State, ex rel. Atlantic Ice and Coal Company, etc., v. George O. Weems, as Director of the State Beverage Department, 122 Fla. 702

Buford, J. This case is before us on motion to discharge the alternative writ of mandamus on the return coming in. Both the relator and the respondent have filed brief. We will consider the relator’s brief as a motion to quash the return. It is alleged in the alternative writ that the relator is .the owner .of a certain plant and machinery which he desires to remodel so as to construct a brewery or manufacturing plant for the making of malt beverage of 3.2 per cent, by weight, or less, of alcoholic content. That pursuant to

Chapter 16774 of the Acts of 1935, and

Chapter 15884, Acts of 1933, it demanded of the Tax Collector of Alachua County, Florida, that he furnish to it a blank form of application for the erection of such a brewery in Alachua County, Florida, such application to be filed in accordance with the statute; that the form was furnished and filled out and presented to the Tax Collector of Alachua County, Florida, and was transmitted to the County Commissioners of said Alachua County and they, at their regular meeting in October, 1935, ratified and approved the application and thereafter, the said application for permit was duly presented to the Director of the State Beverage Department and was approved by the said Director.

That thereafter George O. Weems, as Director of the said State Beverage Department, by telephone and afterwards in writing, withdrew his said approval, stating as his grounds herefor that Alachua County was a dry county and that he had no authority to authorize the brewing of malt beverage of 3.2 per cent, alcoholic content by weight or less in Alachua County. Relator further alleges that he tendered to the Tax Collector of .Alachua County $1500.00 for the issuance of a license and that the issuance of such license has been refused because of lack of approval by the State Beverage Department.

It is further alleged that the Relator tendered to the State Beverage Department a bond in the sum of Ten Thousand Dollars in accordance with the statute; that said bond was satisfactory to the State Beverage Department but said Beverage Department refused to accept said bond and refused to approve said bond because of its supposed inability to grant permission for the manufacture of malt beverage of 3.2 per cent, or less of alcoholic content by weight. The command of the alternative writ is: “And we being willing that full and speedy justice be done in the premises do hereby command you, George O.

Weems, as Director of the State Beverage Department of Florida, to instanter approve the issuance of a license for the establishment of a manufacturing plant for the brewing of 3.2 per centum beer, or less, in the County of Alachua and State of Florida, by the Atlantic Ice & Coal Company, or show cause, if any you have before the Supreme Court of the State of Florida on the 22nd day of October, A. D. 1935, at 10:00 o’clock A. M., why you have not obeyed this writ.” We hold that

Chapter 16774, Acts of 1935, is the controlling statute in this state governing the taxing, manufacturing, distribution and sale of beverages containing more than one per cent, of alcohol. It will be observed that paragraph “a” of

Section 19 of

Chapter 16774, supra, provides as follows: “All laws and parts of laws in conflict with this Act are hereby repealed, but

Chapter 11809, Acts of 1927, relating to intoxicated persons operating automobiles is not hereby repealed. And

Chapter 15884, Acts of 1933, regulating the manufacture, sale and transportation of beverages not prohibited by law shall not be repealed until it becomes inconsistent with this Act, and the excise tax thereby imposed shall remain effective until the excise tax hereby imposed becomes effective and all taxes imposed by said law shall remain valid obligations to the State until paid.” The logical meaning of this phraseology is that the provisions of

Chapter 15884, Acts of 1933, remained in force as long as licenses theretofore granted under that Act should authorize the sale of alcoholic beverages declared to be lawful by the provisions of that Act. But, it does not mean that new licenses could be issued under the provisions of that Act after

Chapter 16,774, became effective. The title to

Chapter 16774, supra, is as follows: “An Act Regulating and Taxing the Manufacture, Distribution and Sale of Beverages Containing More than One Percentum of Alcohol, Creating and Providing for a State Beverage Department, Providing Penalties for the Violation of this Act and Repealing Existing Laws concerning Said Beverages.” It will be observed that the Act by its title contemplated that it should apply to all beverages containing more than one per cent, of alcohol. Paragraph 1 of

Section 2 of the Act provides as follows: “Any person, association of persons, or corporation, before engaging in the business' of manufacturing, selling, bartering or exchanging or in anywise dealing in liquors, wines, beers or other beverages containing more than one per centum of alcohol by weight, shall, before engaging in such business, file under oath with the Tax Collector of the County in which the place of business of such person, association of persons, or corporation shall be located, a written or printed application for license to conduct such business, said application to be made on forms to be provided to the Tax Collector by the Director.”

Section 5 of the Act provides for the issuance of licenses and subsection “c” of

Section 5 is as follows: “If engaged in the business of brewing malt liquors and nothing else a State license tax of $750.00.” Another provision of

Section 5 of the Act is: “All persons licensed under sub-sections ‘a,’ ‘b,’ ‘c,’ £d/ and £e’ of this

section shall be deemed manufacturers within the meaning of this Act.” And another provision of that

section is: “No license except under sub-sections £a,’ and £b’ of

Section 5 hereof shall be issued to a manufacturer or distributor for the operation of a manufacturing or distributing plant or establishment in any county where the sale of intoxicating liquors, wines and beers is prohibited.” Relator in his brief says: “The next question before us is: That if the Legislature did intend to prohibit the manufacture of 3.2 beer and less in dry counties, can they do so and at the same time allow the distribution and sale of this commodity in the county?

It would be a futile and useless gesture for the Legislature to authorize the sale of a commodity, to authorize the distribution of a commodity, and at the same time deny the right to make the commodity. The commodity must be made before it can be sold.” This question may be before the officials of Alachua County but it is not presented to this Court and until it is presented here in due course we are not called upon to discuss it. We find the return of the .respondent sufficient. Therefore, the alternative writ should be quashed and the cause dismissed. It is so ordered. Ellis, P. J., and Terrell, J., concur.

Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.