Mayes v. Daniel

Hutcheson, Justice,

dissenting. It is with no little regret that I find myself in disagreement with my colleagues upon a question which, if not of vital public importance, is certainly of great public interest; but to my mind the act attacked as invalid violates at least one provision of our constitution. Holding to that opinion, I can not, of course, concur in the judgment of affirmance. I am not unmindful of the principles, which seem to have guided the majority, that a legislative enactment is not to be set aside as unconstitutional unless it is palpably and obviously so, and that in considering such a question every presumption is to favor the validity of the statute. These principles mean no more than that, until the contrary appears, it must be presumed that the act is *359valid, since the members of the legislature, having taken an oath to support the constitution, must not be presumed to have violated it. But when an act is challenged, it must be measured by the constitutional provision invoked by the challenger; and if it is found, upon a fair consideration of the enactment and the constitution, that the statute offends the constitution, it must fall. If the principles referred to mean more than this, I can not assent to them; for if they can be taken to require a state of mental conviction which goes beyond satisfaction of mind and conscience, they impose upon the judges a burden the constitution never intended that they should assume, and make virtually meaningless the mandate that the judiciary shall declare unconstitutional acts void.

If the alcoholic-beverages act of 1938 does not relate to some object stated in the proclamation of the Governor convening the extraordinary session of the General Assembly, it is void, and the court should so declare. The objects of this provision, of course, are that the people may be apprised of the purposes for which the General Assembly is about to be convened, and that the executive may restrict the business to be considered, and thus avoid prolonged extraordinary sessions. It seems to me that at least one of these purposes is entirely defeated if the ability to draw nice distinctions, and a knowledge of the meaning attributed to words and phrases by judicial decision, are necessary to notice as to what may or may not be 'considered at an extraordinary session. I am willing to concede the point that a synopsis of proposed laws need not be embodied in the proclamation, and that it is necessary only that enactments relate to some stated object; but, as I interpret the constitution, the relationship must be a reasonable one, and the legislation must be of such a character as would be suggested from a normal examination of the proclamation by a layman, not from a close and technical scrutiny by a trained lawyer. If it is necessary to justify the legislation to resort to such technicalities, it seems to me that it ought not to stand. The proclamation before us is clothed in much ambiguity. It may be that its author sought to include the legislation here attacked, without expressly doing so. If such was the purpose of the vast generality of the language used, it has met the approval of the court. I hold to the view, however, that if the Governor had purposed to lay *360before the Assembly a proposed repeal of the existing prohibition law, plain and unambiguous- language for the expression of that purpose was readily available. It was not used. A careful examination of the proclamation would never have suggested to the lay mind that repeal of the liquor laws was contemplated. Even a normal reading by a trained lawyer would not suggest such a purpose. The constitutional provision was not designed to protect any department or division of the government, but to protect the people themselves. A proclamation convening an extraordinary session of the Assembly ought not to be clouded with doubt or shrouded in uncertainty. For these reasons alone, I do not think the letter or the spirit of the constitution permits a holding that the law here attacked is valid.

But even if the relationship between any object stated in the proclamation and the act is required to be one such as only a'< trained legal mind may detect, it must at least be direct, and such as rationally connects the enactment to the stated object. Measured by this rule, the law here falls far short. The act must be justified, if at all, as relating to the object of raising revenue, as stated in the proclamation. There is nothing else in the proclamation to which it is remotely akin. It may be conceded that the call is broad enough to justify any sort of revenue statute; it may even be conceded that it would permit the enactment of any sort of penal or regulatory provision for the enforcement of any revenue law, and it would still fall far short of justifying the present statute. This is true for the very obvious reason that the exercise of the police power of the State, a power existing entirely independently of the power of taxation, was necessary to bring into being an object upon which the taxing power could legitimately operate. No such exercise of the police power was provided for or contemplated by the proclamation — yet without it the so-called revenue law would be meaningless and futile. It could be argued that under the dictum of Miller v. Shropshire, 134 Ga. 839 (53 S. E. 335, 4 Ann. Cas. 514), a repeal by implication of the prohibition statute might result from a law taxing liquor, but herq there was no repeal by implication — the repeal was by express en-! actment. Furthermore, even if the rule just referred to is sound, no mere repeal by implication, such as might be justified by that rule, could be operative in one part of the State and not in another. *361And there, to my mind, lies the infirmity of the position of my colleagues. If we could say that a law generally repealing the existing liquor law is reasonably related to the object of raising revenue stated in the proclamation, the act here challenged is not of that nature. Many of the prohibitions of the old liquor law remain of force throughout the State, and substantially all of its provisions remain of force in counties which do not elect to permit the liquor business to be there carried on. The act is a local-option law — not a mere repeal of the existing prohibition law. It embodies a complete code on the subject, a complete set of police regulations, which have nothing to do with the collection of the tax imposed, and are not remotely related to the object of revenue, such as, to my mind, could not be lawfully enacted under the proclamation convening the extra session. For these reasons, I can not concur in the judgment of affirmance.