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DECISIONS

OF THE

SUPREME COURT OF FLORIDA.

JANUARY TERM, A. D. 1883.

THE STATE EX REL. H. W. ARPEN, RELATOR, VS. MOSES J. BROWN, COLLEctor of ReveNUE FOR DUVAL COUNTY, RE

SPONDENT.

1. The act of March 3, 1883, relating to granting licenses for the sale of intoxicating liquors, so far as it requires that an applicant for a license shall produce to the Board of County Commissioners an application signed by a majority of the registered voters in the election district in which he desires the privilege to sell, and otherwise comply with the terms prescribed, is a valid act, not repugnant to the Constitution of this State or of the United States.

2. The fifth and sixth sections of the act, which seek to invest the Board of County Commissioners with judicial power to hear, try and determine a complaint against the holder of a license, and to impose a penalty by revoking the license, are void, as they create a court not authorized by the Constitution.

3. An act may be void in part without affecting other parts of it, if that which remains is capable of being executed in accordance with the purposes of the Legislature wholly independent of that which is rejected.

The State ex rel. v. Brown-Statement of Case.

The alternative writ makes no allegation of a compliance with the requirements of Chapter 3416, Laws of Florida, approved March 3, 1883.

Sections 1, 2, 3, 5 and 6 of said act are as follows:

Sec. 1. That from and after the passage of this act it shall not be lawful for any person or persons, firm or firms, to sell any intoxicating liquors, wines or beer, in any election district in any county in this State, except as hereinafter provided.

Sec. 2. Any person or persons, firm or firms, wishing to sell liquors, wines or beer, shall make application to the Board of County Commissioners of the county in which the privilege of such sale is desired, at a regular meeting of said Board, for a license to sell such liquors, wines or beer, said application to be signed by a majority of the registered voters in such election district, as shown by the registration list on file in the office of the Clerk of the Circuit Court at the date of such application, asking said Board to grant to said applicant the right to sell such liquors, wines or beer; and the said applicant shall be required to make affidavit that each and every name or mark affixed to such petition was the act and deed of the party purporting to have signed the same, which said signing shall be in the presence of at least two credible witnesses, and that there was no fraud, bribery or deception in procuring said signatures or marks to such petition; and said petition, with the names and marks thereto attached, shall be published in full, at the expense of the petitioner, in a paper published in said county, and if there is no paper published in said county, then a copy of said petition and signatures shall be posted at the county site and at the election precinct of the district wherein such license is sought, for the space of two weeks before the County Commissioners meet to hear such petition.

The State ex rel. v. Brown-Statement of Case.

Sec. 3. No Collector of Revenue of any county shall issue license to any person or persons, firm or firms, unless a perinit is presented from the Board of County Commissioners; and such license, so issued, shall contain a provision that the same may be suspended or revoked by the Board of County Commissioners for any of the causes hereinafter set forth.

Sec. 5. The County Commissioners shall have the right, and shall exercise the same, to suspend, at any time, the license of any dealer in liquors, wines or beer in their respective counties upon the affidavit of two or more reliablecitizens that such dealer has sold any intoxicating beverage to any minor or any person in a state of intoxication.

Sec. 6. Such affidavit shall be made before the Clerk of the Circuit Court, and the said Clerk shall notify the dealer, by written notice, served by a constable or sheriff, requiring said dealer to appear before the Board of County Commissioners at its regular meeting next thereafter; and the Board shall take the proof, hear and determine whether there has been such violation as has been complained of, and if the charge is sustained revoke said license.

Section I of Article 6 of the State Constitution is as fol-lows:

Sec. 1. The judicial power of the State shall be vested in a Supreme Court, Circuit Courts, County Courts and Justices of the Peace.

Section 16 of same article authorizes the Legislature to establish courts for municipal purposes only in incorporated cities and towns.

And Section 18 of the same Article is as follows:

Sec. 18. No other courts than those herein specified shall: be organized in this State.

The defendant moved to quash the writ.

The other facts are sufficiently stated in the opinion.

The State ex rel. v. Brown-Argument of Counsel.

Wm. B. Young for the Motion.

The relator must have a clear legal right to have the act done, to compel the doing of which the writ is sought. Wood on Mandamus, 68.

A statute of the State prohibits the respondent from doing the act which the relator seeks to compel him to do. and its constitutionality cannot be tested in a proceeding by mandamus against the Collector. Hall vs. Supervisors, 20 Cal., 591.

The Constitution of the State is not a grant of power, nor is it an enabling act to the Legislature. It is a limitation upon the general powers of a legislative character, and restrains the Legislature only so far as the restriction appears, either by express terms or necessary implication. Bourland vs. Hildreth, 26 Cal., 161; Smith vs. Judge, &c. 17 Cal., 547, and 17 Cal., 23.

Before any act of the Legislature can be declared void the court must be able to say that some specific provision of the Constitution has been violated, and the violation inust be clear and entirely free from doubt. Cheney and Wife vs. Jones, 14 Fla.. 587; State ex rel. Atty.-Gen. vs. Knowles, 16 Fla., 615.

Section 18 of Article IV of the Constitution is the only possible section that it can be claimed prohibits the Legislature from the passage of this act. That provides that in all cases where a general law can be made applicable all laws shall be general and of uniform operation. That the act called in question is general and applies to every person and portion of the State, cannot be denied. Is it of "uniform operation throughout the State?" The word uniform in said section does not mean universal, and that section intends simply that the effect of laws of a general nature shall be the same to and upon all persons who stand

The State ex rel. v. Brown-Argument of Counsel.

in the same relation to the law; that is, all the facts of whose cases are substantially the same. The statute must be general and uniform in its operation upon all persons in the like situation. Smith vs. Judge, &c., 17 Cal., 547; 20 Iowa, 342; (the last case cited with approval in McConihe, Mayor, vs. ex rel. McMurray, 17 Fla., 238;) 42 Ind., 547.

That the Legislature has the power to license, restrain and regulate occupations, and impose conditions to be complied with before the license can be issued, unless prohibited by the Constitution, is settled by a long list of authorities. Dorman vs. State, 34 Ala., 216, and authorities there cited; Mayor, &c., vs. Yuille, 3 Ala., 137; in the matter of J. L. Dorsey, 7 Porter. 361; Lodano vs. State, 25 Ala., 64; 21 Am. Repts., 765.

That the Constitution of Florida contemplates the exercise of this power instead of prohibiting it, is apparent from Section 6 of Article 12.

A license issued in pursuance of law, and authorizing any person to exercise privileges that he could not lawfully exercise without it, is a franchise. Ex rel. Atty.-Gen. vs. Jones, 16 Fla., 306

Chapter 3296, Acts 1881, requires every person who wishes to practice medicine or surgery to get a permit from a board appointed by the Governor. Will it be pretended that this provision of law is not general and of uniform operation because numerous citizens could not pass the examination and get the permit from the board? So with pilots.

These occupations are useful and beneficial to the community. Will any man say that the sale of vinous or spirituous liquors is beneficial or useful to the community? Why may the Legislature not require as a condition, as a qualification, for obtaining permission to deal in an article which tends to promote pauperism and crime, that the person

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