Marasso v. Van Pelt
| Decision Date | 19 April 1919 |
| Citation | 77 Fla. 432,81 So. 529 |
| Parties | MARASSO v. VAN PELT, Sheriff. |
| Court | Florida Supreme Court |
Error to Circuit Court, Escambia County; A. G. Campbell, Judge.
Application of Antonio Marasso for writ of habeas corpus against J. C Van Pelt, as Sheriff of Escambia County. Judgment remanding petitioner, and he brings error. Affirmed.
Additional Syllabus by Editorial Staff
Syllabus by the Court
The provision of chapter 7736, Laws of Florida, approved December 7, 1918, making 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 any person over the age of 21 years may possess in such person's bona fide residence, for the personal use of himself or herself and family, not exceeding 4 quarts of distilled alcoholic or intoxicating liquors or beverages and 20 quarts of malt or fermented alcoholic or intoxicating liquors or beverages, does not violate section 1 of the Declaration of Rights or article 19 of the state Constitution, as amended (see Laws 1917, vol. 1, pp. 323, 324) and made effective on January 1, 1919. Browne, C.J., and Taylor, J., dissenting.
COUNSEL Philip D. Beall and John S. Beard, both of Pensacola, for plaintiff in error.
Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for defendant in error.
The plaintiff in error was taken into custody by the sheriff on a warrant issued under an information which in effect charges in one count that on January 14, 1919, he and two others unlawfully held in their possession more than 4 quarts of alcoholic liquors each, to wit, 36 gallons, and in a second count that on the same day they unlawfully held in their possession more than 4 quarts of alcoholic beverages each, to wit, 23 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 19 of the state Constitution as amended. See Laws 1917, vol. 1, pp. 323, 324.
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:
Article 19, State Constitution, as amended at the election held November 5, 1918. See pages 323 and 324, vol. 1, Laws 1917.
This article qualifies the provisions of section 1 of the Declaration 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 19 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 withholds from the Legislature the power to regulate the possession of such liquors and beverages under the rule of 'Expressio unius est exclusio alterius'; and that the statute 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 'Expressio unius est exclusio alterius' can properly be applied only to effectuate the intent of the lawmaking power. It should never be applied to defeat the manifest purpose and intent of a provision of law. Article 19 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 purposes, and wine for sacramental purposes,' ad 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 implication abrogate other police powers, particularly when the exercise of the other powers accords with the one commanded. See State v. Kane, 15 R.I. 395, 6 A. 783.
Organic limitations upon the authority of the Legislature 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 'Expressio unius est exclusio 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 legislative power to regulate the possession of intoxicating liquors would tend to defeat, rather than to effectuate, the express provisions of article 19. The command for the enactment of suitable laws to enforce the article excludes implied limitations upon the legislative power in the premises.
Article 19 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 exclusio 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 P. 388, 36 L. R. A. (N. S.) 73; State v. Durein, 70 Kan. 13, 80 P. 987; State v. Durein, 70 Kan. 1, 78 P. 152, 15 L. R. A. (N. S.) 925. A contrary decision in State v. Gilman, 33 W.Va. 146, 10 S.E. 283, 6 L. R. A. 847, had been qualified and explained in State v. Sixo, 77 W.Va. 243, 87 S.E. 267. See, also, State v. Tincher, 81 W.Va. 441, 94 S.E. 503; Pine v. Commonwealth, 121 Va. 812, 93 S.E. 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 business and public places. The manner and extent of the exertion of the sovereign 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; but 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. State of Georgia, 249 U.S. 454, 39 S.Ct. 316, 63 L.Ed. 704 (April 14, 1919).
Statutory regulations under the police power of a 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, 66 So. 153; St. Louis Advertising Co. v. City, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599 (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....
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