Pine v. Commonwealth

Citation93 S.E. 652
PartiesPINE et al. v. COMMONWEALTH.
Decision Date20 September 1917
CourtSupreme Court of Virginia


Error to Corporation Court of Roanoke.

John Pine and Sarah Scott were convicted of a violation of the prohibition act, and they bring error. Affirmed.

Hoge & Darnall, Lawson Worrell, and A. J. Oliver, all of Roanoke, for plaintiffs in error.

The Attorney General, for the Commonwealth.

BURKS, J. The plaintiffs in error were indicted, tried, and convicted under the prohibition act (Acts 1916, p. 215). The indictment was framed under section 7 of the act, which, so far as necessary to be quoted, is in the following words:

"Sec. 7. While any good and sufficient indictment may be used, an indictment for any first offense under sections three, four and five, of this act, shall be sufficient if substantially in the form or to the effect following:

" 'State of Virginia, County of......, to wit:

" 'In the Circuit Court of......County.

" 'The grand jurors in and for the body of said county of...... and now attending said court at its......term, nineteen......, upon their oaths, do present that.......within one year next prior to the finding of this indictment, in the said county of......, did unlawfully manufacture, sell, offer, keep, store and expose for sale, give away, dispense, solicit, advertise and receive orders for ardent spirits, against the peace and dignity of the commonwealth of Virginia.' "

The indictment contains but one count, and that is in the language of the statute. The defendants demurred to the indictment, but their demurrer was overruled, and this action of the court is assigned as error. The demurrer raised the question of the constitutionality of the act. One of the grounds of unconstitutionality is that it violates section 62 of the Constitution, hereinafter quoted. There is nothing in the record to indicate that this objection was made in the trial court. It was not made in the petition for the writ of error, nor referred to in the brief for the commonwealth, but was made for the first time in the reply brief for plaintiffs in error. This, however, is immaterial. Every indictment is based upon the existence of a valid law annexing a penalty to the offense charged. If that law is unconstitutional, it is void. It is no law at all, and there is no penalty to inflict So soon, therefore, as this fact is brought to the attention of the court in any way, whether by demurrer, plea, motion, or otherwise, the case is at once dismissed, as there is no offense to be punished. It need not be specially pleaded. This rule applies to the appellate court as well as the trial court, although the point is made in the appellate court for the first time. Adkins v. City of Richmond, 9S Va. 91, 34 S. E. 967, 47 L. R. A. 5S3, 81 Am. St. Rep. 705, and cases cited.

The constitutionality of the act is challenged on the ground that the whole legislative power over intoxicating liquors is declared by section 62 of the Constitution, and that under the rule, "Expressio unius est exclusio alterius, " the granting of certain powers is the exclusion of all others. What powers the Legislature has exercised which have not been granted have not been pointed out. The clause of the Constitution referred to is as follows:

"The General Assembly shall have full power to enact local option or dispensary laws, or any other laws, controlling, regulating, or prohibiting the manufacture or sale of intoxicating liquors."

The maxim, "Expressio unius est exclusio alterius, " though often of importance and value, is not of universal application, even in the interpretation of state Constitutions. They are the fundamental, permanent law of the land, providing for the future as well as the present, and should carry out the principles of government as gathered from the instrument when read as a whole. The application of arbitrary rules of construction will be resorted to with hesitation, especially when it would bring about results contrary to the declared public policy of the state, and hamper the Legislature in amply providing for the health, morals, safety, and welfare of the people. Only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned, in view of the known policy of the state, will be considered as prohibiting the powers of the Legislature. The principle of the maxim should be applied with great caution to those provisions of the Constitution which relate to the legislative department, and the exclusion should not be made unless it appears to be a plainly necessary result of the language used. Schubel v. Olcott, 60 Or. 503, 120 Pac. 375; State v. Martin, 60 Ark. 343, 30 S. W. 421, 28 L. R. A. 153; Sumpter v. Duffle, 80 Ark. 369, 97 S. W. 435: State v. Bryan, 50 Fla. 293, 39 South. 929.

In determining whether an act of the Legislature is forbidden by the state Constitution, it must be borne in mind that the Constitution is not a grant of power, but a restriction upon an otherwise practically un-limited power; that the Constitution is to be looked to, not to ascertain whether a power has been conferred, but whether it has been taken away; that the Legislature is practically omnipotent in the matter of legislation, except in so far as it is restrained by the Constitution, expressly or by plain, or (as some of the cases express it) by necessary, implication; that the mere enactment of a law is a legislative declaration of the necessary constitutional power, which is entitled to great respect from a co-ordinate department of the government; that every act is presumed to be constitutional until the contrary is made plainly to appear; and that all doubts on the subject are to be solved in favor of its validity. These principles and these presumptions are not of mere local application, but are common to practically all of the states. Authority is so abundant as to be easily found, and it would unnecessarily burden this opinion to do more than cite a few of the late cases by way of illustration. Button v. State Corporation Commission, 105 Va. 634, 54 S. E. 769; Henry's Case, 110 Va. 879, 65 S. E. 570, 26 L. R. A. (N. S.) 883; McGrew v. Mo. Pac. R. Co., 230 Mo. 496, 132 S. W. 1076; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251; People v. Prendergast, 202 N. Y. 188, 95 N. E. 715; Imp. Irr. Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322; Scown v. Czarnecki, 264 Ill. 305, 106 N. E. 276, L. R. A. 1915B, 247, Ann. Cas. 1915A, 772; State v. Patterson, 181 Ind. 660, 105 N. E. 228; Eckerson v. Des Moines, 137 Iowa, 452, 115 N. W. 177; Bullitt v. Sturgeon, 127 Ky. 332, 105 S. W. 468, 14 L R. A. (N. S.) 268; Evers v. Hudson, 36 Mont. 135, 92 Pac. 462.

On no subject have the Legislatures been given a freer hand than in dealing with intoxicating liquors. It has been so far regarded as an enemy of mankind that the most drastic legislation to suppress its use by the public has been upheld by the courts. We cite a few cases simply as illustrations: Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; James Clark Distilling Co. v. Western Mo. R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218; Express Co. v. Whittle, 194 Ala. 406, 69 South. 652, L. R. A. 1916C, 278; Delaney v. Plunkett (Ga.) 91 S. E. 561; State v. Phillips, 109 Miss. 22, 67 South. 651, L. R. A. 1915D, 530; Glenn v. Southern Express Co., 170 N. C. 286, 87 S. E. 136. For collection of cases, see 17 Am. & Eng. Ency. Law (2d Ed.) 207 et seq.

In this state, from the earliest date to the adoption of the present Constitution, the Legislature has exercised uncontrolled power over the manufacture and sale of intoxicating liquors, and, since local option and dispensary laws have come into vogue, has exercised undisputed authority and control over these subjects also. In view of these facts it would require very plain language to convince us that it was the purpose of the constitutional convention to take away from the Legislature of this state a power exercised by the Legislatures of the other states of the Union, and one that has been within the province of the Legislature of this state from the earliest date.

The constitutional provisions relating to the legislative department have been classified as mandatory and prohibitive. The oaths of the legislators bind them to the performance of the one, and the courts restrain them from the performance of the other, if they should overstep the limits set. As to all other powers they are free to act as their judgments dictate.

"In the partition of power between the three departments of government, the power of making laws is conferred on the General Assembly; some laws they are compelled by mandate to make; other laws they are forbidden to make; these are the only limits to their powers; all subjects of legislation not affected by mandate, nor by prohibition, are within the discretion of the General Assembly." Commonwealth v. Drewry, 15 Grat. (56 Va.) 1, 5.

As the Legislature has all legislative power not taken away by the Constitution, it would seem that the classification into mandatory and prohibitive provisions was in the main correct. Constitutions, however, sometimes contain other provisions relating to or affecting the legislative department, which may be classified as either permissive or declaratory. This is especially true of modern Constitutions which enter into greater detail and more nearly approximate legislation than formerly. Indeed, some of their provisions are purely legislative in character. When the Constitution has fully dealt with a subject and covered the entire ground, the Legislature would be powerless to make any change in it, unless specially authorized to do so, and it may be desirable to confer such authority. In such case the authority is conferred by a permissive grant in the Constitution. McCurdy v. Smith, 107 Va....

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