Com. v. Anheuser-Busch, Inc.

• Court: Virginia Supreme Court
• Writing for the Court: Holt, J.
• Citation: Com. v. Anheuser-Busch, Inc., 181 Va. 678, 26 S.E.2d 94 (1943)
• Decision Date: 14 June 1943
• Docket Number: Record No. 2670.
• Parties: COMMONWEALTH OF VIRGINIA, EX REL. v. ANHEUSER-BUSCH, INC., ET AL.

Page 678

181 Va. 678

COMMONWEALTH OF VIRGINIA, EX REL. v. ANHEUSER-BUSCH, INC., ET AL.

Record No. 2670.

Supreme Court of Virginia, Wythebille.

June 14, 1943.

Present, All the Justices.

1. INTOXICATING LIQUORS — Virginia Alcoholic Beverage Control Act — Power of Legislature to Appoint Board. — The power of the legislature to appoint boards such as the Virginia Alcoholic Beverage Control Board is no longer debatable.

2. CONSTITUTIONAL LAW — Governmental Powers and Functions — Delegation of Power. — Since departments, commissions and boards have no legislative powers within themselves, the delegation of such power is necessary.

3. INTOXICATING LIQUORS — Virginia Alcoholic Beverage Control Act — Regulation of Advertising. — The power of the Virginia Alcoholic Beverage Control Board to regulate advertising of alcoholic beverages does not carry with it the power to forbid advertising entirely.

4. INTOXICATING LIQUORS — Regulations — Police Powers. — The police powers of the State with reference to the control of intoxicating liquors is to be distinguished from its powers to regulate traffic in other things. It would be different if the business sought to be followed was one of the ordinary pursuits in which all persons are enabled to engage.

5. INTOXICATING LIQUORS — Regulations — Business Affected with Public Interest. — Traffic in intoxicating liquors is a business affected with a public interest and must be dealt with from that viewpoint.

6. INTOXICATING LIQUORS — Virginia Alcoholic Beverage Control Act — Regulation of Advertising — Purpose. — The purpose of the regulations of the Virginia Alcoholic Beverage Control Act as to advertising was undoubtedly to discourage the artificial stimulation of liquor consumption.

7. INTOXICATING LIQUORS — Virginia Alcoholic Beverage Control Act — Illegal Advertising — Case at Bar. — In the instant case, a suit to review the power of the Virginia Alcoholic Beverage Control Board to regulate advertisements of intoxicants, the Board, under authority conferred by section 68 of the Acts of 1934 as amended by the Acts of 1936, page 419, Code of 1942, section 4675(5), prohibited any but licensed dealers from advertising. Defendant, an unlicensed dealer in the State of Virginia, advertised beer on billboards throughout the State.

Held: That the defendant should forthwith remove, or cause to be removed, the billboards, signs, posters and other similar outdoor advertising media advertising alcoholic beverages or beverages not in accordance with the rules and regulations of the Board.

Appeal from a decree of the Circuit Court of the city of Richmond. Hon. Julien Gunn, judge presiding.

The opinion states the case.

G. Stanley Clarke, Assistant Attorney General, for the appellant.

Hunton, Williams, Anderson, Gay & Moore, for the appellees.

HOLT, J., delivered the opinion of the court.

Under review is the authority of the Alcoholic Beverage Control Board over the advertisement of intoxicants. The use of alcohol in its many forms has perplexed society and its government from time immemorial and still does. It confronts them with an inescapable problem and apparently with an insolvable one. Some are cursed by it and some are comforted. Uphappy results have followed intemperate indulgence — certainly from the time of Noah — while discreet indulgence has added zest and wit to social gatherings long before the marriage feast at Cana.

After the Civil War little control was undertaken. Abuses were flagrant, the effect of which was to place our government under the complete control of those who wished to prohibit its use as a beverage, although, as a concession to the taste of others, an allowance of a quart a month was once made. Later came the Noble Experiment, which was a disappointment to many of its friends. Prohibition lost control, and one is now permitted to purchase two quarts a month, provided he is registered and presents his own coupon. This strange diagonal did not please everybody. You cannot placate the implacable.

The advertisement before us is not in itself objectionable and is no more provocative than that spread abroad throughout the Commonwealth by the medium of the press. This apparent inconsistency is due to the difficulty of regulating the contents of out-of-State publications.

It was the difficulty of dealing with the details of this highly explosive subject which led the Legislature to embark upon an experiment of its own and to establish the Virginia Alcoholic Control Board. Acts of Assembly, 1934, p. 100. The power of the Legislature to appoint such boards and commissions is no longer debatable.

"The range of control conferred by Congress and the State legislatures upon subsidiary lawmaking bodies, variously denominated as heads of departments, commissions, and boards, penetrates in the United States, as in Great Britain and the Dominions, the whole gamut of human affairs. Hardly a measure passes Congress the effective execution of which is not conditioned upon rules and regulations emanating from the enforcing authorities. These administrative complements are euphemistically called `filling in the details' of a policy set forth in statutes. But the `details' are of the essence; they give meaning and content to vague contours. * * * They were the beginning of what is often called a `fourth branch of government.' Since the war of 1914-18, and particularly since 1933, there has been an enormous and pervading increase in the number and scope of such administrative authorities." 42 Am. Jur. (Public Administration Law) section 4.

Of course the delegation to them of some legislative power is necessary. They have none within themselves.

Section 68 of the ABC Act repealed Code, sections 4581-4675, which prohibited all advertisements of ardent spirits.

The title to the Act of 1934, in part, reads:

"An Act to legalize, regulate and control the manufacture, bottling, sale, distribution, transportation, handling, advertising possession, dispensing, drinking and use of alcohol, brandy, rum, whiskey, gin, wine, beer * * *" etc.

Section 5, as amended, Acts of Assembly, 1936, p. 419, reads:

"Power to Make Regulations; How Published; Effect Thereof — (a) The board may from time to time make such reasonable regulations, not inconsistent with this act, nor the general laws of the State, as the board shall deem necessary to carry out the purposes and provisions of this act and to prevent the illegal manufacture, bottling, sale, distribution and transportation of alcoholic beverages, or any one or more of such illegal acts, and from time to time alter, repeal, or amend such regulations or any of them. Such regulations shall be published at least once in some newspaper published in the City of Richmond and in any other manner...