State v. Skeggs

Citation46 So. 268,154 Ala. 249
PartiesSTATE EX REL. WOODWARD v. SKEGGS, JUDGE OF PROBATE. MEYER v. GREEN, JUDGE OF PROBATE.
Decision Date09 April 1908
CourtSupreme Court of Alabama

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Mandamus by the state, on relation of M. E. Woodward, against William E. Skeggs, judge of probate, and by Ben Meyer against Samuel E. Green, judge of probate, to compel the issuance of licenses to sell liquor. From judgments denying peremptory writs, plaintiffs appeal. Affirmed.

Tillman Grubb, Bradley & Morrow and Gregory L. Smith, for appellant Meyer. John C. Eyster and Geo. H. Parker, for appellant Woodward. Samuel D. Weakley, for appellee.

McCLELLAN J.

These appeals, involving identical questions, were argued and submitted together, and are presented from judgments denying peremptory writs of mandamus to compel the judges of probate of Morgan and Jefferson counties to issue to the respective petitioners licenses to sell spirituous, vinous, or malt liquors. The petitioners assume that what are commonly called the state prohibition law and the local option low are barriers to the granting of the relief sought, unless these laws are constitutionally invalid. The petitioners therefore assail both enactments upon grounds of asserted unconstitutionality, and these objections will be stated and the points taken decided in so far as they attack the state prohibition law, omitting entirely consideration of those assigned against the validity of the local option law, for the reason that section 13 of the former act, if otherwise valid, became effective in Morgan and Jefferson counties where elections were held prior to December 12, 1907, on January 1, 1908. In denial of the correctness of this conclusion, counsel for the appellants insist that the term "election," as used in section 13, contemplates a "valid" election, under a valid, as distinguished from an "invalid," election resulting in those counties, if the local option law is unconstitutional.

As here important, section 13 reads: "Provided that in all counties in which an election shall have been held on or before the 12th day of December, 1907, under the provisions of the county local option law, approved February 26th, 1907 to determine whether or not liquors shall be sold therein, under any act of the Legislature of Alabama heretofore passed, at which election it shall have been determined that liquors shall not be sold. * * *" To accord to this proviso the construction urged for appellants, it is perfectly evident that the quoted provision must be taken to provide that the state prohibition law should become effective on January 1, 1908, in those counties where under the local option law the sale of liquors would be legally prohibited. In other words, that the condition to the going into effect of the state prohibition law on January 1, 1908, should be that another law mentioned, having a like effect, would prohibit the sale of liquors therein on and after that date. We can draw from the section no such intent. On the contrary, the condition borne by the proviso quoted is clearly stated, in short, to be an expression, within its terms, of the will of the majority on the question of sale vel non of liquors in the described territory. If it had been the purpose to declare, as appellants contend, surely the Legislature would not have committed the announcement of that purpose to a phrasing that refers only to the election and not to the legally efficacious operation and effect of a then existing enactment. And it may be added that, if only an election held under a valid law was contemplated, why was not the apt word "valid" employed to state the intent?

It is conceded that elections under the local option law were held, in Morgan and Jefferson counties, on or before December 12, 1907, and that the majority vote in each was against the sale of liquors in those counties. It follows, we think, that the condition to the going into effect on January 1, 1908, of the state prohibition law in the counties of Morgan and Jefferson, does not import more than an election--an expression of the popular will--which was had in both the counties named. Hence whether the local option law be valid or invalid is not a vital inquiry on this appeal.

In entering upon a properly invited investigation of the constitutionality of legislative acts, this court has, as it should, borne constantly in mind: First, that the Constitution is a limitation, not a grant, of power; second, that its mandates are the supreme law to the legislative, executive, and judicial departments of this government; third, that the propriety and wisdom of enactments by the lawmakers are questions peculiarly and exclusively within the decisive right of that department, and, if the act under investigation contravenes no provision of the organic law, the judiciary is without rightful power to review the legislative determination of the wisdom and propriety of the action taken; and, fourth, that every enactment is presumptively constitutional, and therefore valid, and he who assails it assumes the obligation to demonstrate beyond a reasonable doubt its violation of the fundamental law.

The state prohibition law is a product of the special session, 1907, of the Legislature, which convened in obedience to the proclamation of the Governor. This law was not within those subjects of legislation specifically enumerated in the proclamation as requiring, in the judgment of the executive, the more immediate action of the Legislature. The matter of the prohibition or regulation of the sale of intoxicants within the state at that special session was subject to the conditions defined by section 76 of the Constitution of 1901, which is: "When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, except by a vote of two-thirds of each House. Special sessions shall be limited to thirty days." Appellants predicate their primary objection to the validity of the act upon this section, and insist that the term "House," as therein employed, intends the entire elected membership of each branch of the Legislature, as distinguished from a "quorum," expressly authorized by section 52 of the Constitution of 1901 to transact business; it being uncontroverted that in the lower branch the vote in favor of the law was less than two-thirds of the entire membership of that body.

The word "House" repeatedly occurs in the organic law, and, as far as we are now advised, has reference, in varying senses, to three entities, viz., the place of legislative session, the total elected membership of the one or the other branch of that department, and the body, whether upper or lower, as legally constituted to perform its legislative functions. An examination of the whole instrument, in obedience to the well-recognized rule of construction, shows, we think, a clear purpose, on the part of the makers of the Constitution, to leave no doubt in which of the two latterly mentioned senses the term, in the connection employed, was intended to be used. Section 52 provides that a "majority of each House shall constitute a quorum to do business. * * *" Certainly the word "House," as thus employed, means the entire membership of each body. It denotes the maximum number of members of each body of which a majority shall constitute the House for the transaction of business. After so expressly providing, and unless a greater proportion of the respective membership of the branches is required by unmistakable language, the term "House" can only intend such number present or voting, as the case may be, as would make a quorum for the stated transaction in business. Otherwise stated, the word "House" imports, unless qualified by the context, a "quorum" as defined by section 52. In at least four instances the Constitution specifically provides that a named proportion of the entire elected membership of each House shall favor legislation, along stated lines, as a prerequisite to the valid enactment of the proposed law. These instances are to be found in sections 125, 173, 284, and 286. The instrument abounds in other instances where the word "House" is employed without the qualification just mentioned. From this it necessarily results that, in order to adopt the construction of section 76, for which appellants contend, we must interpolate the expression present in the four sections above enumerated. Of course, this cannot be done without violating, in this regard, the manifest intention of the makers of the Constitution. This question, in substance, has received the consideration of the courts of last resort in other jurisdictions, and we find in them abundant authority, proceeding upon sound reason, for the conclusion reached by us. It will suffice to merely cite them: Southworth v. Railway, 2 Mich. 287; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; Zeiler v. Railway Co., 84 Md. 304, 35 A. 932, 34 L. R. A. 469; Atkins v. Phillips, 26 Fla. 281, 8 So. 429, 10 L. R. A. 158; Green v. Weller, 32 Miss. 650.

It is further urged that the term "legislation," as employed in section 76, embraces every constitutionally required step in the enactment of a proposed law, and hence that the provision for a two-thirds vote of each House applies to forbid even the introduction of a bill not within the subjects specifically designated in the proclamation unless that proportion of the respective Houses sanction it. The word "legislation" occurs but twice in the Constitution. It is employed in sections 76 and 246. In the latter it is used in this context: "No railroad * * * shall have the benefit...

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