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

This statute is an experiment in Florida. None will deny that the evil it seeks to ameliorate is as great as is known to man. Is it not the greatest evil known? Has it not borne to our race more misery than any agency that exists? The agonizing echo of its ceaseless tread has resounded in homes and hearts made desolate by its triumphs throughout time, and every sentiment of humanity approves the effort to arrest its ravages. The framers of our National and State Constitutions have, however, made no ramparts for its protection, which make any appeal to the sentiment of courts at all necessary, even if they could be listened to when against organic law.

In the argument filed by Messrs. John T. and Geo. U. Walker it is conceded "that it is perfectly competent for the Legislature, with the approval of the Governor, to regulate the sale of liquor; that there is nothing to be found in the Constitution of the State or of the United States inconsistent with the exercise of such a power; that therefore this enactment, in respect of the purpose disclosed in its title, is obnoxious to no constitutional provision;" and that "hence its unconstitutionality must be found, if at all, in the details by which its purpose is sought to be enforced."

After quoting from the 14th amendment to the Constitution of the United States, and quoting the 11th Article of the Florida Bill of Rights, and quoting Section 18 of Article 4 of the State Constitution, they say: "The act is general in its nature," and "is a general law, applicable to the whole and every portion of the State:" but they contend it violates the latter clause of the 14th amendment, Section II of the Bill of Rights, and that it lacks uniformity of operation throughout the State. They assume that Section II of the Bill of Rights differs from Section 18 of Article 4 in that the former refers to persons and things and the latter to territorial sub-divisions; the

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

former and the 14th amendment compassing the same object to prevent among other things "any discrimination between persons or the granting of an indulgence to one, which is not granted to another standing in the same relation." They "do not maintain that the 14th. amendment as applicable to this question inhibits the State from legislating upon or regulating any subject which it previously could, but only requires that such action shall apply equally to all persons in the same particular or general jurisdiction standing in the same relation of citizenship to the subject-matter of the legislative action." "It was not," they say, "therefore, designed to prevent the Legislature of any State from regulating, in any manner it might deem fit, the sale of liquor within the State or any particular portion of the State. So only that the regulation shall apply to all citizens therein equally."

In the case of Bartemeyer vs. Iowa, 18 Wall., 129, it is held by the Supreme Court of the United States that the 14th amendment did not interfere with the right of the States to either prohibit or regulate the traffic in or sale of liquors (with one solitary exception useless to mention here) by virtue of their police powers. The liquor traffic is not a "privilege or immunity" which this amendment was intended to prevent the abridgement of.

In Missouri vs. Lewis (101 U. S. Repts., p. 22,) the Supreme Court of the United States holds that the provision of said amendment that no State "shall deny to any person within its jurisdiction equal protection of the laws" contemplates "the protection of persons and classes of persons; against unjust discrimination by a State," and does not even "relate to territorial or municipal arrangements madefor different portions of a State."

Now with all deference I ask what persons or class of persons does this act discriminate against at all. It pre

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

scribes a certain permit as a necessary instrument for any one who desires to obtain a license from a Collector of Revenue to sell liquors, and also prescribes a method of obtaining such permit, but what person or persons does it say may get such permit by any other method or such license without such permit? None whatever. Jones, Jones, Smith, Williams, Tomkins and Selladrink, all have to tread the same mill. What class of persons is excluded from the rules it prescribes? Is the native white citizen excluded from and the negro included within its rigorous system, and the naturalized white citizen given a chance to get a license on less rigorous terms than the colored citizen? No, there is not one word of discrimination against any person or class of persons. It prescribes the same uniform rule to all classes all over the State.

In the case of Ex-parte Virginia, 100 U. S. Sup. Ct. Repts., there is not a word from which it can be argued that this statute of itself makes any discrimination. whether it be in the opinion of the court or in the dissenting opinion from which the counsel quoted. Dissenting opinions are not usually very convincing documents, and have not the authority of law.

The question of uniformity has been fully discussed. Whether we take the Bill of Rights Article, or Section 18 of Article 4, and whether we adopt or not the assumption of counsel that the former refers to "uniformity as to persons and things, and the latter as to territorial sub-divisions," the statute is uniform as to all persons who may seek to avail themselves of it and as to territorial sub-divisions.

The fact that "A" can and "B" cannot comply with the requirements which a statute makes of the whole alphabet of citizens will hardly ever be taken as even a shadow of reason that the requirements are not general and uniform to all persons desiring to do that as to which these require

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

ments are prescribed, and no authority has been produced to support such a theory.

The cases from Indiana and Mississippi dissipate at once all the mist which the remarks about "fluctuating caprice" of the majorities, and inability to comply therewith, are desired to raise. Not a line of law has been shown to the effect that such regulations by majorities are unconstitutional. There is room for doubt in the light of these cases, interesting as the genius of counsel makes his plea against them.

In Iowa the Constitution declared that "all men are equal and endowed with the right of acquiring, possessing and protecting property," and forbid the General Assembly granting "to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." It was held by the Supreme Court that a statute providing the granting of permits to persons of good moral character who are citizens of the county to sell intoxicating liquors was not in conflict with such provisions of the Constitution. In re Ruth, 32 Iowa, 250.

I am unable to see that this statute is within the theory prescribed by the eminent writer on political science from whom a quotatiou is made. This statute does not “recognize individuals," but it does apply to all without discrimi-. nation for or against. It is a general law, and there are in it no "special providences" for one or another applicant for its benefits or burdens.

It is unnecessary for this court to decide the constitutionality of the sections or provisions giving to the County Commissioners the power to revoke the license issued by the Collector of Revenue. So far as constitutionality of the parts of the statute authorizing the issue of the permit by the County Commissioners-a power which the writer of the first and second sections seems desirous of conceal

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

ing, judging from the language used-are concerned I am willing for the sake of argument to admit that the parts giving power to the Commissioners to revoke the Collector's license are void. The two powers are entirely distinct, and neither is at all dependent upon the other. One is a power to one body to issue a permit which is a condition precedent to obtaining a license from another officer, the other is a power in the body to revoke this license so issuing from the other officer. It is not a case in which it can be said the Legislature would not have granted the power to issue the permit without giving the power to suspend the license. You can strike out all the provisions as to revoking the license and there is left a complete system as to issuing the permit. Cooley's Const. Lim., 177, 181, m. p.

R. B. Hilton handed to the court a law journal containing, we understand, an article on the question. It has not been furnished to the Reporter. He also filed the following paper:

We presume no one would have the hardihood to contend that the retail sale of intoxicating drinks does not tend, in a large degree, to demoralize the community, to foster vice, produce crime and beggary, want and misery. And if such is its tendency, it should not have unrestrained license to produce these results. If sanctioned at all, it should be under restraints that will suppress, or at least mitigate, such evils to society.

From an early period in civilization in all countries the unrestricted sale of such drinks has been regarded as pernicious. Hence, as is believed, in the code of laws in every civilized State it has, at all times, been regulated and put under restraint. In this respect it has formed an exception to other legitimate business, and it is believed to have resulted from humane feelings and a desire to suppress im