The opinion
KNIGHT, Justice
(dissenting).
In my dissenting opinion in the recent case of State ex rel. Wilkinson v. Murphy, Ala.Sup., 186 So. 487 ,
1
the writer expressed the view that the Alabama Beverage Control Act (General Acts, Special Session, 1936-1937, page 40) was void in its entirety as being violative of section 93, as amended, of the Constitution. I am still of the same opinion.
In the Williams case, 28 Ala.App. 73 , 179 So. 915, 916 , this Court committed itself to the proposition that the forty odd counties of the State which voted “no” in the referendum election were, and would be, unaffected by the Alabama Beverage Control Act, that the 'dry status of said counties would be undisturbed.
No other conclusion could have been reached in view of section 51 of the Act, which reads, in part: “In every County where a majority of the electors voting in said election vote ‘Yes’, this Act, and all of its provisions, shall be immediately put into operation in such County,
but in every County where a majority of the electors voting in said election vote ‘No’, this Act shall not go into effect in such County, and all laws prohibiting the manufacture and sals of alcoholic liquors or beverages now in force and effect in Alabama shall remain in full force and effect in every such County."
(Italics supplied.)
In the opinion just written, and concurred in by the majority of my brothers, it appears that in the forty odd counties which actually voted “no,” there exists a
modified dry status only,
.for we find them holding on
the
question now before us that the Alabama Beverage Control Act did go
into
effect in said counties to the extent of authorizing the sale of alcoholic beverages when
made "in certain kinds of railroad cars for consumption while en route on the railroad,"
and further saying,
"there may be others
[meaning instances
*11
where liquors may be sold]
which we will not undertake to find”
(Italics supplied.)
Just where the majority purpose to leave the “dry” .counties, we must leave it to them to say. I do not profess to know, and I am sure the people of the “dry” counties will be unable to determine.
But I do know, and the people of Alabama know, that the Alabama Beverage Control Act expressly provided in section 51 that, upon the passage of said Act, the Governor of Alabama was solemnly enjoined, within one week after the passage of the same, to call an election (quoting the language of the Act) “to determine the sentiment of the voters of
each of the Counties of the State
as to whether or not alcoholic beverages shall be legally sold and distributed in each such county. * * At said election there shall be printed on the ballot used the following question: ‘Do you favor the legal sale and distribution of alcoholic beverages in this County? Yes— No. —’ * * * When the returns from said election are tabulated, the Governor shall issue a proclamation declaring the result of the election in each of the counties of the State. In every County where a majority of the .electors voting in said election vote ‘Yes’, this Act, and all of its provisions, shall be immediately put into operation in such County, but in every County where a majority of the electors voting in said election vote ‘No’, this Act shall not go into effect in such County, and all laws prohibiting the manufacture and sale of alcoholic liquors or beverages now in force 'and effect in Alabama shall remain in full force and effect in every such County.” (Italics supplied.)
If what the majority now hold, viz., that the prohibition statutes of Alabama were modified by the Alabama Beverage Control Act as to those counties which voted “no” in said election, so as to make the sale of alcoholic beverages legal, under certain circumstances, in such dry counties, then it would seem that the people in said counties were misled, to say the least of it. We are unwilling to ascribe any such purpose to the lawmakers, but prefer to hold that the majority have misunderstood and improperly interpreted the statute.
For the above expressed reasons I cannot subscribe to views of the majority, and content myself with standing upon my dissenting opinion set forth in the case of State ex rel. Wilkinson v. Murphy, supra.
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237 Ala. 332