INDIANA WHOLESALE WINE & LIQUOR COMPANY, INC.,
    Appellant (Defendant below),

    v.

STATE OF INDIANA ex rel. INDIANA ALCOHOLIC BEVERAGE COMMISSION, NATIONAL WINE & SPIRITS CORPORATION, and OLINGER DISTRIBUTING CO., INC.,
    Appellees (Plaintiff and Defendants     below, respectively).

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)    Supreme Court No.
)    49S02-9609-CV-606
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)    Court of Appeals No.
)    49A02-9406-CV-384
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    This unusual case involves a dispute over whether an Indiana statute allows a particular corporation to hold wine and liquor wholesalers' permits. After granting the permits in 1987, the Indiana Alcoholic Beverage Commission apparently second-guessed its own decision in 1991 and sought court guidance as to whether it was right. When the case reached the Indiana Court of Appeals, that court invalidated the statute as violative of the federal constitution.

    In brief, we conclude that the Alcoholic Beverage Commission was right in the first place and that it was unnecessary, and inappropriate, for the Court of Appeals to reach the constitutional issue. Our analysis follows.

on Indiana Wholesale's shareholders and their adult children. Based on the results of this investigation, the Commission determined on September 16, 1987, that Indiana Wholesale satisfied all statutory requirements for corporate wholesaler permittees and issued the wholesalers' permits. Implicit in this determination was the Commission's conclusion that Indiana Wholesale's corporate structure conformed to the requirements of Ind. Code § 7.1-3- 21-5 (1993 & Supp. 1997) (the "Residency Statute"),See footnote 1 the text of which is set forth and discussed in part II, infra.

    National and Olinger, together with Wine & Spirits Wholesalers,See footnote 2 disputed this conclusion and brought suit on September 28, 1987, challenging the validity of Indiana Wholesale's permits. The trial court dismissed the suit and the Court of Appeals affirmed, finding that National, Olinger and Wine & Spirits Wholesalers lacked standing to challenge the award of the permit. See Wine & Spirits Wholesalers of Indiana, Inc. v. Indiana Alcoholic Beverage Comm'n, 556 N.E.2d 17 (Ind. Ct. App. 1990), trans. denied. As such, the Commission's 1987 interpretation of the Residency Statute remained intact.

    However, apparently doubting its own interpretation, the Commission commenced

on August 7, 1991, the present declaratory judgment action seeking "judicial guidance on the meaning and application of [the Residency Statute] with respect to [Indiana Wholesale]." In asking the court's interpretation of the Residency Statute, the Commission did not advance an interpretation of its own. Named as defendants in the action were Indiana Wholesale and National and Olinger.See footnote 3

    Indiana Wholesale moved for summary judgment on the construction and constitutionalitySee footnote 4 of the Residency Statute and also moved to dismiss National and Olinger for lack of standing; the trial court denied the latter motion. On March 4, 1994, the trial court ruled on Indiana Wholesale's motion for summary judgment and found that (1) the Residency Statute was ambiguous; (2) both Indiana Wholesale's and National and Olinger's interpretations were reasonable; and (3) the Commission was the proper body to decide

which meaning to apply. The trial court declined to rule on any constitutional issue.

    All parties appealed the trial court's ruling and presented for appellate review arguments substantially similar to those advanced at trial. The Court of Appeals concluded that (1) the Commission properly named National and Olinger as defendants; (2) both interpretations of the Residency Statute facially discriminated against interstate commerce and violated the Commerce Clause; and (3) the Twenty-first Amendment did not save the Residency Statute from "constitutional infirmity." Indiana Wholesale Wine & Liquor Co. v. Indiana Alcoholic Beverage Comm'n, 662 N.E.2d 950, 954 (Ind. Ct. App. 1996). Having resolved the dispute on constitutional grounds, the Court of Appeals did not address any argument relating to the meaning and application of the Residency Statute. Id.

    Upon the petitions of the Commission and National and Olinger, this Court granted transfer on September 18, 1996.

claims that the Court of Appeals erroneously decided the case on constitutional grounds,See footnote 5 and asks this Court to defer to the Commission's original construction of the Residency Statute which the Commission implemented by issuing wholesalers' permits to Indiana Wholesale in 1987.

Ind. Code § 7.1-2-8-3 (1993).

    The Court of Appeals found that, although the Commission could not have maintained a similar action under the Uniform Declaratory Judgment Act,See footnote 7 the option nonetheless was available to the Commission due to the unique nature of Ind. Code § 7.1-2-8-3. Indiana Wholesale Wine & Liquor Co., 662 N.E.2d at 956 n.7. The court also found that, under this statute, the Commission properly named National and Olinger as co-defendants. Id. at 957. See Ind. Code § 7.1-2-8-3 ("The action shall be brought . . . against a permittee or other person.") (emphasis added). We agree with and incorporate by reference this portion of the Court of Appeals' opinion into our decision today. Ind.Appellate Rule 11(B)(3).

    (b) The commission shall not issue an alcoholic beverage wholesaler's permit of any type to a corporation unless at least one (1) of the stockholders shall have been a resident, for at least one (1) year immediately prior to making application for the permit, of the county in which the licensed premises are to be situated.

    (c) Each officer and stockholder of a corporation shall possess all other qualifications required of an individual applicant for that particular type of permit.

Ind. Code § 7.1-3-21-5 (emphasis added).

their plain and ordinary meanings. Cox v. Worker's Compensation Bd., 675 N.E.2d 1053, 1057 (Ind. 1996) (interpreting worker's compensation statute); Clifft v. Ind. Dep't of State Revenue, 660 N.E.2d 310, 316 (Ind. 1995) (interpreting controlled substance excise tax statute); Indiana Dep't of Public Welfare v. Couch, 605 N.E.2d 165, 167 (Ind. 1992) (interpreting comparative fault statute). Here, the parties dispute the meaning of the phrase "common stock," which the Commission effectively interpreted as meaning a class of stock, other than preferred, and not necessarily a controlling interest.

    Black's Law Dictionary defines "common stock" as the class of corporate stock representing residual ownership of the corporation, having voting powers, participating in profits by way of dividends (after payment to preferred stockholders), and sharing lastly in corporate property upon dissolution. Black's Law Dictionary 278 (6th ed. 1991).See footnote 9 Traditionally, "common stock" has meant stock that "has a full voting right and unlimited proportionate right to share in the firm's residual earnings." 11 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 5086 (perm. ed. rev. vol. 1990).See footnote 10

    According to its Articles of Incorporation, Indiana Wholesale has authority to issue 1,000 shares of stock, with 500 shares denominated common stock and 500 shares denominated preferred stock. Of those shares issued, Indiana residents own 60% of the common shares; non-residents own the remaining 40% of common shares and 100% of the preferred shares. Indiana Wholesale's Articles of Incorporation require a two-thirds vote of common stockholders for most corporate actions. Preferred stockholders have voting rights in three circumstances: a plan of merger or share exchange, the sale or lease of substantially all corporate assets, and a voluntary dissolution. Approval of any one of these courses of action requires a two-thirds combined vote of common and preferred stockholders. Common stockholders participate in dividend distribution after preferred stockholders are paid in full, and share lastly in corporate property upon liquidation. The corporate structure of Indiana Wholesale therefore comports with the literal language of the Residency Statute as well as with the "plain and ordinary meaning" of the phrase "common stock."See footnote 11

Assembly more than 50 years ago purposely removed any control requirement from the statutory language,See footnote 12 and further distinguished between common stock ownership and control of a corporate wholesaler permittee.

    Throughout the greater part of this century, Indiana has imposed some sort of residency requirement on applicants for alcoholic beverage licenses.See footnote 13 The Alcoholic Beverage Act of 1935 provided in part that:
No liquor wholesaler's permit shall be issued or continued in effect, if issued, to any person who is not a bona fide resident of the State of Indiana and continues to be such resident while said wholesaler's permit is in force, or to any co-partnership any of the members of which are not bona fide residents of the State of Indiana.

1935 Ind. Acts 226, § 17.See footnote 14

    In 1939, the legislature amended the Alcoholic Beverage Act of 1935 to allow corporations to hold beer wholesaler's permits, so long as "the stockholders thereof [are] citizens of the State of Indiana[.]" 1939 Ind. Acts 30, § 2. In 1945, the General Assembly

created the Indiana Alcoholic Beverage Commission, consolidated the residency requirements for beer, wine, and liquor permits, and reduced the resident ownership requirement for corporations to "eighty (80) per centum of outstanding common stock." 1945 Ind. Acts 357, § 10 (emphasis added). By 1965, the General Assembly had reduced further the resident ownership requirement to 60% of common stock. 1965 Ind. Acts 256, § 1. A similar version of the Residency Statute remains in effect today.See footnote 15 See Ind. Code § 7.1-3-21-5.

    The evolution of the Residency Statute arguably evinces a legislative intent not to mandate resident control of corporate wine and liquor wholesaler permittees. Had the General Assembly intended to impose a control requirement, as National and Olinger suggest, it could have retained the broader language of the Alcoholic Beverage Act of 1939, i.e., requiring 100% resident ownership corporate wholesaler permittees; instead, in 1945, it inserted the adjective "common" before the word "stock" and reduced the resident ownership quota to 80%, which it further reduced to 60% in 1965.

    The corporate structure of Indiana Wholesale tracks the literal language of the Residency Statute, and the statute's legislative history suggests that the General Assembly intended to eliminate any control requirement from the statutory language. For these reasons, we agree with Indiana Wholesale and the trial court that the Commission's 1987 interpretation of the Residency Statute is reasonable.

    We conclude that the Commission's actions do not rise to the level of rescission of

its 1987 interpretation. The Commission has never revoked Indiana Wholesale's permits. Nor has it published any additional interpretive materials on the subject of the Residency Statute since issuing wine and liquor wholesalers' permits to Indiana Wholesale in 1987. For these reasons, we find that the Commission's 1987 interpretation of the Residency Statute is still effective.

    On petition to transfer to this Court, the parties reiterate the arguments made in the courts below on the other-than-constitutional issues. As to the constitutional analysis of the Court of Appeals, the Commission and National and Olinger argue that the Residency Statute is per se constitutional or, while facially discriminatory, is saved by the Twenty-first Amendment; Indiana Wholesale invites this Court to adopt the Commission's 1987 interpretation of the Residency Statute and avoid the constitutional issue. For the reasons set forth below, we accept Indiana Wholesale's invitation.

    The doctrine of judicial restraint in deciding the constitutionality of statutes traces its genesis to Chief Justice Marshall,See footnote 18 but it was Justice Brandeis's concurring opinion in Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936), "that gave the principle so much of its enduring importance."See footnote 19 In Ashwander, Justice Brandeis set forth "a series of [seven] rules under which [the Court] ha[d] avoided passing upon a large part of all the constitutional questions pressed upon it for decision." 297 U.S. at 346 (Brandeis, J., concurring). Two of the rules present themselves for invocation in the case at hand. First, "[t]he [Supreme] Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction . . ., the Court will decide only the latter." Id. at 347 (Brandeis, J., concurring) (citing Siler v. Louisville & N.R. Co., 213 U.S. 175, 191 (1909)). Second, "'[w]hen the validity of [a statute] is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that [the Supreme Court] will first ascertain whether a construction of the statute is fairly

possible by which the question may be avoided.'" Id. at 348 (Brandeis, J., concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).

    This doctrine is well established in U.S. Supreme Court jurisprudence. See, e.g., Edward J. DeBartolo Corp v. Florida Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575 (1988) (construing statute to avoid constitutional problems and tracing principle's origins to Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.)); Rescue Army v. Los Angeles Mun. Ct., 331 U.S. 549 (1947) (discussing several Ashwander principles and declining to decide imprecisely presented constitutional issue).

    And we recently discussed its application in Indiana jurisprudence. Citizens Nat'l Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241 (Ind. 1996) ("Both state and federal courts traditionally foreswear deciding a constitutional question unless no non-constitutional grounds present themselves for resolving the case under consideration."). See also Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (discussing Court of Appeal's failure to address four viable non-constitutional theories in favor of deciding a constitutional issue), cert. denied, 502 U.S. 1094 (1992); State v. Darlington, 153 Ind. 1, 4, 53 N.E. 925, 296 (1899) ("[C]ourts will not pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. This court has repeatedly held that questions of this character will not be decided unless such state decision is absolutely necessary to a disposition of the cause on its

merits.").

    We have before us today parties who raise questions of both statutory construction and (primarily as a result of the approach taken by the Court of Appeals) constitutionality. The case thus provides a paradigmatic opportunity for application of the Ashwander principles enunciated above. As this Court has stated previously, "[w]hile a reviewing court can freely choose any apparent statutory or common law basis upon which a judgment can be sustained, constitutional issues are to be avoided as long as there are potentially dispositive statutory or common law issues still alive." Sonnenburg, 573 N.E.2d at 402.

    Here, the Court of Appeals chose not to adhere to the doctrine of judicial restraint, and instead put forth a well-reasoned constitutional analysis of the Residency Statute, ultimately concluding that the statute is unconstitutional. The court justified this resolution by saying that because the Residency Statute _ however interpreted _ is unconstitutional, the issue of statutory construction need not be reached. We reject this justification.

    The judiciary is but one of three co-equal branches of government, each with its own powers and functions. The constitution empowers the legislative branch to make law; the judicial branch to decide cases.See footnote 20 On occasion, to perform properly its constitutional

function, a court must address and resolve the constitutionality of a legislative enactment. But when it does so, it is an exercise of the power to decide the case before it. To do so when not required to decide the case can impinge upon the law-making function which separation of powers reserves for the legislature. The policy of judicial restraint is not "merely procedural" but rather is "one of substance, grounded in considerations which transcend . . . limitations. . . . The policy's ultimate foundations . . . lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function[;] the necessity . . . for each [branch of government] to keep within its power; [and] the inherent limitations of the judicial process . . . ." Rescue Army, 331 U.S. at 570-71.

    Here, the Court of Appeals failed to recognize the inherent limitations of the judicial process and instead violated the reviewing court's duty "first [to] ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Ashwander, 297 U.S. at 348 (Brandeis, J., concurring). Rather than confronting the constitutional question ab initio, the Court of Appeals had several avenues available to it. It could have remanded the issue to the Commission for a definitive interpretation of the Residency Statute. Or it could have found the Commission's 1987 interpretation to be reasonable. This would have avoided the constitutional question because none of the parties

directly challenged at that time the constitutionality of the Commission's interpretation. Only by adopting National and Olinger's interpretation would it have needed to address the constitutionality of the Residency Statute;See footnote 21 then the court would have addressed the issues in the proper order. Because the underlying issue in this case was one of statutory construction, separation of powers among the branches demanded that the Court of Appeals not decide the constitutionality of the Residency Statute unless resolution of the issue was necessary to decide the dispute before it.

    Our statutes are clothed with a presumption of constitutionality. See Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996); Indiana Dep't of Envtl. Mgmt. v. Chemical Waste Mgmt., Inc., 643 N.E.2d 331, 336 n.2 (Ind. 1994). In the absence of a direct challenge to the constitutionality of the Commission's interpretation of the Residency Statute, the Court of Appeals rendered a judgment exceeding the scope of the issues before it and unnecessary to the disposition of the case. See Ashwander, 297 U.S. at 347 (Brandeis, J., concurring) ("The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." (citations and internal quotation

marks omitted)).

    This Court repeatedly has refused to adjudicate constitutional questions when presented with other dispositive issues. See, e.g., Pence v. State, 652 N.E.2d 486 (Ind. 1995) (statutory challenge by citizens and taxpayers dismissed for lack of standing); Chemical Waste Mgmt., 643 N.E.2d 331 (challenge to good character statute dismissed for unripeness, although Court did comment on constitutional issues as guidance for agency's future application of statute). Here, we face a dispute over statutory construction which we can resolve by deferring to the reasonable interpretation of the administrative agency charged with enforcing the statute. Consistent with the demands of separation of powers, we decline to address the constitutionality of the Residency Statute and find that the Court of Appeals erred in doing so.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.

an analogous function. Indiana Dep't of Envtl. Mgt. v. Chemical Waste Mgt., Inc., 643 N.E.2d 331, 336 (Ind. 1994).

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