State ex rel. Wilkinson v. Murphy

• Decision Date: 31 January 1939
• Docket Number: 6 Div. 431.
• Citation: 186 So. 487,237 Ala. 332
• Parties: STATE EX REL. WILKINSON v MURPHY.
• Court: Alabama Supreme Court

186 So. 487

237 Ala. 332

STATE EX REL. WILKINSON v MURPHY.

6 Div. 431.

Supreme Court of Alabama

January 31, 1939

Rehearing Denied Feb. 21, 1939.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Quo warranto proceeding by the State of Alabama, on the relation of Horace C. Wilkinson, against M. H. Murphy, as a member or associate member of the Alabama Alcoholic Beverage Control Board, in which A. A. Carmichael, as Attorney General intervened in behalf of the State and such board. Judgment for defendant, and plaintiff appeals.

Affirmed.

KNIGHT J., dissenting.

Horace C. Wilkinson, of Birmingham, for appellant.

A. A Carmichael, Atty. Gen., Marvin Woodall, D. K. McKamy, Benj. Leader, John D. Hill, Jack Crenshaw, Sp. Asst. Attys. Gen., and Thos. S. Lawson, Wm. H. Loeb, and Silas C. Garrett, 3d, Asst. Attys. Gen., for appellee and intervener.

GARDNER Justice.

The quo warranto proceeding is rested upon the theory that the Alabama Alcoholic Beverage Control Act (General Acts, Extra Session 1936-37, page 40) is void as violative of section 93 of our State Constitution, the here material provisions of which read as follows: "The state shall not engage in works of internal improvement, nor lend money or its credit in aid of such; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation."

The courts, in the exercise of their power to annul a statute which contravenes the organic law, have uniformly recognized that the power is a delicate one, and to be used with great caution. And it must be borne in mind also that legislative power is not derived from either the State or Federal Constitution. These are only limitations upon power. Apart from the limitations imposed by these fundamental charters of government, the power of the legislature has no bounds, and is as plenary as that of the British Parliament.

Or to state it differently, all that the legislature is not forbidden to do by the organic law, state or federal, it has full competency to do. And in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a co-ordinate branch of the government. All of which is embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond a reasonable doubt that it is violative of the fundamental law. Gray v. Johnson, 235 Ala. 405, 179 So. 221; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231; Miller v. Marx, 55 Ala. 322.

Relator insists that the term "works of internal improvement" employed in section 93 of the Constitution, refers to a broad principle as to the State's engagement in trade and commerce, and not to any particular species of internal improvement, and that the system of State liquor stores established by the Act here in question constitutes a work of internal improvement within the meaning of section 93 of the Constitution thus interpreted. Or, if not within the meaning of that term, that the establishment of State liquor stores is violative of the succeeding phrase "nor shall the state be interested in any private *** enterprise."

Briefs for the respective parties to this litigation contain interesting and instructive discussions of the causes leading to the inclusion of these provisions in our organic law. It is a regrettable part of the history of our State, and no detailed consideration of those causes need here be given. The unfortunate experience, both as to the banking business and the lending of the State's credit to railroad construction, is well known to all. Relator's brief quotes liberally from Government Experimentations in Business, pages 58-90, by Prof. Warren M. Persons, wherein much detail information on this subject may be found. See, also, Mayor, etc., Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611, and Garland v. Board of Revenue of Montgomery, 87 Ala. 223, 6 So. 402.

We think it clear enough these experiences resulted in the inhibitions of what is now section 93 of our Constitution. Like reasons motivated the inclusion in our organic law of what is now section 253, Constitution of 1901, prohibiting the State from becoming a stockholder in any bank.

Defendant insists that by reason of these historic facts the words "works of internal improvement" in section 93, supra, should be construed as having reference only to channels of trade and commerce, such as canals, turnpikes, railroads, and the like, citing Shenandoah Lime Co. v. Mann, 115 Va. 865, 80 S.E. 753, Ann.Cas. 1915C, 973.

But the language of our Constitution is broad and comprehensive. There are no restrictions or limitations, and we are unwilling to so interpret this provision of our Constitution so as to attach such an exception thereto. We are inclined, however, to agree with defendant that these words have reference to improvements of a more or less fixed and permanent character. Ellis v. Common Council, 123 Mich. 567, 82 N.W. 244; Bird v. Common Council, 148 Mich. 71, 111 N.W. 860; In re Internal Improvements, 18 Colo. 317, 32 P. 611; State v. Dammann, Wis., 280 N.W. 698; Shenandoah Lime Co. v. Mann, 115 Va. 865, 80 S.E. 753, Ann.Cas.1915c, 973; Penn Iron Co. v. Wm. R. Trigg Co., 106 Va. 557, 56 S.E. 329; Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600, 51 L.Ed. 1047, 11 Ann.Cas. 589.

We think it clear, therefore, that the operation of the State liquor stores would not come within the influence of the term "works of internal improvement."

Defendant further argues that the words, "nor shall the state be interested in any private *** enterprise," mean merely that the State shall not be interested with individuals, associations or corporations in the operation of a private or corporate enterprise, and was not intended to prevent the State itself from engaging in a private enterprise.

But we think this too narrow a construction of the Constitution, and clearly out of harmony with the motivating cause of the inclusion of this prohibition in our organic law. The interest referred to is a pecuniary interest in any private or corporate enterprise, and this prohibition was, we think inserted in our organic law as a limitation upon the power of the legislature to again place our State in business enterprises and in competition with private individuals or corporations; or to undertake those things which ordinarily might, in human experience, be expected to be undertaken for profit or benefit to private promoters.

And we are of the opinion it is quite broad enough to embrace a business operated solely by the State for trade and traffic.

The sole remaining question, therefore, is whether or not the operation of the State liquor stores, as provided by this Act, is within the influence of this term as used in section 93 of our Constitution.

The numerous authorities noted by relator upon the question at hand have been read and considered with care in the light of the ingenuous argument in his briefs. Among them are the following: Rippe v. Becker, 56 Minn. 100, 57 N.W. 331, 22 L.R. A. 857; State v. Froehlich, 115 Wis. 32, 91 N.W. 115, 58 L.R.A. 757, 95 Am.St. Rep. 894; Traver v. Merrick County, 14 Neb. 327, 15 N.W. 690, 45 Am.Rep. 111; Minnesota Sugar Co. v. Iverson, 91 Minn. 30, 97 N.W. 454; State ex rel. Coleman v. Kelly, 71 Kan. 811, 81 P. 450, 70 L.R.A. 450, 6 Ann.Cas. 298; People ex rel. Bay City v. State Treasurer, 23 Mich. 499, 506; Attorney General v. Pingree, 120 Mich. 550, 79 N.W. 814, 46 L.R.A. 407; Northwestern Tel. Exch. Co. v. Chicago R. Co., 76 Minn. 334, 79 N.W. 315; In re Senate Resolution, 12 Colo. 287, 21 P. 484; Sundquist v. Fraser, 154 Minn. 371, 191 N.W. 931; State v. Donald, 160 Wis. 21, 151 N.W. 331; Dodge v. Mission Twp., 8 Cir., 107 F. 827, 54 L.R.A. 242; Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307; Sheppard v. Dowling, 127 Ala. 1, 28 So. 791, 85 Am.St.Rep. 68; State Docks Comb. Barnes, 225 Ala. 403, 143 So. 581; Lipinski v. Gould, 173 Minn. 559, 218 N.W. 123, 730; In re Opinion of Justices, 118 Me. 503, 106 A. 865; In re Opinion of the Justices, In re Municipal Fuel Plants, 182 Mass. 605, 66 N.E. 25, 60 L.R.A. 592; Union Ice & Coal Co. v. Ruston, 135 La. 898, 66 So. 262, L.R.A.1915B, 859, Ann. Cas.1916C, 1274; Opinion of Justices, 211 Mass. 624, 98 N.E. 611, 42 L.R.A.,N.S. 221; Hill v. Rae, 52 Mont. 378, 158 P. 826, L.R.A.1917A, 495, Ann.Cas.1917E, 210; White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397; Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; Southern Ry. Co. v. Hartsborne, 162 Ala. 491, 50 So. 139.

A discussion of these several authorities would of course extend this opinion to undue length. Suffice it to say that in large part they deal with a character of business in no manner related to the question of intoxicating liquors. We have no quarrel with any of them. A few illustrations will serve the purpose. The Rippe Case, supra, involved the question as to whether or not the construction of a state grain elevator was within the constitutional prohibition against the state engaging in works of internal improvement. The answer was that it was so prohibited. But, at the very outset, the court in the opinion said, 57 N.W. 333: "It seems to us as plain as words can make it--too plain to admit of argument--that the provisions of this act have no relation or reference whatever to the exercise of the police power to regulate the 'grain elevator' business." Accepting this statement for its face value, it is clear enough the holding is of little value on the question before us.

Likewise as to the construction of a street...