(a) The Legislature of Alabama is cognizant of “Opinion of the Justices No. 376,” issued April 9, 2002, which states that a local bill for Cherokee County “purporting to allow by local law the creation of a traffic in alcohol that does not presently exist in smaller municipalities in Cherokee County, does not fit within the ambit of the last paragraph of Section 104 permitting the Legislature to pass local laws regulating or prohibiting such traffic.” The effect of this Opinion of the Justices is to greatly limit situations in which local laws may be enacted regarding alcoholic beverages. This opinion was, in part, based upon a determination that, “Generally, ‘regulate’ implies the exercise of control over something that already exists.” While respecting the constitutional authority granted to the Alabama Supreme Court to interpret the Constitution of Alabama of 1901, this body disagrees with the conclusion reached by the court concerning Section 104. In an effort to further define this issue and to assist the court in the appropriate interpretation of Section 104, the Legislature of Alabama respectfully makes the following findings:

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Terms Used In Alabama Code 45-10-20

  • following: means next after. See Alabama Code 1-1-1
  • state: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Alabama Code 1-1-1
(1) As used in Section 104, the term “regulate” was not intended to be of a narrowing or restraining nature. If that was the intent of the framers of the Constitution, an appropriate verb such as “limit,” “restrict,” or “suppress,” in conjunction with the phrase “existing laws,” would have been employed.
(2) With all due respect to the court, the word “regulate” does not generally imply “the exercise of control over something that already exists” and such a construction is not the “general sense of the phrase.” To the contrary, one of the initial definitions of regulate in “Black’s Law Dictionary” is “to fix, establish, or control”; and “establish” in the same dictionary includes the definition “to found, to create, to regulate.” Unquestionably, regulate does not imply application only to something in existence; rather, the term includes the “establishment” or “creation” of the thing to be subsequently managed.
(3) The interpretation of the term “regulation” adopted by the court, if applied to other federal and state constitutional and statutory provisions, will result in unreasonable and unintended restrictions. For instance, the language in Article I, Section 8 of the United States Constitution, “The congress shall have … power to regulate commerce …” was not intended to only apply to types of commerce in existence at the time the United States Constitution was adopted. In fact, the U.S. Supreme Court has stated that this clause should be broadly construed to meet the over-expanding and increasingly complicated conditions of commerce. Similarly, numerous state statutes are initially adopted to regulate certain types of professional or vocational activities or functions, and these activities or functions are concurrently initially authorized. Under the court’s construction, if such activities or functions are not first in existence, they may not subsequently be controlled.
(4) In view of the research of the court indicating the absence of any discussion concerning this issue in the debates of the 1901 Constitutional Convention, and the absence of any reference to historical records of that time, the interpretation of Section 104 by modern era historians should only be given marginal consideration. As stated by the court, such historical perspectives merely give the “appearance” of intent, and, accordingly, are not supportive of specific construction of Section 104.
(5) The concluding paragraph of Section 104 is a unique provision providing for a form of local option or home rule. In view of the present sentiments of Alabama citizens to allow local control of public matters, it is essential that this body and the judiciary appropriately interpret this provision.
(b) Based upon the reasons expressed in subsection (a), as a matter of law, the Legislature declares that this act regulates the liquor traffic within the meaning and intent of Section 104 of the Constitution of Alabama of 1901.
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