla. 265.
An amendment to the Constitution granting power to the legislature by removing a limitation does not' have a retroactive effect and give life to a void act of the legislature, which passed that body when the limitation or inhibition rested upon it. See Cooley Const. Lim. supra,.
If, however, the amendment to Article XIX, which was adopted in November, 1918, became upon its adoption a part of the Constitution, then the legislature which assembled under the new Constitution, that is to say, the Constitution as amended, derived its powers from
Section 1 of Article XVII of the Constitution provides that: “If a majority of the electors voting upon the amendments at such election shall adopt the amendment the same shall become a part of the Constitution.” This clause has been construed to mean that immediately upon the adoption of an amendment it became operative. See Advisory Opinion, 34 Fla. 500.
Other courts have so construed similar provisions of the Constitutions of other States.
There was no proposition to amend Article XVII. An implied repeal or amendment of the Constitution is not favored. The old and the new provisions of the organic law should stand and operate together if it can be done without contravening the intent of the law-making power (the people) as expressed in the latter provision. See Board Public Instruction Polk County v. County Commrs. Polk County, 58 Fla. 391; Mugge v. Warnell Lumber & Veneer Co., 58 Fla. 318.
To maintain either position is to assert that the phrase “shall go into effect” is synonymous with the phrase “shall become a part of the Constitution.” But such is not the case because, while the amendment became at its adoption a part of the organic law its inhibition upon the sale of intoxicating liquors became operative at a later date. Section 2 of the amendment which provides that “The Legislature shall enact suitable laws for the enforcement of the provisions of this article” was a command to legislate upon the subject, but it conferred no power. The power to enact suitable laws to enforce the intention of the people as expressed in the amendment became vested in the Legislature upon the amendment becoming a part of the Constitution; that is to say, at its adoption, the limitation being that such legislation should not go into effect before January 1st, 1919.
Mr. Justice Whitfield, following the decision in the ease of Correlis v. State, decided at the June, 1919, term of this court, takes the position that the amendment to Article XIX did not go into effect or become a part of the Constitution until January 1, 1919, but that the Legislature had authority .to pass the Act, notwithstanding the prohibition contained in Art. XIX that was in force prior to January 1, 1919.
Mr. Justice Ellis does not concur in this view. He says, “If the amendment was, not a fart of the Constitution until that date, then the Legislature had no power prior to that date to bring into existence an Act dealing with the subject of the prohibition of the sale of intoxicating liquors and depend upon an amendment to the Constitution to give validity to the Act. The passage through the Legislature of such an Act was without authority. The Legislature had no power to deal with the subject. It was. prohibited by the terms of the Constitution from, doing so. Such an Act would have been void. It would have been nothing more than a blank piece of paper. See Cooley Const. Lim. 188; Mining Co. v. The Secretary of State, 82 Mich. 573.”
So far, I quite concur with Mr. Justice Ellis; but when he contends that the amended Article XIX “became a part of the Constitution when it was adopted” we part company, and I am forced to do so by the decision of this court in the Correlis case, supra..
Mr. Justice Ellis cites the Advisory Opinion to the Governor, 34 Fla. 500, 16 South. Rep. 410, as authority
There can be no controversy about the soundness of that proposition as to amendments generally, but I think it equally uncontrovertible that the Constitution may be so amended as to take any part of it out of the operation of any other part. An amendment that provides that it shall not go into effect until some date subsequent to its adoption by the. vote of the majority of the electors, is a positive constitutional enactment that it shall not become a part of the Constitution immediately upon its adoption.
Such was the decision of this court in the Correlis case. There we said, “This of itself rescued the amendment from the provision of Art. XVII by which amendments to the Constitution become effective upon receiving the approving majority of the votes of the electors.”
This view finds support in the text books and reports. Thus, “The time an amendment becomes operative may be fixed by the Constitution or by the terms of the amendment itself.” 12 Corpus Juris, 721. '(The italics are mine).
In Reade v. City of Durham, — N. C. —, 92 S. E. Rep. 712, the court said, “The time when the amendments should become effective is as much a part of the submission as the amendments themselves. No one contends that if the provision as to the time the amendments should take effect had been submitted as a part of the amendments and voted on by the people it would be operative.”
“The general rule that Constitutions and Constitutional Amendments take effect upon their ratification by the people, unless otherwise provided in the instrument it
•The Ohio Constitution had a provision similar to ours that when an amendment is adopted by the electors it “shall become a part of the Constitution.” A resolution of the Ohio Legislature proposing an amendment to the Constitution provided that if a majority of the electors voting on the amendment should adopt the same, it should become part of the Constitution on and after the first day of January, 1914.
This resolution was not submitted to a vote of the people with the amendment. For that reason it was held that the mere passage by the Legislature of such a resolution could not prevent the operation of the constitutional provision that amendments should become part of the Constitution upon their adoption by the electors; but the court said “The Constitution is positive in its terms and provides that the amendment shall become a part of the Constitution when a majority of the electors voting on the same shall adopt it. The time when an amendment is to become effective can be submitted to the electors, as in the case of the amendments of 1912, wherein it was expressly provided when they should go into effect. * * * There is nothing in the Constitution of this State postponing the operation of an amendment, and it cannot be postponed unless the proposition to postpone is submitted to the electors and is adopted by a majority of those voting thereon.” State ex rel. McNamara v. Campbell, 94 Ohio St. 403, 115 N. E. Rep. 29. This is entirely in accord with our position in the Correlis case.
The terms “a part of,” “be effective,” “take effect,” “be in operation,” “in force” are used interchangeably by text writers and in opinions by Justices of Courts of last re sort, in relation to the effect of constitutional enactments upon legislative action.
Both opinions in this case concede that prior to January 1, 1919, the old Art. XIX was in force as part of the Constitution. This article was an inhibition on the Legislature to enact “actual or practical prohibition” for the entire State. Ex parte Lewinsky, 66 Fla. 324, 63 South. Rep. 577; Ex parte Pricha, 70 Fla. 265, 70 South. Rep. 406. In the Pricha case this court said, “Unquestionably but for the provision contained in Art. XIX of the State Constitution, the Legislature would have the power to prohibit and suppress the traffic in intoxicating liquors.”
Article XIX, as amended, prohibits absolutely the “manufacture, sale, barter or exchange” of intoxicating liquors and beverages.
The original Article XIX placed certain limitations upon the power of the Legislature; the amended article removed them. They were repugnant to each other, and each cannot be a x>art of the Constitution at the same time.
The Legislature was fully cognizant of the provision of See. 1, Art. XYII — and of the decision of this court in the Advisory Opinion to the Governor, supra, when it
The decision of this court in the Correlis case, supra, that was concurred in by all the Justices, seems to me conclusive on this question.
“By the terms of this amendment it was to go into effect on the first day of January, A. D. 1919. This of itself rescued the amendment from- the provision of Article XVII, by which amendment to the Constitution become effective upon receiving the approving majority of the votes of the electors at the election. Criminal Costs Amendment, Advisory Opinion to the Governor, 15 Fla. 735; see also, Basnett v. City of Jacksonville, 19 Fla. 664. In those cases the amendments did not fix a day subsequent to the adoption for the amendment to take effect. 12 C. J. 721; Reade v. City of Durham, supra; Am. & Eng. Ency. Law (2nd ed.) 910.
Article XIX of the State Constitution providing for local option sales of intoxicating liquors remained in force until January 1, 1919, when it was superseded by the amendment to Article XIX forbidding the manufacture, sale, barter or exchange of alcoholic or intoxicating liquors and beverages in this State.”