Brown-Forman Distillers Corp. v. Olsen

CANTRELL, Judge,

dissenting.

I respectfully dissent from the part of the majority opinion that holds that the regulation under review does not violate both the state and federal constitutions.

I concede that there are ample precedents in this jurisdiction for holding that no provision of the state in regulating the sale of liquor is beyond the police power of the state. Terry v. Evans, Commissioner, 189 Tenn. 345, 225 S.W.2d 255 (1949); McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745 (1944). The substance of these and other decisions is that there is no constitutional protection from the raw power of the state for anyone engaged in the business of manufacturing or distributing liquor. The reasoning is that the twenty-first amendment to the United States Constitution gave the states the power to regulate the liquor traffic, even to prohibit it altogether. If, the argument runs, the state has the power to prohibit the sale of liquor it can impose any restrictions whatever on its distribution.

However, as firmly established as these precedents are, I think it is time to reexamine them in the light of experience. We have seen in recent years in this state that the regulation of the liquor trade can be the source of enormous mischief in the hands of an arbitrary government. Arbitrary power is one of the evils that the constitutions enacted in this country were designed to eliminate. “Due process” under the federal constitution and “the law of the land” in Article I, § 8 of the Tennessee constitution are concepts that protect individuals from the unlimited power of the government. In saying that these concepts do not apply to the liquor trade we have delivered the trade entirely into the hands of the government when, as in any other trade, it should be regulated by the government with individual rights respected and protected by the courts.

The United States Supreme Court has recognized that the enactment of the twenty-first amendment did not repeal the bill of rights for those engaged in the distribution of liquor. In Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964) the Court held that the State of New York *576could not prohibit the sale of untaxed liquor at retail for delivery aboard airplanes headed for foreign ports. The Court said:

Both the twenty-first amendment and the commerce clause are parts of the same constitution. Like other provisions of the constitution each must be considered in light of the other, and in the context of the issues and interests at stake in any concrete ease.

Thus even the commerce clause did not capsize in the wake of the twenty-first amendment.

In Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the Supreme Court struck down an Oklahoma statute that allowed the sale of beer to a female eighteen years of age but prevented the sale to a male until he reached twenty-one. The Court recognized that the equal protection clause of the fourteenth amendment still had effect even though the subject of the state law was the distribution of liquor. The Court said:

Once passing beyond consideration of the commerce clause the relevance of the twenty-first amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked “neither the text nor the history of the twenty-first amendment suggests that it qualifies individual rights protected by the bill of rights in the fourteenth amendment where the sale or use of liquor is concerned.” P. Brest, Processes of Constitution Decision Making, Cases and Materials, 285 (1975).

Therefore, I conclude that the twenty-first amendment does not give the state the arbitrary power to deal with liquor distributors in a manner that is repugnant to the due process provisions of the federal constitution or Article I, § 8 of the Tennessee constitution.

Since the regulation under consideration should be tested by due process standards, it must bear some relation to the liquor control laws and the specific evils sought to be controlled. Brown-Forman Distributing Corp. v. Stewart, 520 S.W.2d 1 (Mo.1975). It must be clear enough that one may know with reasonable certainty what conduct is relevant to the provisions of the regulation. Small Company v. American Sugar Refining Company, 267 U.S. 233, 45 S.Ct. 295, 69 L.Ed. 589 (1925).

I think the regulation fails either test. A distiller wishing to transfer its brands from one distributor to another would find it impossible to know what must be proved in order to satisfy the good cause or the good faith requirement in the regulation.

For these reasons I would reverse the decision of the court below. Therefore, I respectfully dissent.