Ex Parte Pricha

70 So. 406, 70 Fla. 265

• Court: Supreme Court of Florida
• Decided: November 4, 1915
• Status: Published

Opinions

Shackleford, J.

This is an original proceeding in this court upon a writ of habeas corpus, issued by the Chief Justice returnable to the full court. Adolph Pricha, the petitioner, is in the custody of the sheriff of Duval county, Florida, under a warrant issued by the county judge of such county, charging the petitioner with a violation of Chapter 6860 of the Laws of 1915, which warrant reads as follows:

“In the Name of the State of Florida:

“To the Sheriff or any Constable of said County of

Duval:

“Whereas, James C. Crawford has this day made oath before me that on the first day of October, 1915, in the county of Duval and State of Florida, a county in which liquors, wines and beer are authorized to be sold under the laws and constitution of the State of Florida, Adolph Pricha, who was then and there a dealer in intoxicating liquors, wines and beer, did then and there operate and conduct a bar room or place of business for the selling and retailing of intoxicating liquors, wines and beer at the southeast corner of Bay and Washington streets, in the city of Jacksonville, county of Duval and State of Florida; the said Adolph Pricha did then and there in his said bar room and place of business aforesaid, sell to a certain man, to-wit, Ben Jones, intoxicating liquor in a less quantity than one-half pint, and not contained in a securely sealed receptacle, to-wit, one drink of whiskey in an open glass receptacle not securely sealed, containing' one-fourth of one half a pint of whiskey, contrary to the form of the statute in such case made and provided.

“And the said James C. Crawford on his oath aforesaid, says that on the first day of October, 1915, in the county of Duval and State of Florida, a county in which liquors, wines and beer are authorized to bé sold under the laws and constitution of the State of Florida, Adolph Pricha, who was then and there a dealer in intoxicating liquors, wines and beer, did then and there operate and conduct a barroom or place of business for the selling and retailing of intoxicating liquors', wines and beer at the southeast corner of Bay and Washington streets, in the city of Jacksonville, county of Duval and State of Florida; the said Adolph Pricha did then and there in his said barroom and place of business aforesaid, sell to a certain man, to-wit, Ben Jones, intoxicating liquor in a less quantity than one-half pint, and not contained in a securely sealed receptacle, to-wit, one drink of whiskey in an open glass receptacle not securely sealed, containing one-fourth of one half pint of whiskey, and did permit the said Ben Jones to whom the said drink of whiskey was sold, to drink the same in the barroom and on the premises of the said Adolph Pricha, said liquor being drunk by the permission of the said Adolph Pricha and on the premises on which same was sold, and did fail and neglect and refuse to see that Section 7 of Chapter 6860 of the Laws of Florida was then and there complied with, contrary to- the form of the statute in such case made and provided, and against the peace and dignity of the State of Florida.

“These are therefore to command you to arrest instanter, the said Adolph Pricha, and bring him before me to be dealt with according to law.

“Given under my hand and seal, this first day of October, 1915.”

Chapter 6860 of the Laws of Florida, found on page 125 of Vol. 1 of the Laws of 19x5, is as follows:

“CHAPTER 6860 — (No. 54).

“AN ACT to Regulate the Sale or Furnishing of Intoxicating Liquors, Wines or Beer, and Prescribing a Penalty for the Violation of Certain of its Provisions, and Repealing Laws in Conflict herewith.

“Be it Enacted by the Legislature of the State of Florida:

Section 1. That no intoxicating liquors, wines or beer shall be sold, in counties where the sale of the same is allowed by law, in less quantities than one-half of a pint, and no one shall sell any liquors, wines or beer that are not contained in securely sealed receptacles.

Sec. 2. That no person who is a dealer in intoxicating liquors, wines or beer shall sell or furnish any intoxicating- liquors, wines or beer in any quantity to an habitual drunkard personally known to him, of whose intemperate habits such person has been notified in writing protesting against the selling or furnishing of such intoxicating liquors, wines or beer, by the wife, father, mother, brother or sister of such drunkard.

Sec. 3. That no person who is a dealer in intoxicating liquors, wines or beer, by himself or another, shall sell or cause to be sold or furnished or permit any person in his employ to sell or furnish any minor, female, or any person who is at the time intoxicated or drunk, intoxicating liquor, wine or beer, in any quantity.

Sec. 4. That it shall be unlawful for any person keeping or carrying on, either by himself or another, a place where intoxicating- liquors, wines or beer are sold by retail or wholesale to employ a minor or female in his place of business.

Sec. 5'. That it shall be unlawful for any person to sell intoxicating liquors, wines or beer, between the hours of six o’clock p. m. and seven o’clock a. m.

Sec. 6. That it shall be unlawful for any person to sell intoxicating liquors, wines or beer on Sunday, or on general, special or primary election days, either State, county or municipal.

Sec. 7. That no dealer in intoxicating liquors, wines or beer shall himself drink, consume or give away any intoxicating liquor, wine or beer in any quantity on the premises where such liquor, wine or beer is sold, nor shall he permit or suffer any assistant, servant, employee, purchaser or any person whomsoever to drink, consume or give away any intoxicating liquor, wine or beer on such premises, nor shall he provide any other premises with the intent to defeat'the policy of this act.

Sec. 8. That no gates, doors, windows or openings of any kind shall connect the place of business of any dealer in intoxicating liquors, wines or beer with any adjacent house or lot so as to permit ingress into or egress out of such house or lot from or into such place of business: that no blinds or screens, chairs, settees, benches or tables shall be set up or used in such place of business; that no musical, vaudeville or other attractions shall be permitted to be carried on in such place of business, nor shall any loitering be allowed therein; that no obscene or sensuous picture or statuary shall be displayed in any such place of business; that throughout the night a light or lights.shall be kept burning in such place of business, and no doors, blinds, curtains, shades, screens or other things shall be allowed to prevent persons on the outside of such place of business from seeing inside thereof at all hours of the day and night, and it shall be the duty of the proprietor of such place of business to see that this section is complied with.

Sec. 9. That no retail dealer shall trust, or give credit to any person or persons whomsoever for intoxicating liquors, wines or beer, and for a violation of the provisions of this section no debt or demand for intoxicating liquor, wines or beer shall be enforced in a Court of Law.

Sec. 10. That it shall be unlawful to sell, dispose of or distribute or keep for sale, disposal or distribution any meals, lunches or victuals of any kind whatsoever in any room or place where intoxicating liquors, wines or beer are sold or kept for sale.

Sec. x 1. That intoxicating liquors, wines or beer shall not be sold or exposed for sale in any room of any building the floor of which room shall be more than three feet above or below the sidewalk immediately in front of such room or in the absence of such sidewalk, the floor of such room shall not be more than three feet above or below the ground.

Sec. 12. In this Act, unless the context otherwise requires, ‘Persons’ includes a body of persons whether incorporated or not.

Sec. 13. That any person violating any of the foregoing provisions of this Act, shall be deemed guilty of a misdemeanor and upon conviction thereof, his license shall be forfeited and he shall be fined not more than one thousand dollars ($1,000.00) or imprisoned in the County Jail not exceeding twelve (12) months.

Sec. 14. That this Act is not intended to repeal any existing law in reference to the sale of intoxicating liquors, wines and beer, unless in conflict herewith, but Chapter 6516 of .the Laws of 1913 and all other laws in conflict herewith are hereby repealed.

Sec. 15. That this Act shall take effect at midnight of the night of September 30, A. D. 1915.

Approved May 5, 1915.”

The petitioner alleges “that Sections One and Seven of Chapter 6860 of the Laws of the State of Florida of 1915 are in violation of Sections One and Twelve of the Declaration of Rights of the Constitution of the State of Florida, and in violation of Section 16 of Article Three of the Constitution of the State of Florida, and in violation of Article 19 of the Constitution of the State of Florida.”

Sections 1 and 12 of the Declaration of Rights of the Constitution of Florida read as follows:

“Section 1. All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and obtaining safety.”

■ “Section 12. No person shall be subject to be twice put in jeopardy for the same offense, nor compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation.”

Section 16 of Article III is in the following words:

“Each law enacted in the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amend-eel, shall be re-enacted and published at length.”

Article XIX is as follows:

“Local Option.

“Section 1. The board pf county commissioners of each county in the State, not of tener than once in every two years, upon the application of one-fourth of the registered voters of any county, shall call and provide for an election in the county in which application is made, to decide whether the sale of intoxicating liquors, wines or beer shall be prohibited therein, the question to be determined by a majority vote of those voting at the election called under this section, which election shall be conducted in the manner prescribed by law for holding general elections; Provided, That intoxicating liquors, either spirituous, vinous or malt, shall not be sold in any election district in which a majority vote was cast against the same at the said election. Elections under this section shall be held within sixty days from the time of presenting said application, but if any such election should thereby take place within sixty days of any State or National election, it shall be held within sixty days after any such State or National election.

“Section 2. The legislature shall provide necessary laws to carry out and enforce the provisions of section one of this article.”

The first contention insisted upon before us is that Sections one and seven of Chapter 6860 are violative of Section 16 of Article 3 of the State Constitution. We have frequently had occasion to consider and construe this clause of the constitution. See State ex rel. Moodie v Bryan, 50 Fla. 293, 39 South. Rep. 929, wherein the prior decisions of this court upon, the point will be found collected. As we held in the cited case, while the provision in Section 16 of Article 3 of the Constitution is mandatory and of as much binding force upon the Legislature and upon the courts as any other provision of that instrument, and while it is the duty of the courts to declare legislative enactments void, when questioned, that are clearly non-complaint with its requirements, still the courts in construing the acts of the legislative branch of the government should always. apply a liberal rule, and refuse to declare its action void, except in clear cases that are free from every reasonable doubt.

It is a sufficient compliance with Section 16 of Article 3 of the Constitution if the subject is expressed in the title to the act, the matters properly connected with such subject not being required to be expressed in the title.

If the title to the act fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill it is all that is necessary. The title need not be an index to the contents of the bill or act. Also see the subsequent decisions of Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 South. Rep. 874; Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747; State v. Bethea, 61 Fla. 60, 55 South. Rep. 550; Thompson v. State, 66 Fla. 206, 63 South. Rep. 423. As is well said in an instructive note on page 430 of 15 L. R. A. (N. S.), “the constitutional provision found in nearly all the states, which, with a few minor variations, is to the effect that no law shall embrace more than one subject which shall be'expressed iff its title, is one which has been employed with much frequency to assail various statutes, not a few of which have been the liquor laws.” Numerous authorities are cited to us upon the point under consideration from other jurisdictions, which, however, we do not deem it necessary to analyze or discuss for the reason that we are of the opinion that the principles enunciated in our own decisions are decisive of the matter. In addition to the cases already.cited, we would refer especially to Ex Parte Lewinsky, 66 Fla. 324, 63 South. Rep. 577, 50 L. R. A. (N. S.) 1156. It will be observed that the act now under consideration expressly repeals Chapter 6516 of the Laws of 1913, which was before us for construction in the Lewinsky case. In that case, as in the instant case, it was contended that the act was unconstitutional because the title thereto was violative of Section 16 of Article III of the State Constitution. We call attention tO' the fact that the only difference in the titles to these two acts is that Chapter 6860 has the additional words in its title, “and repealing- laws in conflict herewith.” We refused to sustain this contention in the Lewinsky case and must do likewise in the instant case, believing that the principles there announced are controlling here. As we there said, the cited act of the legislature is alleged to be unconstitution and void, upon two grounds : The title being “An Act to Regulate the Sale or Furnishing- of Intoxicating Liquors, Wines or Beer, and Prescribing a Penalty for the Violation of Certain of Its Provisions” is said to be too restrictive to admit of the prohibitions therein contained. The assertion is untenable. Every regulation is of necessity a restriction. “Regulate” is defined by Webster to mean “to direct by rale or restriction.” We are strengthened in the correctness of this conclusion by the forcible reasoning in McPherson v. State, 174 Ind. 60, 90 N. E. Rep. 610, 31 L. R. A. (N. S.) 188, a case which is very much in point. We have carefully read not only the majority opinion rendered therein, but also the vigorous dissenting opinion, and have also examined many of the authorities cited in the two opinions, in which will be found collected practically all the cases upon each side of the question. As will be readily seen, there is some conflict in the authorities, but we are of the opinion that the majority opinion is not only the better reasoned but is the better supported by the authorities. Following the course therein pursued and reviewing the history of the legislation in this State relating to the sale of intoxicating liquors, we reach the conclusion therein announced that “the object and purpose of the Act before us is the regulation, and not the prohibition, of the liquor traffic,” and that the subject treated in sections one and seven, upon which the assault is made, is fairly deducible from the title of the Act, and that there has been no violation of Section 16 of Article III of the State Constitution. We take the following excerpt from the majority opinion, which, we think states the law correctly: “Furthermore, the word ‘prohibition’ is akin to ‘regulate, restrict and control.’ Its use in the body of the act is of little significance. To forbid the sale of liquor by those who have no license, to deny the licensee the right to sell on certain days, between certain hours, in certain places, in certain quantities, is, to some extent at least, qualified prohibition. It is prevention, interdiction. Such laws, however, are unquestionably regulations and restrictions of the liquor traffic. They operate as a check, or restraint, upon the sale, not as an absolute inhibition, and are in the strictest sense regulations. They regulate by prohibiting the sale at certain times, to certain persons, and in certain places. Besides, to say the law ‘Prohibits’ the citizen from selling without a license, or that the law ‘prohibits’ the licensed seller from selling on Sunday, is etymologically correct. In fact, the word was employed in this sense by the legislature in framing' section four of the Nicholson law (§8327 Burns 1908, Acts 1895 p. 248), which provides that obstructions to the street view shall not be set up in the selling room ‘during such days and hours when the sales of such liquors are prohibited by law.’ So it is not so much the primary meaning of the word as the sense in which it is popularly understood, as applied to the manufacture and sale of spirituous liquors, that must control.

Following are a few definitions of ‘prohibitions’ as specifically applied: ‘Interdiction of the liberty of making and of selling, or giving away, intoxicating liquors for other than medicinal, scientific and . religious purposes.’ Anderson’s Law Dict. And see Bouvier’s Law Dict (Rawle’s ed.). ‘The forbidding by law of the manufacture and sale of alcoholic liquors.’ English’s Law Dict. ‘The forbidding by law of the sale of alcoholic liquors as beverages.’ Webster’s Int. Diet. ‘The forbidding by legislative enactment of the manufacture and sale of alcoholic liquors for use as beverages.’ Standard Diet. The term has even a wider sweep than this. A prohibitory law to be classed as such must, at the same instant, in the same way, become effective to1 interdict the sale of liquors throughout all parts of the jurisdiction of the lawmaking power.” AVe would also refer to the interesting discussion in State v. Fulks, 207 Mo. 26, 105 S. W. Rep. 733, 15 L. R. A. (N. S.) 430, and especially to the note appended thereto in 15 L. R. A. See also the note appended to the Lewinsky case in 50 L. R. A. (N. S.) 1156.

We now pass to the further contentions of the petitioner that Sections one and seven of the act under consideration are violative of Setcions one and twelve of the Declaration of Rights of the State Constitution and also of Article XIX of the Constitution, which contentions we may conveniently treat together.

In the prior decisions of this court which'we have cited and in what we have already said these contentions have been practically decided adversely to the petitioner. As was said in Crowly v. Christensen, 137 U. S. 86, text 91, 11 Sup. Ct. Rep. 13, “There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of 'the United States.” The entire opinion from which this quotation is taken will prove most instructive. Unquestionably but for the provisions contained in Article NIX of the State Constitution, the Legislature would have the power to prohibit and suppress the traffic in intoxicating liquors. Since the adoption of this Article the Legislature from time to time has enacted laws regulating and restricting such traffic, and again and again we have upheld such statutes. See Crabb v. State, 47 Fla. 24, 36 South. Rep. 169; Schiller v. State, 49 Fla. 25, 38 South. Rep. 706; Ex Parte Theisen, 30 Fla. 529, 11 South. Rep. 901, 32 Amer. St. Rep. 36; Mernaugh v. City of Orlando, 41 Fla. 433, 27 South. Rep. 34; Howland v. State, 56 Fla. 422, 47 South. Rep. 963, 21 L. R. A. (N. S.) 192; State v. Ackerly, 69 Fla. 23, 67 South. Rep. 232. As we held in Butler v. State, 25 Fla. 347, 6 South. Rep. 67, and also in subsequent cases, “Whenever the local option Article of the Constitution prohibiting the sale of intoxicating liquors, wines or beer is put in operation in any county or any election district, it suspends, during the period of its operation therein, the provisions of all statutes authorizing or licensing the sale o-f intoxicating liquors, either spirituous, vinous or malt, in such county or district.” As we also said in State ex rel. Metcalf v. Butt, 25 Fla. 258, text 267, 5 South. Rep. 597, “While it is true that Article XIX of the Constitution was submitted to the people to be voted upon separately from the other articles, yet in the language of the ordinance submitting it, it was ‘to become a part of the Constitution, if adopted by a majority of the votes cast upon the question.’ It is in our judgment as much a part of the Constitution as any other article of that instrument is.” We would add that, as a part of the Constitution, it is to be construed in connection with all the other provisions thereof. Article XIX does not undertake to deal with regulating the sale of intoxicating liquors, under the police power which the legislature has the authority to' exercise, but only to give the qualified voters in any county the right to determine at an election called for that purpose whether or not the sale of such liquors shall be absolutely prohibited in such county. Where the sale of intoxicating liquors is permitted or authorized in a county it is still subject to such regulations under the police power as the legislature may prescribe, short of actual or practical prohibition, as we held in Ex Parte Lewinsky, supra.

It cannot successfully be contended that the Act in question extends to actual or practical prohibition of the sale of intoxicating liquors. There would seem to be no occasion for citing authorities from other jurisdictions, as we are bound by our own decisions. We content ourselves with merely referring to the following, among the many which we have examined: State v. Calloway, 11 Idaho, 719, 84 Pac. Rep. 27; Paul v. Judge of the Circuit Court of Gloucester County, 50 N. J. L. 585, 15 Atl. Rep. 272, 1 L. R. A. 86. See also Joyce on Intoxicating Liquors, Sec. 121, where many cases will be found cited.

We held in State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929, as we have done in both prior and subsequent decisions, that “The reasonableness or justice of a deliberate act of the Legislature, the wisdom or folly thereof, the policy or motives prompting it, so long as the act does not contravene some portion of the organic law, are all matters for legislative consideration and are not subject to judicial control. The courts are bound to uphold a statute, unless it is clearly made to appear beyond a reasonable doubt that it is unconstitutional.’’

As we also held in the cited case, following prior decisions, “In passing upon the constitutionality of statutes generally, no matter from what standpoint the assault thereon may be made, it is a well settled and cardinal rule that nothing but a clear violation of the constitution will justify the courts in overruling the legislative will; and where there is reasonable doubt as to the constitutionality of an act it must be resolved in favor of the act.” See also the subsequent decisions of McNeil v. Webeking. 66 Fla. 407, 63 South. Rep. 728; City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769; Anderson v. City of Ocala, 67 Fla. 204, 64 South. Rep. 775, 52 L. R. A. (N. S.) 287.

It is not for us to forecast the practical working of the •Act or to determine whether it will result in promoting the cause of temperance or the contrary. After the most careful consideration, we.are of the opinion that the Act is not open to the attack made upon it and that we would not be warranted in declaring sections one and seven invalid and unconstitutional.

The petitioner has failed to point out wherein any of his constitutional rights have been invaded; it follows that the writ must be discharged and he be remanded to custody.

Cockrell and Whitfield, JJ., concur.