State v. Montgomery

• Citation: 59 So. 294,177 Ala. 212
• Parties: STATE EX REL. CRUMPTON v. MONTGOMERY ET AL., EXCISE COM'RS.
• Decision Date: 09 May 1912
• Court: Supreme Court of Alabama

59 So. 294

177 Ala. 212

STATE EX REL. CRUMPTON v. MONTGOMERY ET AL., EXCISE COM'RS.

Supreme Court of Alabama

May 9, 1912

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Quo warranto by the State, on the relation of W. B. Crumpton against Arthur H. Montgomery and others as Excise Commissioners. From a judgment for defendants, plaintiff appeals. Affirmed.

S. D Weakley, of Birmingham, and J. M. Chilton, of Montgomery, for appellant.

R. B Evins, of Greensboro, and Steiner, Crum & Weil, of Montgomery, for appellees.

McCLELLAN J.

This proceeding in the nature of quo warranto, instituted by the state on the relation of W. B. Crumpton, is to test the right of Montgomery, Hails, and Banks to occupy and exercise the powers and privileges of "excise commissioners" and of the "excise commission" in the county of Montgomery, state of Alabama. The prayer of the petition is that the respondents, Montgomery, Hails, and Banks, be required "to show by what warrant or authority they claim the right to hold said offices, respectively, and to exercise the powers and privileges thereof and the rights and powers of the excise commission, and that on final hearing judgment be entered ousting said defendants from said respective offices."

Quo warranto is, in this state, the legal, proper means to test and determine the rights upon which the prayed judicial power would operate. Code, § 5453; Montgomery v. State ex rel., 107 Ala. 372, 18 So. 157; Jackson v. State ex rel., 143 Ala. 145, 42 So. 61.

As appears from the prayer of the petition, from the particular object of the proceeding, the questions raised are: First, are there such offices in legal existence as those to the exercise of which the respondents assert claim; and, second, if such offices legally exist, are these respondents the validly chosen incumbents thereof? The petitioner's general theory is that these offices do not legally exist, and are hence legally incapable of occupancy by respondents, because of the constitutional invalidity of the legislation to which their creation is attributed--the legislation by which the establishment of these offices purports to have been effected. The petition assumes, in averment, the task of enumerating the particulars in which this legislation violates the fundamental laws of this state and of the United States, and these objections to its validity are very numerous.

It is the established rule of this court to decline to pass upon the constitutional validity of legislative enactments, unless the determination of the questions and rights then before it requires their decision. Smith v. Speed, 50 Ala. 276; Bray v. State, 140 Ala. 172, 179, 37 So. 250; Hill v. Tarver, 130 Ala. 592, 30 So. 499. It is of course a corollary of this rule, arising from the reason of the rule itself, that, where several or many constitutional questions are presented by the record, that or those only will be considered or determined which is or are necessary to the adjudication of the controversy. In short, this court will not decide any constitutional question respecting the validity of legislation, unless its decision thereupon is "indispensable" to the determination of that litigation. Wisdom and a just respect for the Legislature suggest and approve these rules. If, as will later appear is the partial condition on this appeal, litigants may raise upon a record any and many constitutional questions, and if, on appeal, this court should assume the burden and obligation of response to all of them, whether decisive of the appeal or not, we should then have a process of mere interrogation of this court, and, in many instances, the determination, in the given case, of moot questions, very like, if, indeed, not identical with, the procedure, in some jurisdictions, of official propounding to the highest tribunal of questions affecting the validity of legislation. Favorable and prone as are the judges to respond to diligent, able, and instructive discussions of counsel of even immaterial questions presented by a record, this court cannot and will not adopt the procedure to which the stated process would lead.

Another and equally wise restriction which this court always recognizes in respect of constitutional questions, presented in opposition to presumptively valid legislation, is thus expressed in Shehane v. Bailey, 110 Ala. 308, 20 So. 359: "Nor will a court listen to an objection made to the constitutionality of an act of the Legislature by a party whose rights it does not specially affect. An act of the Legislature will be assumed to be valid until some one complains whose rights it invades, and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights, that the objection of unconstitutionality can be presented and sustained."

We have taken the pains to state above the exact major grounds, two in number, upon which the ouster of these respondents is sought, with a particular view to subsequent elimination of questions argued that do not have controlling bearing upon the valid existence vel non of the office of excise commissioner, and, in sequence, upon the lawfulness vel non of the respondents' respective incumbency thereof.

When the Legislature of 1911 assembled, this state was subject to the provisions of what was commonly called the "state-wide prohibition law." The traffic in intoxicants was prohibited throughout the state. From common knowledge we know, as all do, that, through the selection by the electorate of the chief executive to take office in January, 1911, the public will was understood to be that the state should adopt the policy of "local option"--should depart from the policy of state-wide prohibition. The policy of the state theretofore obtaining did not contemplate or permit the exemption, at any time or under any circumstances, of any political subdivision of the state from the operation of the state-wide prohibition of the traffic, nor, of course, did the policy comprehend as a chief factor any regulation of the traffic. With the elder policy then prevailing and the policy of local option treatment and regulation of the traffic foreshadowed, at least in degree, the Legislature entered upon the task of changing the state's statutory policy so as to vest in the electorate of the county, as a unit, the option of having the traffic restored therein, and, if to be restored, to prescribe the methods for the control of the manufacture and disposition of intoxicants. Such, to state the matter most generally, was the legislative theory and intent when the "Parks" and "Smith Bills" passed through the forms of enactment, as the petition admits. The "Parks Bill" was approved February 21, 1911. Gen. Acts 1911, pp. 26-31. The "Smith Bill" was approved April 6, 1911. Gen. Acts 1911, pp. 249-288. Reference to them, in this opinion, by these commonly-accepted designations will be continued.

For the purposes of a general understanding and statement of the respective objects of these enactments, it will suffice to quote at this point their respective titles: Parks Bill: "An act to submit to the qualified electors of each of the counties in this state the question of whether or not the manufacture and sale of spirituous, vinous or malt liquors shall be legalized therein; and whether or not such liquors shall be sold by dispensaries or by private dealers under a license." Smith Bill: "An act to regulate the manufacture, sale and other disposition of spirituous, vinous and malt liquors in the incorporated towns and cities in the state of Alabama whenever such manufacture, sale or other disposition is authorized at and by an election by the qualified electors of the county in which such town or city is situated, for determining in and by such elections whether the sale of such liquors shall be by dispensary or by private dealers under license; to regulate the establishment and operation of such dispensaries as may be so authorized; to provide for the creation of an excise commission in such cities or towns in which the manufacture and sale of said liquors are authorized as herein provided; to prescribe the power and duties of such excise commission wherein the manufacture and sale of said liquors under license is authorized as herein provided; to prescribe the amount of license taxes to be paid by each licensee and the respective portions of the net revenue of each dispensary to be paid, respectively to the state, city or town operating the same, and the county in which the same is operated; to require a bond of each licensee and prescribe its office, purpose and liabilities; to prohibit the manufacture, sale, barter, exchange or giving away to induce trade of said liquors, or any other intoxicating liquors or beverages in the state of Alabama, except as authorized by this act, and under a license obtained and held as in this act provided and to make unlawful and to prescribe penalties and punishments for all violations of this act."

It appears that the Legislature separated into two enactments the conditional restoration and regulation, if restored, of the traffic (including, for convenience, in the term the manufacture as well) to the counties of the state. In the first--the Parks Bill--the question of choice of the electorate whether the traffic (including manufacture) should prevail in the county was the general legislative intent and, if so, then, secondarily, whether the sales should be conducted through the means of the license system or of dispensaries. In the second--the Smith Bill--the regulation of the manufacture and sales, if such was the choice of the electorate, was the general legislative intent; the restrictions...