Reynolds v. State Board of Equalization

SHENK, J., Concurring and Dissenting.

I favor a reconsideration of one important phase of this case and will State my reasons.

I am in accord with the application in this and in the companion case of Covert v. State Board of Equalization, ante, p. 125 [ 173 P.2d 545 ], of our constitutional provision (art. XX, § 22) which prohibits the consumption of intoxicating liquors in any public saloon or public barroom, but provides that sales for consumption on the premises may be made in bona fide hotels, restaurants, or other public eating places. These provisions are not capable of misunderstanding and have been known to all liquor dealers and enforcement agencies and officers since 1934. A declaration by this court of what the Constitution plainly says in that regard is no news to them or to anyone familiar with liquor control. That phase of the litigation is obviously correctly decided.

But I see no necessity or justification for reading into the Constitution a provision which has the effect of relieving an admitted violator of the law of the consequences of his unlawful acts. A revocation of his license should be compelled.

The same section of the Constitution (art. XX, § 22) which authorizes the licensing and sale of intoxicating liquors also vests the regulation of the liquor traffic exclusively in the State Board of Equalization. That section says that that board shall have the power “to .deny or revoke” any specific liquor license. The power to “suspend” is not included except by the action of this court. By section 22 of article I of the same Constitution it is provided that “the provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise. ’ ’ This means that when the Constitution speaks in unmistakable terms everyone subject to its mandate, including the executive, legislative and judicial departments, must comply. (People v. City of San Buenaventura, 213 Cal. 637, 639-640 [ 3 P.2d 3 ] ; People v. California Fish Co., 166 Cal. 576, 587 [ 138 P. 79 ] ; Matter of Maguire, 57 Cal. 604, 609 [ 40 Am.Rep. 125 ] ; McDonald v. Patterson, 54 Cal. 245, 247; Shay v. Roth, 64 Cal. App. 314, 316 [ 221 P. 967 ].) Neither department may add to nor take away anything from its plain terms. There is no uncertainty or ambiguity about the term “revoke.” Its plain meaning is to cancel and annul. To “suspend” plainly means to stop temporarily, to hold in abeyance. Without any doubt *143 the framers of the constitutional provision deliberately omitted the word “suspend”—a word of common use in liquor regulations and enforcement—and likewise deliberately used the sole word “revoke” in that connection. When the term “suspend” was so deliberately omitted the court is not justified in changing the Constitution to that extent by inserting it.

If the language used in a constitutional provision plainly and unequivocally shows a certain and definite purpose to be accomplished thereby it is the duty of the courts to carry it into effect. (Boca Mill Co. v. Curry, 154 Cal. 326 [ 97 P. 1117 ].) It is as much the duty of the court to see that the plain provisions of the Constitution are not evaded as it is to see that they are not directly violated. (Parker v. Otis, 130 Cal. 322 [ 62 P. 571, 927 , 92 Am.St.Rep. 56 ].) In the grant of power and the mode of its exercise there is an implied negation that what is included excludes that which is inconsistent, and that when a thing is to be done in a particular way it shall not be done otherwise. (Martello v. Superior Court, 202 Cal. 400 [ 261 P. 476 ].)

Courts are no more at liberty to add provisions to what is declared in the Constitution in definite language than they are to disregard existing express provisions of the Constitution. (R oss v. City of Long Beach, 24 Cal.2d 258, 260 [ 148 P.2d 649 ] ; People v. Campbell, 138 Cal. 11, 15 [ 70 P. 918 ].)

Since the same rule is binding on the legislative department the Legislature had no more authority than the courts to insert in the Constitution something which is not there and was deliberately excluded. This is especially true of the attempt of the Legislature to enlarge upon the powers of the board by the insertion of the word “suspend” in the Alcoholic Beverage Control Act of 1935 (Stats. 1935, p. 1123, 2 Leering’s Gen. Laws, Act 3796). Furthermore, the Liquor Control Act of 1933 (Stats. 1933, p. 1697) was not effective as a grant of power to “suspend” because the constitutional amendment in 1934 adopted the 1933 act only insofar as its provisions were not inconsistent with the constitutional see-, tion. Since the power to suspend is, obviously inconsistent with the sole power to revoke, the 1933 act was superseded by the Constitution and became to that extent entirely ineffective.

Edmonds, J., concurred,.