The Act (Chapter 16774, Section 5) permits the sale of beverages containing not more than 3.2 per cent. of alcohol by weight generally throughout the State, including "counties where the sale of intoxicating liquors, wines and beers is prohibited." Thus the Legislature classifies 3.2 per cent beer asnon-intoxicating, and in effect holds as not applicable to 3.2 per cent. beer all local laws prohibiting the sale of "intoxicating liquors, wines and beers." The result is that the sale of 3.2 per cent. beer is not prohibited in Alachua County, or any other county in the State.

The paragraph in Section 5 relied on as preventing the issuance of the license in effect provides that no license shall be issued to a manufacturer or distributor of 3.2 per cent. beer in any county "where the sale of intoxicating liquors, wines and beers is prohibited."

This is an anomalous provision as applied to 3.2 per cent. beer. Why should the Legislature prohibit the manufacture of a beverage which it definitely permits to be sold, even in "dry" counties, on the manifest ground that it is non-intoxicating? Why should Jacksonville or Tampa, brewers be permitted to sell 3.2 per cent beer in Alachua County, and yet the citizens of Alachua County be prevented from brewing the same kind of beer in their own county? Why make state-wide the privilege of selling non-intoxicating 3.2 per cent. beer upon the payment of the required license, regardless of local laws prohibiting the sale of intoxicating liquors, and yet deny the privilege ofmanufacturing exactly the same sort of beverage in certain counties which have adopted such local prohibitory *Page 709 laws? Why allow the sale, but deny the manufacture, of anon-intoxicating beverage in certain counties merely because they have prohibited the sale of intoxicating beverages therein? If the sale of such beer direct to the consumer is allowed by State law in dry counties, why should the manufacture be prohibited? The latter is certainly not more injurious to the public than the former. It would seem that the legislative classification makes a distinction between counties based upon differences in their local laws relating to intoxicating liquors which, as regards 3.2 per cent. beer, is a distinction without a difference. The Act itself renders the distinction arbitrary and discriminatory, because the Act treats 3.2 per cent. beer as a non-intoxicant, which can be sold anywhere in the State. Therefore, this sentence in Section 5 of the Act is arbitrary and unreasonable, and unconstitutionally denies the equal protection of the laws to those citizens of the so-called "dry" counties who desire to manufacture this presumably harmless and non-intoxicating beverage on the same terms which the statute grants to the citizens of the so-called "wet" counties which have no local prohibitory laws.

Also, upon further consideration I have concluded that the paragraph of Section 5 above referred to is void, because not within the purview of the subject or title of the Act. The title of Chapter 16774 deals with "regulating and taxing the manufacture, distribution and sale of beverages containing more than one per cent. of alcohol," but there is not a word in the title that gives the slightest notice that the Act contains a prohibitory clause, such as that above referred to. There is a vast difference between regulation and prohibition. Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 2d 34. And the effect of the quoted provision of this statute is to absolutely prohibit the manufacture of beer in *Page 710 some counties of the State. As to those counties, the prohibition is absolute.

So this case does not fall within the rule laid down in ExParte Lewinsky, 66 Fla. 324, 63 So. 2d 577, where it was held that an Act to regulate the sale of intoxicating liquors may prohibit its sale to certain classes of citizens, such as women and minors. The facts of this case differentiate it from the cited case.

Nor does this case fall within the holding in Ex Parte Pricha,70 Fla. 265, 70 So. 2d 406.

The title of this Act gives no notice whatever that in the body of the Act there will be found a provision in effect prohibiting the manufacture of 3.2 per cent. beer in certain counties of the State. So, upon further consideration of this point in the case, I think such provision is invalid under Section 16 of Article III of our Constitution, as construed in numerous previous decisions of this Court. See Colonial Investment Co. v. Nolen, 100 Fla. 1349, 131, So.2d 178. I think, therefore, that the petition for rehearing should be granted.