State v. Pitts

• Decision Date: 05 April 1909
• Citation: 49 So. 441,160 Ala. 133
• Parties: STATE EX REL. COLLMAN v. PITTS, PROBATE JUDGE. [d1]
• Court: Alabama Supreme Court

49 So. 441

160 Ala. 133

STATE EX REL. COLLMAN v. PITTS, PROBATE JUDGE. ^[d1]

Supreme Court of Alabama

April 5, 1909

On Rehearing, May 11, 1909.

On Rehearing.

Appeal from City Court of Selma; J. W. Mabry, Judge.

Mandamus by the State, on the relation of Arthur Collman, against P H. Pitts, Probate Judge, to compel the issuance of a license to sell liquor. From an order denying the writ, the relator appeals. Affirmed.

Mayfield J., dissenting.

Troy Watts & Letcher and Lee H. Weil, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty Gen., for the State.

ANDERSON J.

The act of 1907 (Sp. Acts, p. 71), known as the "state-wide prohibition law," expressly prohibits the manufacture, sale, etc., of alcoholic, spirituous, vinous, or malt liquors, etc., "within this state." Section 10 provides a penalty for a violation of same, and it is a plain and complete general law, as defined by section 110 of the Constitution of 1901. It is true that section 13 postpones the operation thereof, in certain counties, until the 1st day of January 1909, but it nevertheless applies, with full force and effect, to the entire state.

It is but a question of a few months when it operates throughout the entire state, and without the aid of any additional legislation, and it falls squarely under the influence of the case of State ex rel. Brown v. Porter, 145 Ala. 541, 40 So. 144. It is not dependent upon the more liberal construction given section 110 of the Constitution of 1901 in the case of Covington v. Thompson, 142 Ala. 98, 38 So. 679, in order to fall within the definition of a "general law."

It is insisted, however, that it was rendered a local law by virtue of the proviso inserted in section 11, in that said proviso retains the local or special laws, and thereby must exclude this law from applying to any territory, except what was not then covered by local or special prohibitory laws. This proviso merely prevents a repeal of the special or local laws, in so far as they prohibit the sale or other disposition of any of the liquors mentioned in the first section of the act. The act in question does more than prohibit a sale or other disposition, as it prohibits the manufacture as well, and the proviso does not exclude its operation in any county, in so far as its prohibits the manufacture of liquors, etc., as the local acts are only thereby retained, in so far as they prohibit the sale or other disposition of liquors, etc., as mentioned in the first section. If therefore the local laws do not cover all liquors mentioned in the first section of this act, then they operate only to prohibit the sale of such liquors as therein mentioned, and the present act would apply to those liquors or beverages covered by section 1 and not covered by the local laws. For instance: Many of the local laws may not be as broad as to liquors, beverages, etc., as the act in question. Therefore, when an article is sold or disposed of, which is not covered by the local law but is included in the present act, there would be a field of operation for both laws--the local law as to liquors therein prohibited, and the present act as to liquors therein prohibited, but which are not covered by the local law. It is clear that this act applies to the entire state, to the extent of prohibiting the manufacture, and repeals all laws in conflict therewith to this extent, as none of the local or special laws are retained in force, except in so far as they prohibit a sale or disposition. The law therefore, in this respect, applies to the entire state under any and all conditions, to the wet territory in all respects, and to the dry territory, not only to prevent the manufacture, but to prohibit the sale also, in case the local laws are not as broad as section 1 in the enumeration of the liquors, etc., thereby prohibited. The result is that all the local or special laws can be retained to the exclusion of the present law, in so far as there may be a conflict, and still leave a field of operation for the present law, throughout the entire state, as to one of its chief features, notwithstanding it may not apply and operate in every part thereof in its every detail. If a law applies to the whole state, it is a general law, as defined by section 110 of the Constitution of 1901, and would not be converted into a local one simply because it was limited as to certain parts thereof in some of its details. Here we have a law which applies to the whole state in some of its major parts, without the aid of additional legislation, but of its own force and effect, and notwithstanding the retention of the local laws for the purposes provided in section 11. Such a law, as was dealt with in the case of Covington v. Thompson, 142 Ala. 98, 38 So. 679, and which did not need additional legislation to enable it to operate in its major parts in every county in the state, and so much as was said, in that case, to the effect that when there are special laws already in operation, which must be repealed before the law can become operative, it is nevertheless a general law, was not decisive of said case, as the law there considered applied to the whole state and operated in every county, in its material parts. It needed no additional legislation to make it apply to the whole state, but did so of its own force and effect, as does the law in question.

It is next insisted that so much of the proviso of section 11 as provides for a concurrent operation of this law with the local laws and authorizes prosecutions under either for the same offense, notwithstanding the punishment is different, is repugnant and void; that it contemplates the impossible, or, if such a thing as it does contemplate is possible, that it is a denial of equal protection of the law. In the recent well-considered case of State v. Skeggs (Ala.) 46 So. 268, this insistence was construed as pertaining to the administrative feature of the law and which would not lead to its constitutional invalidity. We may here add that, even if so much of said proviso as pertains to the concurrent operation and prosecutions thereunder is void, it could well be stricken without impairing the validity of the rest of the law, as we would have a good and complete law with this much of it excluded. Bradley v. State, 99 Ala. 177, 13 So. 415; State v. Davis, 130 Ala. 148, 30 So. 344, 89 Am. St. Rep. 23. "If by striking out a void exception, provision, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in

accord with the legislative intent, and the whole would be made void by the invalidity of such part." Lewis, Sutherland's Stat. Const. § 306. The subject of the present law is not changed or enlarged by the elimination of this much of the provision, nor is the territory over which it operates enlarged, and said portion of the provision can be well discarded and no violence done the legislative intent by a retention of the rest of the act.

The fact that local laws were passed, on this subject, subsequent to the passage of the act in question, or that some were approved on the same day as this one, could not change it from a general to a local law, for in passing on the requirements of sections 106 and 110 of the Constitution of 1901 they must be considered in reference to the law as enacted, in and of itself, and not in connection with other separate and distinct laws dealing with the same subject and which might operate as a repeal of some parts of the law then considered. As enacted it was a general law, and the fact that certain local laws were passed at the special term, as to Lee and a few other counties, could in no way impair its generality at the time of its enactment. The constitutional provisions must be considered as applicable to each separate and distinct law, and not to a combination of various and sundry laws passed at the same session, or the same day, for that matter. The House Journal shows a compliance with section 64 of the Constitution of 1901. The amendment adopted was entered at length, as well as the names of those voting for and against the same. It is true, several amendments were reported, and each of them seems to have been adopted, and collectively they became an "amendment" to the bill. Notwithstanding they may have been separately offered or reported, yet the House had the right to vote upon them in their entirety, and when so adopted they constituted a single amendment.

Section 45 of the Constitution of 1901, among other things, provides that bills shall be divided into sections for convenience. The Journal recites that section 10 was stricken, and the section as set out was substituted therefor. This substituted section was placed between sections 9 and 11 and is preceded by the proper number. It is contended that the number was not properly there, because not appearing as a part of the substitute, that when the section was stricken the number went with it, and, as it does not appear in the substituted section, was improperly placed in the bill. The striking out of the section did not necessarily carry the number with it. The number was not of the contents or substance of the section, was put there to designate the section stricken, and could well remain and designate the substituted one. The striking out of the alternative or repeating part of section 12, by the Senate, was but an immaterial correction, and did not in the slightest degree amend or change the bill, no more than to have stricken out a repetition of the same word. The Journal sufficiently shows that the bill was acted upon by the temperance committee and was returned and reported upon.

The judge of the city court properly declined to...