State ex rel. Arpen v. Brown

19 Fla. 563

• Court: Supreme Court of Florida
• Decided: January 15, 1883
• Status: Published

Opinion

The Chief-Justice

delivered the opinion of the court:

Arpen applied to the Collector of Revenue for a license to sell intoxicating liquors, tendering the amount required by law. The Collector refused to issue the license upon the ground that the “ act to regulate the sale of liquors, wines and beer in the State of Florida by the Boards of County Commissioners of the several counties ” had not been complied with. This act was approved March 3,1883, and is designated as Chapter 3416. Arpen then obtained an alternative writ of mandamus from this court directing respondent to issue the license or show cause, &c. On the return of the writ respondent moves to quash upon the ground that the act of March 3, Chapter 3416, had not been complied with. Sections one and two of this act require of the person wishing to sell such liquors in any election district that he shall make application to the Board of County Commissioners, at a regular meeting, for a license, which application must he signed by a majority of the registered voters of the election district, as shown by the registration list, asking the Board to grant to him the right to sell liquors. The applicant is required to make oath that every signature to the application is genuine, and that there was no fraud, bribery or deception in procuring the signatures. Each signature must be attested by two credible witnesses, and the petition must be published in a newspaper in the county, or it there be no such paper, it must be posted at the county site and in the election district for two weeks before the meeting of the Commissioners.

The third section forbids the Collector to issue the license unless a permit is presented from the County Commissioners, and provides that the license shall contain a provision that the same may be suspended or revoked by the Board of Commissioners for cause, to-wit: selling liquors, wine or beer to a minor or person intoxicated.

The fifth and sixth sections provide that on complaint that the licensee has violated this provision the license may be suspended and revoked when, notice having been given of any complaint, it shall appear, by the proofs to be taken before the Board, that there has been such violation, the Board hearing and determining the same.

It is claimed by the relator that the act is inoperative, because it is “ not complete in itselfthat it contains no provision for issuing a license, or on what terms it shall be issued.

The Legislature, at the session of 1881, by Chapter 3219, had enacted that State licenses should be issued to dealers in spirituous liquors by the Collector of Revenue on the payment of three hundred dollars for each place of business, and that counties and incorporated towns and cities might exact a further amount, not exceeding fifty per cent, of the State tax, the license to be signed by the Collector and Clerk of the Circuit Court.

By an act approved March 5, 1883, Chapter 3413, the act of 1881 was repealed, but the provisions above referred to were re-enacted to all practical intent, it being an act revising the revenue law of the State.

There is no incongruity in the acts of March 3 (prescribing the conditions and mode of applying for the license) and the act of March 5 th, which fixes the amount to be paid on issuing the license. The two acts relating to the same subject-matter are in entire harmony as to their practical operation. '

But it is contended that because the act approved March 5th is operative in itself and does not require a petition br the action of the County Commissioners to authorize the issuing of a license, its operation and effect is to repeal the act of March 3d. There is nothing in the act of March 5th expressly repealing anything except the act of 1881, but it is urged that the act of March 3 is repealed by necessary implication by that of March 5th, that being a later act it supersedes the former.

The answer to this is that there is no incongruity between them; that the act of March 3d had not been approved and was not a law when the last act was passed ; and the Legislature adjourned on the second dav of March, leaving both acts in the hands of the Governor for his approval, thus indicating that the Legislature intended that both should become laws. • It can scarcely be contended that the Governor intended that one should repeal or defeat the other by signing the one on Saturday and the other on Monday, even if it lay in his power thus to destroy the effect of the former. He signed both in furtherance of the legislative will, and doubtless if the revenue law had first come to his attention he would have signed it first. There is nothing here to indicate that the act last approved was-intended to repeal the first, and the acts being in pan materia must be upheld if both can be made effective. Fla. A. & G. R. R. Co. vs. P. & G. R. R. Co., 10 Fla., 145, 160; Mitchell vs. Duncan, 6 Fla., 13, and authorities cited; House vs. State, 41 Miss., 737.

It is urged that the fifth and sixth sections are unconstitutional in that they create a judicial tribunal unknown to the law, by investing the County Commissioners with judicial power to hear, try and determine a complaint against a licensed dealer and to impose a penalty, i. e., to revoke the license ; and it is claimed that these sections are so interwoven with the act of March B that the whole act is tainted with illegality.

While we agree that the provision of the sixth section does attempt to confer judicial power, upon the Board in the respect stated, and that so much of the fifth and sixth sections as is liable to this objection is void under the constitutional provision which forbids the creation of courts not mentioned in the Constitution, yet if those sections were entirely eliminated the act would not be in the least affected in respect to its general purpose as expressed in its title. The act yet remains entirely operative to pi’ovide the method of making application to the Board and obtaining its permit to the issuance of the license which is the purpose of the act. * The objectionable sections relate to a proceeding to annul it, a feature by no means essential to the operation of the act in other respects. An act may be void in part without affecting other portions of it, if that which remains is capable of being executed in accordance with the purpose of the Legislature wholly independent of that which is rejected. Cooley’s Con. Lim., 177, 180.

It is further claimed that the practical working of the law would be pernicious, promotive of criminal and demoralizing practices, and is therefore void as against public policy. It is argued that “ its tendency is to wrest the liquor business from the hands of the better element of dealers and place it in the control of the more corrupt and venal. For it may be that an honest, respectable, fair-minded dealer may not be able to procure the endorsement of the majority of the registered voters, except by practices to which he would not resort. Rot so, however, with the evil-minded and wickedly-disposed citizen. He would not hesitate to go out into the byways to give an ignorant and corrupt voter a drink or a dollar for his endorsement and thus purchase the requisite majority and afterwards add perjury to his other crime by taking the oath required by the act.” The act is thus said to be bad in morals and against public policy.

This is a harsh arraignment of the legislative branch of the government which would pass an act tending to sacrifice the moral life of the community. If the argument were addressed to the Legislatui’e it might be induced to prevent the threatened mischief by requiring that there should be an entire prohibition, or an unanimous call to the business, instead of the consent of a purchased majority. But this is not an argument to be addressed to the courts.

The Legislature alone must deal with measures of mere public policy in respect to these as well as other affairs of public propriety and welfare.

The practical result of sweeping away this restrictive act would be, that any bad man in the community might go to the Collector and pay the license tax and demand a licensé and invoke the whole power of the State to compel the Collector to issue it to him, though no sane man in the county would sign his application; for the law of 1881, re-enacted by that of March 5th, 1883, reads : “ Which license shall be issued to each person on receipt of the amount hereinafter provided.” It was doubtless with the view to prevent the sale of intoxicating liquors by persons who ought not to be entrusted with the agency, that the act approved March 3d was passed.

Another objection to this act is that it contravenes that provision of the Constitution which requires that all laws of a general nature shall have uniform operation throughout the State. [Sec. 17, Art. 4, of the State Constitution enumerates certain cases in which no local or special law -shall be passed. The other provisions of the State Constitution are set out on pp. 574-5 of this volume. — Rep.] It was conceded in the argument that the act is not what is termed a “ local option ” law, i. e., a law to take ■or not to take effect in a given locality upon the consent or dissent of the voters of the locality, or upon -other contingency while it may have effect in other localities. There is nothing in the act providing that it is to take effect or not, either generally or locally, upon any contingency. There is nothing in it indicating that licenses shall or shall not be granted upon the assent or dissent of the majority of voters anywhere. It simply provides that a license shall not be granted to the particular individual unless upon these several conditions: 1, that his application must be freely signed by a certain number of voters requesting that this person be granted a license to sell liquors in a designated place, and 2, that he pay tor the privilege a certain sum of money. The act is uniform in its operation throughout the State, and uniform in its operation upon every person who wishes to engage in the occupation of a liquor dealer. Ho person is prohibited by it from obtaining the requisite number of petitioners or paying his money or receiving a license, nor is there any locality in the State where he is forbidden to sell liquors upon complying with the law. This la.w is uniform because it operates alike upon all persons in all parts of the State who may desire to engage in the particular occupation. McConihe vs. McMurray, 17 Fla., 238, 266, and authorities cited.

Laws imposing conditions and restraints upon the sale of intoxicating liquors as police regulations have been upheld everywhere. The sale of drugs, gun-powder, liquors, poisons of every kind, is uniformly regulated by placing conditions and restrictions upon it for the protection of health and morals. Men are not allowed to practice law or physic, or surgery or sell drugs, unless they possess certain qualifications of learning, scientific knowledge, skill, integrity, &c., and in addition may be required to pay a tax or license fee to the government for the privilege of carrying on their special business, in which they are protected by law, and these conditions are sustained by the courts as reasonable and' proper for the protection of the public against the mischiefs that may flow from ignorance and quackery, and yet it can scarcely be contended that the laws regulating these matters are not uniform in their operation within the meaning of the Constitution, simply because an ignorant or vicious man may not be able to comply with the conditions essential to the public welfare. The right to impose conditions upon which men may be allowed to engage in a business which is the proper subject of police regulation, as before remarked, have been sustained by the courts everywhere, and as to the extent of the conditions, so long as they do not contravene the constitutional rights of persons, the Legislature alone must limit them.

In the case of The State ex rel. Henshall vs. Ludington, 33 Wis., 107, where an act of the Legislature declared it to be unlawful to sell intoxicating liquors without having first obtained a license therefor, and that no person shall be granted a license without giving a bond, “ conditioned for the payment of damages to any person which may be inflicted upon or suffered by them, either in person or property or means of support, by reason of so obtaining a license, selling or giving away intoxicating drinks, or dealing therein,” and authorizing suits to be brought upon the bond by any person injured by the selling or giving away of intoxicating liquors, Dixon, O. J., delivering the opinion of the court, says: “ Counsel for the respondent frankly concedes the constitutional power of the Legislature to entirely prohibit the selling or giving away of ardent or intoxicating liquors or spirits to be used as a beverage, and attack only certain provisions of the act as being inconsistent with the authority to sell conferred, and repugnant to the constitutional rights of the citizen engaged in an authorized and lawful traffic or business. The point thus yielded, and as to which there would seem to be little room for controversy at the present day, of the general power of the Legislature over the subject acted upon, * * * takes away all grounds of constitutional support for the objections specially urged against particular clauses or portions of the act.” The power to prohibit involves “ the utmost limit of legislative discretion in prescribing the conditions of sale. * * * It may couple the license with conditions so oppressive, burdensome and unjust that no citizen can afford to apply for or accept the privilege and engage in the business.” The court further says : “ The subject with which we are dealing is not one of those pertaining to the primary and fundamental rights of the citizen, and as to which no unlimited control has been vested in the Legislature.” Counsel “ seem to overlook this principal ground of distinction and argue as if the action of the Legislature was an infringement of the natural and inalienable rights of the citizen, declared and guaranteed by the Constitution. * * * Unlike other trades and employments which it is the right of the citizen to pursue undisturbed by arbitrary legislative interference and control, the person who engages in this must, within the limitation above indicated, do so subject to such disadvantages and restraints as may be prescribed by the law-making power which authorizes it.” The Constitution of Wisconsin contains no provision relating to the subject of intoxicating liquoi’s or prohibiting the sale thereof. The doctrine of the court is the enunciation of the general fundamental right of the Legislature to prohibit or restrain by licenses, taxes, &c., and to impose such conditions and safeguards against the abuse of the traffic in an article of the character in question. It is not necessary for us to decide, and we do not decide here, that the traffic in intoxicating liquors may be wholly prohibited, but in the exercise' of the police power of the State the Legislature may regulate and restrain it, and this power implies that such conditions may be annexed to the applition for a license as the Legislature may deem reasonable; and if the conditions here annexed are such as may prevent the granting of licenses to immoral or dishonest persons, we have no right to say that the Legislature may not prescribe the qualifications of those who may engage if! the occupation of dealers in intoxicating liquors for the protection of the public against the conduct of vicious men who might otherwise engage in the business without restraint, owing nothing to the wholesome public sentiment.

“ Those statutes, (says Judge Cooley, Const. Lim., 581,) which regulate or altogether prohibit the sale of intoxicating drinks as a beverage have also been, by some persons, supposed to conflict with the Eederal Constitution. Such of these, however, as assume to regulate only and to prohibit sales by other persons than those who should be licensed by the public authorities, have not suggested any serious question of constitutional power. * * * The same laws have also been sustained when the question of conflict with State Constitutions or with general fundamental principles have been raised. They are looked upon ■as police regulations, established by the Legislature for the prevention of intemperance, pauperism and crime, and for ■the abatement of nuisances.” Id., p. 583, citing decisions from Massachusetts, Iowa, Connecticut, Michigan, Illinois, Vermont, Indiana, New York and other States.

In the following cases laws referring to the people of towns and other localities the question whether licenses should be therein granted to sell intoxicating liquors have been sustained: Com. vs. Deans, 110 Mass., 357 ; Com. vs. Bennett, 108 Id., 27; Com. vs. Turner, 1 Cush., 493 : State vs. Wilcox, 42 Conn., 364; State vs. Court Com. Pleas, 36 N. J. Law, 72 ; Locke’s Appeal, 72 Pa. St., 491: Anderson vs. Com., 13 Bush. Ky., 485.

In the case oí Anderson ys. Commonwealth the court unanimously hold “ that the sale by retail of intoxicating liquors may be constitutionally regulated; and that in localities, where in the opinion of the Legislature or of its constitutionally organized agencies, the peace and good order oí society so require, license to carry on the retail traffic-may be l-efused altogether. * * * And further, that the Legislature may create other agencies to determine the local question, and that it is no constitutional objection to the agencies created by the act under consideration that they are composed of the body of the qualified voters of the city, town or civil district in which the necessary steps may be taken to test the sense of such voters on the subject of such retail traffic.”

This decision expresses the views of many courts which have had the question before it, and the same rule would sustain the act under consideration. The Supreme Court of Indiana in Groesch vs. The State, 41 Ind., 547, holds that the Constitution does not require that the operation of laws throughout the State shall be uniform in any other sense than that their operation shall be the same in all parts of the State, under the same circumstances and conditions. The act under consideration in that case required any person desiring a permit to sell intoxicating liquors as a beverage to file in the Auditor’s office a petition praying such permit, stating among other things that he is a proper person to receive such permit, which petition shall be signed by the applicant and also by a majority of the legal voters resident in the ward or township where the applicant proposes to sell such liquors. The Board of Commissioners on being satisfied'that the petition is in proper form, and that it has been signed as required, shall direct a permit to be issued by the Auditor upon his complying with the provisions of the act, paying for the permit and giving bond as required by law. Says the court: “ Thus the qualifications and fitness of each person, as well as the wish of the petitioners for the establishment of the business in their neighborhood, are at once settled by the voice of those who are most intimately concerned. If they do not thus open the door to the traffic the law provides that, so far as the applicant is concerned, it shall remain closed.” The compliance with such conditions, the court says, has not been considered as involving the exercise of legislative functions, and the act is general in its application to every locality, and uniform in its operation. The people in their sovereign capacity do not enact or give vitality to the law or nullify it, but aid in its enforcement.

A law similar to this was also adjudicated upon in House vs. The State of Mississippi, 41 Miss., 737, where it .was decided that the power to grant such licenses must be exercised in accordance with the requirements of the act, “ and a grant of license without a petition of a majority of the legal voters resident within the city is null and void.” To the same effect see Rohrbacher vs. Mayor, &c., 51 Miss., 735, 743.

It is further urged with great tenacity on the part of the relator that the act under consideration is in violation of the fourteenth amendment to the Constitution of the United States, which runs thus: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside.”

“ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

A case came before the Supreme Court of the United States, reported in 18 Wallace, 129, (Bartemeyer vs. Iowa) in which was involved the right of the State to regulate the traffic in intoxicating liquors, and it was urged that such a law was void as violating the privileges or immunities of citizens of a State or of the United States. The court says: “We think that the right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States.” Mr. Justice Bradley, in a concurring opinion, says: “ The law was not in this case an invasion of property existing at the date of its passage, and the question of depriving a person of property without due process of law does not arise. Uo one has ever doubted that a Legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does not interfere with vested rights of property. When such rights stand in the way of public good they can be removed by awarding compensation to the owner. When they are not in question a claim of a right to sell a prohibited article can never be deemed one of the privileges and immunities of the citizen.”

Mr. Justice Field, concurring also in the opinion of the court, says: “ The prohibition of sale in any way or for any use is quite a different thing from the regulation of the sale or use so as to protect the health and morals of the community. I have no doubt of the power of the State to regulate the sale of intoxicating liquors where such regulation does not amount to the destruction of the right of property in them. * * No one has ever pretended, that I am aware of, that the fourteenth amendment interferes in any respect with the police powers of the State. Certainly no one who desires to give to that amendment its legitimate operation has ever asserted for it any such effect. It was not adopted for any such purpose. The Judges who dissented from the opinion of the majority of the court in the Slaughter House Gases never contended for any such position. But, on the contrary, they recognized the power of the State in its fullest extent, observing that it embraced all regulations affecting the health, good order, morals, peace and safety of society, that all sorts of restrictions and burdens were imposed under it, and that when these were not in conflict with any constitutional prohibition or fundamental principles they could not be successfully assailed in a judicial tribunal.”

This decision of the Supreme Court of the United States ■would seem to so cover the question made under the fourteenth amendment that nothing further need be said. Counsel, however, call our attention to a decision of the Circuit Court of the United States for the District of California in a case involving the constitutionality of a revenue law of that State, in which the opinion was filed in September last. The case was that of The County of San Mateo vs. The Southern Pacific R. R. Co., reported in 13 Federal Reporter, 723. We quote some portion of the opinion to which our attention is directed. Mr. Justice Field says: “ The fourteenth amendment of the Constitution in declaring that no State shall deny to any person within its jurisdiction the equal protection of the laws, creates a limitation upon the exercise of all the powers of the State which can touch the individual or his property, including among them that of taxation. Whatever the State may do it cannot deprive any one within its jurisdiction of the equal protection of the laws ; and by equal protection oí the laws is meant equal security under them to every one, on similar terms, in his life, his liberty, his property, and in the pursuit of happiness. It implies not only accessibility by him, on the same terms with others, to the courts of the country for the security of his person and property, the prevention and redress of wrongs and the enforcement of contracts, but also an exemption from any greater burdens or charges than such as are equally imposed upon all others under like circumstances. * * * Unequal exactions in every form, or under any pretence, are absolutely forbidden. * * * Taxation on business in the form of licenses may also vary according to the calling or occupation licensed and the extent of business transacted; but even then there must be uniformity of charges with respect to the same calling or occupation in the same locality. * * * It (the 14th amendment) does not, indeed, place any limit upon the subjects in reference to which the States may legislate. It does not interfere with their police power. Upon every matter upon which, previously to its adoption, they could act, they may still act. They can legislate now, as they always could, to promote the health, good order and peace of the community; to develop their resources, increase their industries and advance their prosperity ; but it does require that in all such legislation hostile and partial discrimination against any class or persons shall be avoided ; that the States shall impose no greater burdens upon any one than upon the rest of the community under like circumstances; nor deprive any one of rights which others similarly situated are allowed to enjoy. It forbids the State to lay its hand more heavily upon one than upon another under like conditions. It stands in the Constitution as a perpetual shield against all unequal and partial legislation by the States, and the injustice which follows from it, whether directed against the most humble or the most powerful, against the depised laborer from China or the proud master of millions.”

We fail to discover in the paragraph quoted, or in any part of the text of the opinion referred to, that the fourteenth amendment places any obstacle in the way of the right of States to legislate in respect of the regulation of traffic in intoxicating liquors or the exercise of any of the recognized police powers. They remain as before the adoption of the amendment. The amendment requires that all citizens shall be amenable to the same laws. The argument that every man in the community has the right to engage in any kind of business he may choose, and that the Legislature may not impose conditions in respect to the exercise of such right, especially in business that has always been the subject of police regulation and restriction, goes as well against the power of the State to impose any restriction, even the asking for a license, as against the conditions imposed by the act in question. The opinion of Justice Eield in the California tax case agrees with that of all the Justices in the case in 18 Wallace, that the fourteenth amendment does not affect the police powers of the States, as they existed before the adoption of the amendment; nor the power of the States to impose taxes and regulations upon property or business, “ provided they lay no greater burden upon any one than upon the rest of the community under the like circumstances; nor deprive any one of rights which others similarly situated are allowed to enjoy.” See, also, Missouri vs. Lewis, 11 Otto, 22, 31.

As was said by the court in Iowa (In re. Ruth, 32 Iowa, 252,) in regard to the license law of that State, a preventive restriction is thrown around the sale by permitting men of good moral character alone to deal in this article. Counsel exclaim, “ Have not men of bad moral character the same rights as men of good morals ?” Undoubtedly, all men are equal before the law in respect of the right of person and property, but every man who desires to engage in the business must submit to the terms prescribed by the law. Certain poisons are property, but the sale of them may be restricted to certain persons, namely: those having sufficient intelligence to know when they ought to be used, and of sufficient character for prudence to give assurance that these agents will not be carelessly administei’ed. Intoxicating liquors have uniformly been held to be proper subjects of police surveillance, and the sale of them guarded and restrained by regulations prescribed by the Legislature.

"We find that the act of March 3,1883, (except Sections five and six, which may be stricken out without impairing the efficacy of the act or the object of enacting it,) is not obnoxious to any provision of the Constitution of this State or of the United States.

The motion to quash the alternative writ is granted.