Vickers v. State , 176 Tenn. 415 ( 1940 )

OPINION ON PETITION TO RE-HEAR. A petition to re-hear presents for the first time a challenge of the constitutionality of the Act of 1939, Chap. 49, particularly Paragraph 3 of Section 15 thereof, which we held to authorize officers of the Highway Patrol to serve search warrants in liquor cases in Carroll County.

Parenthetically it may be remarked that, while the question of constitutionality may be first raised at any time, even on a petition to re-hear, the burden, always on those attacking the constitutionality of an Act of the Legislature, is increasingly heavy when raised for the first time by petition to re-hear. Not only does the general presumption of constitutionality apply, but a presumption also arises from this after-thought attack that the constitutional defect alleged is not clear and obvious, since it did not before appear, either to astute and diligent counsel, or to the Courts which have construed the Act.

We have carefully considered the able argument attacking the constitutionality of the clause of the Act involved, but are not convinced that the attack is well made. The provision of the Act in question does not introduce matter independent of the general subject, but grows naturally out of it. As said in the original opinion, in this Act "The Legislature was dealing with a widespread practice of law violation likely to be aggravated in the counties left legally `dry' by the conversion of adjacent counties into legally `wet' territory under the Act of 1939." As a natural incident the Legislature might properly provide for additional means of protection of this territory left dry, in order that the "wet" privileges conferred on given territory might not adversely affect the territory left legally dry. This is all this provision does. The Act as a whole, as indicated by its caption, deals with the general subject of the regulation of the sale of liquor. Authorizing its sale under prescribed conditions, it was germane to provide that it should not be otherwise or elsewhere sold, and provide for enforcement of this limitation. The constitutional provision relied on that "no bill shall become a law which embraces more than one subject," art. 2, section 17, has no application where "the unity of the subject is to be found in the ultimate object of the statute," as well said by the learned Attorney General.

It is, also, we think, apparent that the restrictions and conditions placed by this Act upon the sale of liquor in a county voting itself wet would be in large measure defeated if unrestricted sales in other and adjacent territory are not suppressed. All the carefully provided regulations prescribed by this Act for the sale of liquor in legally wet territory would be weakened if liquor might with impunity be sold free of these regulations in other territory. This Act of 1939 has been described by this Court as an amendment to existing prohibition laws. Chadrick v. State, 175 Tenn. 680, 683,137 S.W.2d 284. In so amending these laws it was properly within the scope and object to include provisions against the weakening of the prohibition laws generally. Reference is made to language used in the opinions in Akers v. State, 175 Tenn. 674,137 S.W.2d 281, and Chadrick v. State, 175 Tenn. 680,137 S.W.2d 284, as recognizing the "effect" and "purpose" of the Act of 1939 to be limited to counties voting to come within the Act. That is true, in the general sense and context in which these expressions were used, but this Act is not a local law, in the sense of being passed for the benefit of a particular county only. It is a general State wide law, applicable to the entire State, but effective for its general purposes in such counties only as may adopt it. And, as hereinbefore indicted, it is competent for such an Act to provide, as a fair and reasonable incident, for preventive measures applicable in other territory. Attention is directed to the elaborate reply brief of the Attorney General. Further discussion is not required. The petition must be dismissed.

GREEN, C.J., and COOK, J., concur.

McKINNEY and DeHAVEN, JJ., dissent.