Neisel v. Moran

Decision Date21 August 1919
PartiesNEISEL v. MORAN, Sheriff.
CourtFlorida Supreme Court

On Rehearing, June 28, 1920.

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Habeas corpus by W. H. Neisel against D. W. Moran, as sheriff of Dade county. From an order remanding petitioner to the custody of the sheriff, petitioner brings error. Affirmed.

Browne C.J., and Taylor, J., dissenting.

Syllabus by the Court

SYLLABUS

The state Constitution does not require that proposed amendments thereto shall contain express provisions for their submission to the electors of the state for approval or rejection.

Those who assert the unconstitutionality of a statute have the burden of showing that beyond all reasonable doubt the statute inevitably conflicts with some designated provision of the Constitution.

A statute cannot be judicially declared beyond the power of the Legislature to enact unless some provision of the Constitution which is in conflict with it can be specifically pointed to.

The state Legislature has plenary lawmaking power, subject only to the limitations imposed by the state and federal Constitutions, and may enact any anticipatory statutes that are not forbidden by such Constitutions.

Conflict between a statute and organic law do not arise until the statute becomes operative.

Constitutional provisions are designed to effectuate practical government regulated by law, and they should be so interpreted as to accomplish and not to defeat their purpose or to lessen their efficiency.

Original article 19 of the state Constitution was superseded January 1, 1919, by amended article 19, which had been adopted by the electors of the state at the general election held November 5, 1918, to 'go into effect on the first day of January A. D. 1919'; and original article 19 did not forbid the enactment of the statute designated as chapter 7736, entitled 'An act to make effective the nineteenth article of the Constitution of this state, as amended at the general election held November fifth, nineteen hundred and eighteen,' etc., enacted at the special session held in November and December of 1918, and approved December 7, 1918 which statute by virtue of section 18 of article 3 of the state Constitution 'specifically provided in such law,' that it should 'go into effect on the first day of January, A. D. 1919,' the day amended article 19 became effective as organic law.

COUNSEL

R. B. Gautier and Bart A. Riley, both of Miami, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for defendant in error.

Neisel was convicted in the criminal court of record of Dade county upon an information charging, in one count, that on March 21, 1919, he had 'in his possession custody, and control in Dade county, state of Fla., certain alcoholic and intoxicating liquors and beverages, to wit, ninety-seven (97) quarts of whisky,' and, in another count, that on March 21, 1919, in Dade county, Fla., he 'did then and there transport, cause to be transported, and was then and there concerned in the transportation from a point in the state of Florida, to wit, some point located on the Florida East Coast Railroad, running from Jacksonville, Fla., to Miami, Fla., certain alcoholic and intoxicating liquors and beverages, to wit, ninety-seven (97) quarts of spirituous liquor, commonly called whisky,' etc., contrary to the statute. He sought unsuccessfully a discharge from custody by habeas corpus proceedings in the circuit court, upon the ground that the statute on which the conviction is predicated, is unconstitutional and void. The statute is chapter 7736, approved December 7, 1918, acts of an extra session of the Legislature, convened by the Governor, and held beginning November 25, 1918. A writ of error was duly allowed and taken to the order remanding the petitioner to the custody of the sheriff by virtue of the conviction above stated.

The provisions of the Constitution and of the statute to be considered are as follows:

Amendments to the Constitution.

'Either branch of the Legislature, at a regular session thereof, may propose amendments to this Constitution; and if the same be agreed to each house, such proposed amendments shall be entered upon their respective journals with the yeas and nays, and published in one newspaper in each county where a newspaper is published, for three months immediately preceding the next general election of representatives, at which election the same shall be submited to the electors of the state, for approval or rejection. If a majority of the electors voting upon the amendments at such election shall adopt the amendments the same shall become a part of the Constitution. The proposed amendments shall be so submitted as to enable the electors to vote on each amendment separately.' Section 1, art. 17, Constitution of 1885.

Original article 19 of the Constitution is as follows:

'Local Option.
'Section 1. The board of county commissioners of each county in the state, not oftener 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 Amendment to article 19 is:

'Senate Joint Resolution No. 4.

'A joint resolution proposed amendment to the Constitution of Florida.

'Be it resolved by the Legislature of the state of Florida:

'That article 19 of the Constitution of the state of Florida, be and the same is hereby amended so as to read as follows:

'Article 19, section 1. The manufacturel, sale, barter or exchange of all alcoholic or intoxicating liquors and beverages, whether spirituous, 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.

'Approved April 18, 1917.'

See Laws 1917, p. 323.

The above amendment to the Constitution was adopted by the electors of the state at the general election held November 5, 1918.

'Chapter 7736, Acts of 1918.

'An act to make effective the nineteenth article of the Constitution of this state, as amended at the general election held November fifth, nineteen hundred and eighteen, and to prohibit the manufacture, sale, barter or exchange, the transportation into this state, or from one point to another point within the state, and the possession of alcoholic or other intoxicating liquors or beverages,' etc.

'Be it enacted by the Legislature of the state of Florida:

'Section 1. That it shall be unlawful for any person, association of persons, or corporation, or any agent or employé of any person, association of persons or corporation, to manufacture, sell, barter or exchange, or cause to be manufactured, sold, bartered or exchanged, or in anywise to be concerned in the manufacture, sale, barter or exchange, or to transport, cause to be transported, or in anywise be concerned in the transportation, from any point in this state to any other point in this state, or to any point in this state from any point without the state whether in another state, territory, possession of the United States, or foreign country, any alcoholic or intoxicating liquors or beverages, whether spirituous, vinous or malt, except as is hereinafter provided.'

'Sec. 3. That it shall be unlawful for any person, association of persons, or corporation, or any agent or employé of any person, association of persons, or corporation, to have in his, her, their, or its, possession, custody or control, in this state, any alcoholic or intoxicating liquors or beverages, except as is hereinafter provided.'

'Sec 5. That nothing contained in this act shall be construed to make unlawful the manufacture, sale, barter or exchange, or to cause to be manufactured, sold, bartered or exchanged, or to be in anywise concerned in the manufacture, sale, barter or exchange, or to transport, cause to be transported, or to be in anywise concerned in the transportation, from any point in this state to any other point in this state. * * * And nothing contained in this act shall 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 anyway, not exceeding four quarts of distilled alcoholic or intoxicating liquors or beverages and both, but this shall not be construed to permit any such person to possess, have...

To continue reading

Request your trial
37 cases
  • Gaulden v. Kirk
    • United States
    • United States State Supreme Court of Florida
    • July 7, 1950
    ...110 Fla. 29, 148 So. 578; Spencer v. Hunt, 109 Fla. 248, 147 So. 282; State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225; Neisel v. Moran, 80 Fla. 98, 85 So. 346; one will not be heard to question the constitutionality of a legislative enactment except insofar as he may be able to show t......
  • Johnson v. Craft
    • United States
    • Supreme Court of Alabama
    • February 3, 1921
    ...function. But two decisions are cited to the point on brief for appellee, viz. Hatch v. Stoneman, 66 Cal. 634, 6 P. 734, and Neisel v. Moran (Fla.) 85 So. 346. In Neisel-Moran Case, supra, the Constitution itself fixed the "next general election of representatives" as the time for the elect......
  • Tibbetts v. Olson
    • United States
    • United States State Supreme Court of Florida
    • May 3, 1926
    ...... doubt the statute inevitably. [108 So. 687] . conflicts with some designated provision of the. Constitution.' Neisel v. Moran, 80 Fla. 98, 85. So. 346. . . There. is no showing made that the statutes authorizing such decrees. are in conflict with ......
  • Associated Industries of Massachusetts, Inc. v. C. I. R.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 3, 1979
    ...520, 221 P. 808 (1923). See also Druggan v. Anderson, 269 U.S. 36, 39, 46 S.Ct. 14, 70 L.Ed. 151 (1925) (Holmes, J.). Cf. Neisel v. Moran, 80 Fla. 98, 85 So. 341 (1919). Compare Terrebonne Parish School Bd. v. St. Mary Parish School Bd., 242 La. 667, 138 So.2d 104 (1962), with Etchison Dril......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT