State, Ex Rel. Hoffman v. Powell

*297 Whitfield, C. J. The controlling question to be determined is whether Chapter 7733, Acts of Extra Session of 1918, which became effective December 9, 1918, was “in effect on December 31st, 1918,” within the intendments of second amended Article XIX of the Constitution of Florida, which was adopted at the general election, November 6, 1934, and which became effective upon its adoption. Chapter 7733 has not been adjudged to be invalid or inoperative, either under original Article XIX or under second amended Article XIX. The first amended Article XIX, adopted in November,. 1918, to take effect January 1, 1919, while in force merely suspended the operation of Chapter 7733. See State v. Smith, 26 Fla. 427, 7 So. 848; Butler v. State, 25 Fla. 347, 6 So. 67. Second amended Article XIX, adopted November 6, 1934, removed the bar and made Chapter 7733 again effective until “changed by the Legislature.” See opinion of Mr. Justice Buford in Coleman v. State, ex rel. Race, filed January 19, 1935; in Ex Parte Francis, 76 Fla. 304, 79 So. 753, the information charged that the defendant did personally transport intoxicating liquors into a dry county and did there possess such liquors for defendant’s personal use, in violation of Chapter 7284, Acts of 1917. It was held that no offense was charged and “that Chapter 7284, Laws approved May 1, 1917, undertaking to penalize the acts charged against the defendant in said information is unconstitutional and void.” The effect of the adjudication, on the record before the court, was that the statute was inoperative to sustain a criminal charge of personal transportation into, and possession in, a dry county of intoxicating liquors for the personal use of the defendant. The decision was under original Article XIX of the Constitution; and such decision did not cover transportation *298 by a common carrier but was confined to personal transportation into, and personal possession of, intoxicating liquors in a dry county for the personal use of the person so transporting and possessing. Such decision in August, 1918, under original Article XIX, even if it were not confined to personal transportation for personal use, does not render inoperative Chapter 7733, which became effective December 9, 1918, and relates to the purchase of intoxicating liquor to be transported by others into a dry county. And even if Chapter 7733 counld have been adjudged inoperative under original Article XIX while it was in force, it was not adjudged to be imperative, and it was not repealed but merely suspended in its operation by the first amended Article XIX of the Constitution, adopted in November, 1918, to be effective January 1, 1919, prohibiting with stated exceptions the manufacture, sale, barter or exchange of all alcoholic or intoxicating liquors and beverages. Being a statute not repealed and not adjudged to be invalid, Chapter 7733 is among the “laws relating to intoxicating liquors, wines and beers which were in effect on December 31, 1918,” which second amended Article XIX adopted at the November general election in 1934 to become effective upon its adoption, provides shall “become effective with this Article and shall so remain until thereafter changed by the Legislature.” Upon its adoption as a part of the Constitution in November, 1934, second amended Article XIX, by its own force superseded the first amended Article XIX, and continues Chapter 7733 in effect as it was' on December 31, 1918, until the Chapter is “changed by the Legislature.” Second amended Article XIX, adopted in November, 1934, is more comprehensive, specific and varied in its scope *299 and operation than was original Article XIX; and even if Chapter 7733 did not fully comport with original Article XIX, it is not clearly violative of second amended Article XIX and it has not been adjudged invalid; so under second amended Article XIX it remains in force until changed by the Legislature. It is the policy of the Federal Constitution and statutes to protect the dry States against the transportation by common carriers and others of intoxicating liquors into dry States and likewise it is the purpose of the State Constitution and statutes to protect the dry counties of the State against the commercial transportation by common carriers and others of intoxicating liquors into dry counties; and State statutes designed to effectuate such policy and purpose should be made effective unless the statutes violate some identified provision of the paramount organic law. Chapter 7733, forbidding the commercial transportation of intoxicating liquors into dry counties of the State, took effect December 9, 1918, and was in effect December 31, 1918. Chapter 7733 does not appear to be invalid under the principles upon which Chapter 7284, Acts of 1917, was held to be invalid in so far as it related to personal transportation of intoxicating liquors for the transporter’s own personal use; and Chapter 7733 has not been held to violate original Article XIX. The first amended Article XIX, effective January 1, 1919, prohibiting the manufacture, sale, barter or exchange of alcoholic or intoxicating liquors, in effect made all counties of the State dry counties. Chapter 7733 not being violative of first amended Article XIX, was not rendered invalid by such amended Article XIX, though Chapter 7736 made Chapter 7733 unnecessary in enforcing first amended Article XIX, and Chapter 7733 being in effect on December 31, 1918, its operation was revived by *300 second amended Article XIX, adopted November 6, 1934. The opinion herein, prepared by Mr. Presiding Justice Ellis, is concurred in except in' so far as it is inconsistent with this separate opinion. The motion to quash the return is denied. Terrell, Brown and Davis, J. J., concur. ■ Buford, J., concurs specially. Ellis, J., dissents