The weekly true Democrat. (Tallahassee, Fla.) 1905-1912, 1907-11-08
THE LEGISLATURE
HAS THE POWER
70 Pass State Prohibition Is Opinion
Of Senator Beard.

- 1@A~~-N@s $1,000
If Hon. John S. Boards construction
Of the State Constitution is correct, no
constitutional amendment is required ia
enable the State legislature TO pass
State Prohibition law, and special SEES
sion of the legislature, If one is called,
can pass a law prohibiting the sale OF
intoxicating liquors in the State of Flor
ida. Mr.. Boards opinion is as follows
Mr.. Boards OPINION.
FRANK L. MAYEs, Pensacola, Fla.
Dear Sir Replying to your inquiry Of
recent date, / have, as you requested,
carefully considered the question as to
whether an amendment to the Constitu-
ton is necessary in order TO prohibit
the sale of intoxicating liquors in the
State of Florida.
/ unhesitatingly express the opinion
that the Legislature has full, ample and
complete power to pass a prohibition
law under the Constitution as it now
stands.
The people of State, in creating the
legislative department, delegate to it
the whole mass of legislative power.
subject to such restrictions as are emu
merated in the State Constitution, and,
of course, subject to the limitations
which are contained in the Federal Con-
stitutiOn.
In order to determine if State legis-
lature has the power to pass law upon
a given subject, we look to the Consti-
tuition to see if it is inhibited, and, if
not inhibited, the legislature has the
power.
On the other hand, in order to deter
mine il Congress has the power to legis-
late upon a given subject, we look to
the Federal Constitution to see IL the
power is delegated, and, if not dele
gated, Congress has not the power
The difference between the powers Of
State legislature and the powers Of
Congress is the difference between the
powers of legislative body created
by social compact and the powers of
a Legislative body created by federal
compact.
CONSTITUTION PERMITS LEGISLATION
The Constitution of the State of Flor
ida places no limitation or restriction
upon the power of the legislature to
prohibit the sale Of Intoxicating iquOur
in the State. take the intent and mean
ing of Article XIX to be as follows,
viz That, as the sale of Intoxicating
liquors is legal, in the absence of State
Prohibition, Article XIX permits any
county. upon complying with the condi-
tons specified in the article, to prohibit
the sale of liquors in that county. With
out Article XIX there could be no local
or county prohibition, only State prohi-
bitiOn Article XIX permits local or
county prohibition, in the absence of
State prohibition, but is in no way a
limitation or restriction upon the power
of the legislature to establish State pro-
hibiton. While Article XIX permits
local or county prohibition, IN the alb
seAce of State prohibition, the converse
is rot true. If we had State prohibition,
no county could permit the local or
county sale of Intoxicating liquors.
COURTS WOULD HOLD 1T GOOD.
Should the governor convene the leg
islature in extraordinary session, and in
his proclamation specify State prOhibi-
tiOn as one of the purposes for which
the legislature is convened, or, if after
convened, he directs the attention Of
the legislature to this subject, / think
that State prohibition law could easily
be passed and am firmly Of the opin-
ion that the courts will uphold the con-
stitutionality of such law.
II, however, the governor neither
mentions State prohibition in his pro-
clamatiom converting the legislature,
0OE uiESClb Tic aSSCuStOH VI StS lcklbtd-
ture to it, after convened, then the
matter could not be taken up, except
by q two-thirds vote Of each house. So
you see that, to a great extent, Il de-
ponds upon the governor whether the
legislature would consider the question
m extraordinary session.
WHEN TAKE EFFECT.
] have no doubt but that the court |
would hold q State prohibition statute |
constitutional. If, however. they held |
Il unconstitutional, the legislature, at |
its regular session in 1909, could pro- |
pose the necessary amendment TO the
Constitution
/ will also say thatla prohibition law,
II passed, should not go into effect be- !
fore October LIST, 1908. Licenses have |
been taken out in the wet" counties |
for the year ending October LIST, 1903,
and IL would be unfair and unjust TO |
enforce the law before that date but. |
Of course, local prohibition, where now
In force, would remain 80 until State |
prohibition goes into effect.
JOHN s. BEARD.