Marasso v. Van Pelt

Whitfield, J.

— The plaintiff in error was taken into custody by the sheriff on a warrant issued under an informa,ti on which in effect charges in one count that on January 14, 1919, he and two others unlawfully held in their possession more than four quarts of alcoholic liquors each, to-wit, thirty-six gallons, and in a second count tli at on the same day they unlawfully held in their possession more than four quarts of alcoholic beverages each, to-wit, twenty-three gallons of wine. The information is predicated upon a portion of Chapter 7736 Acts of Special Session of 1918.

Marasso sought a discharge from custody in habeas corpus proceedings upon the ground that the statute upon which the information is predicated violates Section 1 of the Declaration of Rights and Article XIX of the Statf Constitution as amended.

The Circuit Judge remanded the petitioner and allowed him a writ of error to this court, which was taken under the statute, Section 2257, General Statutes, 1906, Florida Compiled Laws, 1914.

The constitution contains the following provisions.

“All men are equal before the law, and have certain inajenable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and' obtaining safety.’’

“Section 1. The manufacture, sale, barter or exchange of all alcoholic or intoxicating liquors and beverages, whether spiritual, vinous or malt, are hereby forever prohibited in the State of Florida, except alcohol for medical, scientific or mechanical purposes, and wine for sacramental purposes; the sale of which alcohol and wine for the purposes aforesaid', shall be regulated by law.

“Sec. 2. The Legislature shall enact suitable laws for the enforcement of the provisions of this article.

“Sec. 3. This article shall go into effect on the first day of January, A. D¡., 1919.” Article XIX State Constitution as amended at the election held November 5, 1918. See pages 323 and 324 Volume 1, Laws of 1917. This article qualifies the provisions of Section 1 of the Dclaration of Rights in so far as the provisions of the two may conflict.

Chapter 7736, Laws of Florida, approved December 7, 1918, to become effective January 1,1919, makes 'it unlawful “for any person * * to have in his * * possession, custody or control in this State any alcoholic or intoxicating liquors or beverages, except (that) nothing contained in this Act should be construed to make it unlawful for any person over the age of twenty-one years to possess, have in custody or control, in such person’s bona fide residence, for the personal use of himself or herself, and family, and not to be disposed of to any other person in any way, not exceeding four quarts of distilled alcoholic or intoxicating liquors or beverages and twenty quarts of malt or fermented alcoholic or intoxicating liquors or beverages, either or both.” Punishments are prescribed' for violations of the statute.

It is in effect contended that the quoted provision of the statute violates Article XIX as amended, in that the provision of the article prohibiting the manufacture, sale, barter or exchange of alcoholic or intoxicating liquors and beverages, with stated exceptions, by implication wtihholds from the legislature the power to regulate the possession of such liquors and beverages under the rule of expression unius est exclusio alterms; and that the statote violates the organic right to acquire, possess and protect property secured by Section 1 of the Declaration of Rights.

The principle of the rule contained in the maxim expression uwhis est exelusio alterius can properly be applied only to effectuate the intent of the law-making power. It should never be applied' to defeat the manifest purpose and intent of a provision of law. Article XIX as amended is an exercise of the police power of the State by the people themselves, prohibiting “the manufacture, sale, barter or exchange of all alcoholic or intoxicating liquors and beverages, whether spirituous, vinous or malt, * * * except alcohol for medical, scientific or mechanical pveposes, and wine for sacramental purposes;” and it commands the legislative duties to regulate by law such limited sales of alcohol and wine as are permitted and to “enact suitable laws for the enforcement of the provisions of this article.” As it expressly commands the enactment of suitable laws to enforce its provisions, obviously the article has not “exhausted' the police powers of the State ” in the premises. An express command to exercise one power does not by impliicafr'on abrogate other police powers, particularly when the exercise of the other pc-wers accords with the one commanded. See State v. Kane, 15 R. I. 395, 6 Atl. Rep. 783.

Organic limitations upon the authority of the legislatrre to exercise the police power of the State, in the enactment of statutory regulations of property rights in the interest of the general welfare, should not be implied by invoking the rule of construction easpressio unkis est ea-clusio alterius or otherwise, unless it is necessary to do so in order to effectuate some express provision of the constitution. An implied limitation upon the legislalive power to regulate the possession of intoxicating liquors would tend to defeat rather than to effectuate, the express provisions of Article XIX. The command for the enactment of suitable laws to enforce the Article excludes implied limitations upon the legislative power in the piemises.

Article XIX ordains stated prohibitions and permits stated sales with express commands for legislative action to enforce the Article. The statute prescribes no prohibitions, but enacts regulations suitable to enforce the organic prohibitions as expressly commanded by the Article itself. Therefore, the rule, expressio unius est exolusio alterius is not applicable, and the courts should not by construction imply a limitation upon the legislative power of regulation where manifestly none was intended. See State v. Weiss, 84 Kan. 165, 113 Pac. Rep. 388, 36 L. R. A. (N. S.) 73; State v. Durien, 70 Kan. 13, 80 Pac. Rep. 987, 15 L. R. A. (N. S.) 925. A contrary decision in State v. Gilman, 33 W. Va. 146, 10 S. E. Rep. 283, has been qualified and explained in State v. Sixo, 77 W. Va. 243, 87 S. E. Rep. 267. See also State v. Tincher, 81 W. Va. 441, 94 S. E. Rep. 503; Pine v. Com. — Va. —, 93 S. E. Rep. 652.

The sovereign police power of the State extends to all matters that affect the individual and collective welfare of the people; and being universal, it is potentially applicable to all the environments and' activities of human life in the family home as well as in the business and public places. The manner and extent of the exertion of the soveieign power of the State are determined and regulated by constitutional provisions and by legislative enactments not in conflict with organic law. The exercise of the police power necessarily curtails the free use and enjoyment of personal and property rights; hut this is essential in regulations to conserve and promote the general welfare; and reasonable and appropriate exertions of the police power do not violate personal or property rights secured by the constitution, such rights being subject to the fair exercise of the police power of the State. This principle is consistent with Section 1, Declaration of Rights above quoted. The exercise of the police power of the State cannot be stayed by the acquisition of property that is subject to such power. Barbour v. Georgia, U. S. Supreme Court, April 14, 1919.

Statutory regulations under the police power of the State, whether affecting persons or property, or both, are vitally essential to the efficiency of sovereign government; and, when duly enacted, such regulations should be enforced by the courts unless they inevitably violate some express provision of the Federal or State Constitution; mere questions of policy or wisdom, necessity or expediency are foreclosed to the courts by the enactment of the regulations by the lawmaking power. Noble v. State, 68 Fla. 1, 61, South. Rep. 153; St. Louis &c. v. City, U. S. Sup. Ct., March 24, 1919.

If organic regulations of the sale of intoxicating liquors do not forbid statutory regulations of the serving of .such liquors as was held in Van Pelt, Sheriff v. Hilliard, 75 Fla. 792, 78 South. Rep. 693, then a fortiori organic provisions proMbiting the manufacture, sale, barter or exchange of intoxicating liquors do not forbid statutes regulating the possession of such liquors, particularly when the constitution expressly requires the enactment to enforce the stated prohibitions.

If statutory regulations forbidding the sale of non-intoxicating beverages may aid in preventing the unlawful sale of intoxicating liquors, and are therefore valid under the police power of the State, as was held in Fine v. Moran, 74 Fla. 417, 77 South. Rep. 533, then statutory regulations of the quantity of alcoholic or intoxicating liquors that a person may have in possession certainly should be valid under the express organic command to “enact suitable laws for the enforcement of” Article XIX, and as tending to prevent the unlawful manufacture, sale, barter or exchange of such liquors. See State v. Reno, Nev. —, 178, Pac. Rep. 902.

If a law has a real relation to' the subject of Article XIX as ¡amended, whether it is “suitable” is determined by its enactment, and the courts have no power of review. It is manifest that the provision of the statute regulating the possession of intoxicating liquors is appropriate and suitable to enforce the organic provisions forbidding the manufacture, sale, barter or exchange of intoxicating liquors, since possession may be an incident to unlawful manufacture, sale, barter or exchange; and the regulations of the possession necessarily tend to prevent the unlawful manufacture, sale, barter or exchange of such liquors.

The statute may not be necessary to prevent a vast majority of the people of the State from violating Article XIX, but the legislature obviously regard's it as appropriate to prevent some persons from making unlawful sales, barter or exchange of intoxicating liquors; and, the law must apply generally as do other statutes defining and punishing crimes, the legislature having power to impose penalties for violations of statutory provisions.

It is not essential to the validity of the statute that it should regulate the possessoin of intoxicating liquors only when the possession is with intent to unlawfully manufacture, sell, barter or exchange such liquors, since all suitable laws are contemplated by the organic provisions; ar¡d to limit regulations to possession with intent to violate. Article XIX may render the law ineffectual to enforce the Article, the legislative judgment in this regard not being reviewable. Unlawful or evil intent is not essential to all regulations of personal rights.

Suitable laws to enforce the provisions of Article XIX are expressly required by the constitution. This statute is of that nature and consequently it does not violate, but is in accord with, Article XIX. The rights secured by Section 1, Declaration of Rights are necessarily qualified by Article XIX as amended, each being a part of the organic law, and each relating to personal rights.

Whether the organic provisions securing the right to acquire, possess and portect property, means that such right is not transferable even with the possessor’s consent, or that it may not he taken away without the possessor’s consent, the provision of the statute involved in this case does not violate the secured right since it does not purport to transfer or to take away any “inalienable” right, but in order to enforce the organic law and in conserve the general welfare, the provision merely regulates the right of possession of intoxicating liquors, “the manufacture, sale, barter or exchange” of which is forbidden by the constitution. As the statutory provision enacted pursuant to an organic command reasonably regulates, under the police power, the possession of intoxicating liquors, and as it does not so restrict the possession as to amount to prohibition of possession and' use, it does not violate the organic right to acquire, possess and protect property. See State v. Brooken, 19 N. M. 404, 143 Pac. Rep. 479, L. R. A. 1915B, 213, Ann. Cas. 1916D 136, and authorities cited; Cason v. Florida Power Co., 74 Fla. 1, 70 South. Rep. 535, L. R. A. 1918A 1034; State ex rel. Simpson v. Ackerly, 69 Fla. 23, 67 South. Rep. 232; Dutton Phosphate Co. v Priest, 67 Fla. 370, 65 South. Rep. 282; King Lumber & Mfg. Co. v. Atlantic Coast Line R. Co., 58 Fla. 292, 50 South. Rep. 509; Noble v. State, 68 Fla. 1, 61, South. Rep. 153.

If forbidding absolutely the possession of such liquors in places other than bona fide residences does not violate oganic rights, and serves to enforce commanded prohibition, as appears to be conceded in the briefs for the petitioners, then a statutory restriction of the quantity of such liquors that may be possessed, in bona fide residences is within the power' of the legislature to enact pursuant to the express organic duty to provide “suitable laws to enforce” the organic prohibitions of the manufacture, sale, barter or exchange of such liquors and such regulations do not violate organic property rights. The authority of the lawmaking power extends to residences as well as to other places; and statutory regulations not forbidden by the contitutions are the law of the land not subject to judicial review or approval.

Property rights may not exist in all things that are potentially capable of ownership. The subjects of property may be restricted and rights therein may be qualified, regulated, or prohibited by law. Rights of property in things that affect the general welfart, may by statutes be qualified, regulated, or prohibited, without violating the organic “right of acquiring, possessing and' protecting property,” when the statutes are not arbitrary and oppressive in their nature or operation.

The statutory provision here considered does not destroy or prohibit the right to possess intoxicating liquors, but regulates the possession thereof in accord with the express requirement of the constitution and is an appropriate exercise of the police power of the State, therefore, it does not violate any property right secured by oganic law. In re Crane, 27 Idaho 671, 151 Pac. Rep. 1006, L. R. A. 1918A 942; Crane v. Campbell, 245 U. S. 304, 62 L. Ed. —, 38 Sup. Ct. Rep. 98; Delaney v. Plunkett, 146 Ga. 547, 91 S. E. Rep. 561, L. R. A. 1917D 926; Barbour v. State, 146 Ga. 667, 92 S. E. Rep. 70, affirmed, by United States Supreme Court, April 14th, 1919, State of Utah v. Certain Intoxicating Liquors and Otto Me. ks, — Utah-, 172 Piac. Rep. 1050, L. R. A. 1918E 943; State ex rel. Hermain v. Ross, — N. D. —..., 170 N. W. Rep. 121; Brennen v. Southern Exp. Co.,- S. C. —, 90 S. E. Rep. 402; State v. Carpenter, —..., N. C. —, 92 S. E. Rep. 373; City of Seattle v. Broobins, — Wash. —..., 167 Pac. Rep. 940; State v. Fabbri, — Wash. —..., 167 Pac. Rep. 133; Ex parte Zwissig, — Nev.........., 178 Pac. Rep. 20; State v. Brown, — S. D. —..., 167 N. W. Rep. 400; Pitch v State, — Neb. —-, 167 N. W. Rep. 417; Southern Exp. Co. v. Whittle, 194 Ala. 406, 69 South. Rep, 652, L. R. A. 1916C 278; People v. Blanchard, 174 N. Y. Supp. 276; Glenn v. Southern Exp. Co., 170 N. C. 286, 87 S. E. Rep. 136; State v. Sixo, 77 W. V. 243, 87 S. E. Rep. 267; State v Tincher, supra; Longmire v. State, 75 Tex. Cr. App. 616, 171 S. W. Rep. 1165, Ann. Cas. 1917A 726; Liquor Transportation Cases, —... Tenn. —..., 205 S. W. Rep. 423; Schmitt v. Cook Brewing Co. — Ind. —..., 120 N. E. 19; State v. Macek, — Kans. —..., 180 Pac. Rep. 985.

If the organic rgiht of “enjoying and defending life and liberty,” is subject, as it is undoubtedly is, to statutory regulation even to the infliction of capital punish ment, without a provision of the constitution permitting it, then certainly the right of “acquiring possessing and protecting property,” in intoxicating liquors is subject to statutory regulation, when the constitution itself forbids the manufacture, sale, barter or exchange of such liquors, and mandatorily requires the enactment of suitable laios for the enforcement of the ordained prohibitions-

As the elgislature is commanded by the constitution to “enact suitable laws to enforce” the prohibitions contained in Article XIX, the legislature and not the judiciary determines whether a statute enacted for that purpost is a “suitable law” when it has a real relation to the subject of Article XIX.

The statute involved here, regulating he possession of intoxicating liquors, obviously has a real relation to' the subject and object of Aritcle XIX, therefore, it manifestly is a “suitable law’’ within the command' of the constitution, and being authorized by the constitution it does not violate the organic right to possess property.

• As the provision of the statute here involved merely regulates and does not forbid entirely the possession, of intoxicating liquors, it does not add to the prohibitions defined in the constituion, but only operates to enforce the organic prohibitions as expressly required by Article XIX.

The information does not allege that the liquors were in the possession of the defendants prior to the adoption of Amended Article XIX, or the enactment of Chapter 7736, Acts of 1918, Special Session, or prior to January 1,1919, when Article XIX of the constitution and the statute became effective. Whether that would present 'a material question is not considered here. See Barbour v. State of Georgia, decided by the United States Supreme Court, April 14, 1919. Even if some portions of Chapter 7736, Acts of 1918, Special Session, are unconstitutional, the provision of the statute here involved is not affected thereby, it being the express purpose of the legislature that the valid portions of the statute shall be enforced though other portions be invalid. ■ Sec. 22, Chap. 7736, Acts of 1918, Special Session.

The decisions in Kentucky and other States contrary to the views here expressed are apparently controlled by peculiar restrictive provisions in the constitutions of these States, or as in Alabama, North Carolina, Texas, West Virginia, and- other States have been superseded by the above cited later decisions in those States.

Affirmed.

West, J-, concurs. Ellis, J., concurs in conclusion. Browne, O. J., and Taylor, J.., dissent.