State v. Murphy , 237 Ala. 332 ( 1939 )

I cannot bring myself into accord with the holding of the majority in this case, as expressed in the foregoing opinion of Mr. Justice GARDNER. My views on the constitutional question here presented are so fixed, and deeply rooted, that I feel impelled to register my dissent.

So far as I know, no man doubts the right of the state, when speaking through its mouth-piece, the Legislature, to legalize and regulate, or to prohibit, by suitable laws, duly and constitutionally adopted, the sale of intoxicating liquors.

But the right to legalize and regulate the sale of intoxicating liquors is one thing, and the right of the state, within present constitutional limitations, to engage in the business of selling such liquors, under the guise of regulation, is quite another and different question.

The writer has always thought, and he still belongs to that school of thought, that the Constitution stands for, and means something in the life of a people and of a state. Especially is this true under a representative government.

Under our system and form of state government, the Constitution is a bridle, a limitation, upon the Legislature. In short, it is the peoples' Magna Charta, reflecting their will, expressed in their own chosen language, and is the supreme law of the state.

The Constitution means what it says and says what it means.

Section 93 of the Constitution reads, so far as here pertinent: "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."

Plain language, it would seem. In an unbroken line of cases this court has steadfastly held that when a contract, a statute, or constitutional provision, is plain in its meaning, certain in its terms, and free of ambiguity, there is no room for judicial construction, and certainly no justification forjudicial amendment.

The effect of the majority holding in this case is to write into Section 93 of the constitution a provision or exception reading: "Provided that the Legislature may establishthroughout the state, or in any of the counties thereof, liquorstores, where, in the name of the state, and to supply revenuefor the state, spirituous, vinous or malt liquor may be sold atwholesale or retail."

But the majority say, in effect, that this is one of the ways that the state may regulate, for the best interest of the people, the sale of this harmful beverage. That the state may do this under its police power. This argument is plausible, but fundamentally unsound.

There is no man at all conversant with contemporary utterances, who does not know that it was not regulation, butrevenue, which inspired the State Liquor Store legislation.

But back to the police power theory as furnishing support for this legislation. It is everywhere recognized, and nowhere doubted, that the police power of the state cannot extend beyond the limits of the Constitution. It must be exercised within the Constitution. Its north, east, south and west boundaries are the Constitution.

Section 93 of the Constitution is certainly a limitation upon this power, when, by its express terms, the state is prohibited from being "interested in any private or corporateenterprise."

That this legislation cannot be sustained upon the theory of the exercise of the state's police power, I have the very highest authority. I quote the language of the Supreme Court of the United States, in the case of Ohio v. Helvering, Commissioner of Internal Revenue, 292 U.S. 360, 54 S. Ct. 725,726, 78 L. Ed. 1307: "A distinction is sought in the fact that after that case was decided the Eighteenth Amendment was passed, and thereby, it is contended, the traffic in intoxicating liquors ceased to be private business, and then with the repeal of the amendment assumed a status which enables a state to carry it on under the police power. The point seems to us altogether fanciful. The Eighteenth Amendment outlawed the traffic; but certainly it did not have the effect of converting what had always been a private activity into a governmental function. The argument seems to be that the police power is elastic and capable of development and change to meet changing conditions. Nevertheless the police power is andremains a governmental power, and applied to businessactivities is the power to regulate those activities, not toengage in carrying them on. Rippe v. Becker, 56 Minn. 100, 111,112, 57 N.W. 331, 22 L.R.A. 857. If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function, and must find its support in some authority apart from the police power. When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader, so far, at least, as the taxing power of the federal government is concerned." [Italics supplied.]

My brothers seem to lay much stress upon the case of Sheppard v. Dowling, 127 Ala. 1, 28 So. 791, 85 Am. St. Rep. 68. If I may be emphatic, I cannot see that this case can, in the slightest degree, give comfort to my brothers. In that case, Judge McClellan was dealing with a municipality. Candor on the part of the majority should suggest the admission that municipalities do not come within the provisions of Section 93 of the Constitution. The limitation set forth in said sectionapplies wholly to the state, not to municipalities.

In my opinion, the case of Sheppard v. Dowling, Judge, supra, can have nothing more to do with the settlement of the question here involved than did Halley's Comet have to do with bringing about the financial depression of 1929-1933.

I cannot escape the conclusion that the so-called Alabama Beverage Control Act is in purpose, in spirit, and in essence,and was so designed to become, a revenue producing measure solely; and that it was enacted to raise revenue to meet a supposed economic situation. If this is true, the act violates both the spirit and the letter of the Constitution.

The day has never yet come in the history of the people of this state, when the law had to be stifled to meet a supposed pressing financial situation.

It is my opinion that the holding of the majority in this case will ultimately result in bringing about such a situation. Experience teaches that all heights and all depths are reached by successive steps of induction. This court has no power to make a Constitution, and certainly it has no right to destroy one, ordained by the people.

My judgment is, the Alabama Beverage Control Act infringes upon, and is violative of Section 93 of the Constitution of the State of Alabama, and is null and void: that the respondent is not, therefore, in the possession of, nor exercising the functions of, any lawfully existing office, and that a judgment of ouster should be entered in this cause.

I am not unmindful of the fact that a "dissent," or "dissenting opinion" is without efficacy, save to record the individual views of the writer; and that the minority isinarticulate, yet I feel impelled, while I may, to make clear my position on this transcendently important question. I feel that the majority have, by their opinion, either deleted Section 93 from the Constitution, or, even worse, have written into it, by judicial amendment, words never uttered or considered by the framers. In either case, the result, in my judgment, is tragic. No doubt the majority holding will be made the basis for embarking the state upon other enterprises. The end cannot be foretold.

I am regretfully conscious, also, that I stand alone on this question. However, that is no deterrent. Let this dissent be filed along with the majority opinion.