HARPER, Judge.
—Relator was indicted by the grand jury of Johnson County, charged with the offense of unlawfully pursuing the business of keeping, maintaining and operating what is commonly known as a cold storage, where intoxicating liquors were kept on deposit for others, in a county in which the sale of intoxicating liquors had been prohibited. Upon being arrested, he sued out a writ of habeas corpus, in his application contending that the law under which he was indicted was unconstitutional and ’void on the several grounds alleged in his application, each of which we will discuss hereafter.
The Act in question reads as follows: “In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, person's, association of persons and corporations that pursue the business of keeping, maintaining or operating what is commonly known as- a ‘cold storage’ or any place by whatever name
known or whether named or not, where intoxicating or nonintoxicating liquors or beverages are kept on deposit for others, or where any such liquors are kept for others under any kind or character of bailment, an annual State tax of two thousand ($2,000) dollars. Counties, incorporated cities and towns, where such business is located, may each levy an annual tax of not exceeding one thousand ($1,000) dollars upon each such place so kept, run, maintained or operated.” (Section 2, Act of Thirty-First Legislature, chapter 20, page 53.)
Section 3 of said acts provides for the application to be filed with the county clerk, and the conditions upon -which he will issue a license.
Eelator contends this is a tax for revenue, and not a police regulation. When we take into consideration the history of such laws and regulations, the purpose and the intention of the Legislature in enacting them, and the entire Act, of which this section is a portion, together with other laws and regulations passed at that session of the Legislature, we do not think the contention can be maintained. It is a matter of current history, known of all men, that such places had been established in that portion of our State where the sale of intoxi- - eating liquors had been prohibited, and in many instances had been used as a blind, or cover whereby the illegal sale of intoxicants might be indulged in by the keeper and manager. When we .take these' things into consideration, the amount of license fee or tax, and, as said by relator, which is beyond the amount that could reasonably be expected to be realized annually in pursuing the business, no person, we think, can seriously contend that the Legislature intended this as a revenue measure, but that it is one of the regulations passed in aid of the enforcement of the local prohibitory law, and to remove one of the evils that had proven a serious impediment to the enforcement of the local option law wherever adopted. We hold that it is not an exercise of the taxing power, but a police regulation, and in discussing the different grounds in relator’s application we will treat the law as a police regulation and not a tax for revenue purposes.
In the first ground relator contends the law is unconstitutional and violates and is inimical to the fourteenth amendment of the Constitution of the United States. In Mugler v. Kansas, 123 U. S., 623, the Supreme Court of the United States says, in holding it the right of the State to pass police regulations:
“This conclusion is unavoidable, unless the fourteenth amendment of the Constitution takes from the States of the Union those powers of police that were reserved at the time the original Constitution wás adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 31, that the fourteenth amendment had no such effect.” In this case it is said: “But neither the amendment— broad and comprehensive as it is—nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people.”
That the regulation of intoxicating liquors is within this power has been affirmed by all the courts. In what is0termed the License Cases (46 U. S., 5 How. 504), the Hnited States Supreme Court saj^s: “The police power extends not only to things intrinsically dangerous to the public health, such as infected rags and diseased meats, but to things which, when used in a lawful manner, are subjects of property and commerce, and yet may be used so as to be injurious or dangerous to the life, the health, or the morals of the people. Gun powder, for instance, is a subject of commerce, and of lawful use, yet because of its explosive and dangerous quality, all admit the State may regulate its keeping and sale. And there is no article which the right of a State to control or prohibit the manufacture of within its limits is better established than intoxicating liquors. This power is inherent in a sovereign State, and may be exercised unless the Constitution of the State inhibits it in so doing.” Our Constitution specifically provides a mode whereby it may be determined whether or not the sale of intoxicating liquors shall be prohibited in a given territory, and where the people elect to so decide, by this clause of the Constitution no power -is taken from the State to enforce it, but we deem jt the duty of the Legislature to enact all necessary laws to accomplish that end.
The second contention is that the Act is inimical to and violates section 35, article 3 of the Constitution of this State, in that it contains more than one subject. We do not think this contention is well founded, for if we view it as a police regulation, it embraces but one subject, object and purpose—the regulation and prohibition of the liquor traffic in territory where it has been prohibited. For a discussion of this question see Ex parte Walsh, 59 Texas Crim. Rep., 409, 129 S. W. Rep., 118, and authorities cited.
It is also contended that the Act is violative of our Constitution in that it deprives the citizens of the State of Texas and all other persons, of the equal right of pursuing the occupation and business of cold storage within the local option districts. The law bears equally on all citizens who seek to do the character of business defined in the Act— makes no exceptions. The same restrictions are placed around each applicant, and any citizen meeting the requirements can obtain a license to pursue the business.
The contention is made that the Act is in violation of section 13, article 1 of the Constitution in that it imposes excessive fines and penalties and cruel and unusual punishment. The courts of this State have sustained the law making it a felony to sell a single drink of intoxicating liquor in the prohibited territory, and this, in making the failure to pay the fee required to obtain a license a misdemeanor, assessing a fine in double the amount of that sum as the penalty for its violation is the usual penalty prescribed for failure to pay the fees assessed under our occupation tax and license laws.
The next contention is, it is violative of and inimical to section 19, article 1 of the Constitution, in that “it deprives citizens of Texas
of their property rights, privileges and immunity of following such occupations and so exercising the rights of a free man, and deprives the citizens of this State of said property rights, privileges and immunities, the license fee being so large as to be prohibitive of the business. In Mugler v. Kansas, 123 U. S. 623, the Supreme Court of the United States declares the law to be:
“It is, however, contended, that, although the State may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, 'no convention or Legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others/ The argument made in support of the first branch of this proposition, briefly stated, is that in the implied compact between the State and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty or property, without due process- of law, and with which the State can not interfere; that among those rights in that of manufacturing for one’s use either food or drink; and that while, according to the doctrines of the Commune, the State may control the tastes, appetites, habits, dress, food and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself.
“It will be observed that the proposition, and the ■ argument made in support of it, equally concede that the right to manufacture drink for one’s personal use is subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S., 124 (24:83), while power does not exist with the whole people to control rights that are purely and exclusively private, government may require 'each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another/
“But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public ? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetite or passions, may be willing to imperil the peace and security of the many, provided only they are permitted 'to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to
determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.
“It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation can not rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, Sinking Fund Cases, 99 IT. S. 718 (25:501), the courts must obey the Constitution rather than the lawmaking department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. ‘To what purpose/ it was said in Marbury v. Madison, 5 U. S. (1 Cranch.) 137, 167 (2:60, 70), ‘are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained ? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty—indeed, are under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transacted the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the .courts to so adjudge, and thereby give effect to the Constitution.
“Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. There is no justification for holding that the State, under the guise merely of police regulations, is here aiming to deprive the citizen of his constitutional rights; for we'can not shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to everyone, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a State deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts can not, without usurping legislative functions, override the will of the people as thus expressed by their
chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government' shall not .usurp powers committed by the Constitution to another department. And so, if, in the judgment of the Legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the Constitution and laws of Kansas, might fail, "if. the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that government interferes with or impairs anyone’s constitutional rights of liberty or of property, when if determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare.
“This conclusion is' unavoidable, unless the fourteenth Amendment of the Constitution takes from the States of the Union those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S., 31 (28:924) that the fourteenth amendment had no such effect. After observing, among other things, that that amendment forbade the. arbitrary deprivation of life or liberty, and the arbitrary spoliation of property, and secured equal protection to all under like circumstances, in respect as well to their personal and civil rights as to their acquisition and enjoyment of property, the court said: ‘But neither the amendment—broad and comprehensive as it is—nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity.’” .
If the Legislature deemed that “cold storage,” where intoxicating liquors are stored for others, without a license to do so, is inimical to the welfare of the citizens of the county where prohibition had been adopted, it is not for this court to declare there was no foundation
for such conclusion, and, if they so adjudged, they may have had as much reason t'o pass this law as to prohibit one from permitting his house to be used as a gambling house, or to prohibit one from running a gaming house, in the interest of public morals. Persons are prohibited in this State from devoting their time, talent, and energies to or pursuing a number of vocations, and are also prohibited from using their houses and property for such purposes, and if the Legislature deems it necessary to prohibit “cold storages” for storage of intoxicating liquors, or require a license to be obtained by all who engage in the business, that it may be known who are so engaged and to control the same, in the interest of the public good and the public morals, and to render more effective the local option law wherever adopted, it is within their province.
The contention of relator that the “Act” gives persons residing in the prohibition territory the exclusive right of conducting and pursuing the occupation of “cold storage,” etc., is not well founded. Ho such construction can be given the law from any standpoint you might view it. •
Paragraphs seven and eight complain that the law is inimical to and violative of sections 1 and 2 of article 8 of the Constitution, in that it is a tax and is not equal and uniform throughout the State, and that it is not equal and uniform upon the same class of subjects within the limits of the authority levying the tax. If we should view this Act as a tax levied for revenue, and give to its provisions the construction able counsel for relator contend (the construction of which will hereinafter be discussed) this contention might be well founded. The law, it is true, as contended by relator, applies only to territory where local option has been adopted, but does that make the law unequal? In the law levjdng a license fee on dealers in intoxicating liquors in territory where local option has not been adopted, we find the following provision: “Section 1. Hereafter there shall be collected from every person, firm, or association of persons, selling spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, in this State,
not located in any county or subdivision of a county, -justice precinct, city or town where local option is in force under the laws of Texas, an annual tax”
etc. This law levies a license fee alone in territory where prohibition is not in force, and if the law applicable alone to prohibition territory is unconstitutional for that reason, then our whole license fails, because the Legislature in about all of its enactments has drawn a clear and distinct line and adopted different license fees and regulations in territory where the sale of intoxicating liquors are permitted, and in the territory where it is prohibited. We do not think the Legislature violates the spirit of any of the provisions of our Constitution in so providing, but is carrying out the plain mandates of the Constitution. When the people of this State met in 1876 to form the organic law which governs us, and which is the supreme law of the land, they, in the different provisions of article
8, recognizing that taxation was a necessity to support the State government, provided that the burden of taxation, when levied, must bear equally upon all—there should be no favoritism and no exemptions, except such as they in said article provided. But in that Constitution, in article 15, section 20, it was also provided that the people of a county or certain subdivision thereof should have the right to prohibit the sale of intoxicating liquors. In construing the Constitution both óf these provisions must be taken into consideration, and be so construed as to effect the purpose and object of the framers of that instrument. They are bound to have recognized that laws passed assessing license fees and for the regulation and control of intoxicating liquors in territory where the sale was permitted could not and would not operate in territory where the sale was prohibited; and likewise that laws passed to render effective the provisions of article 16, section 2, could not and would not operate in territory where the sale was permitted. There is no conflict in the laws, nor do they become unconstitutional by reason of the fact that the Legislature, recognizing all the provisions of the Constitution, limit the effect of the laws in accordance with the spirit and intent of the people of this State as expressed in the Constitution. This has been recognized by this court in upholding the laws in those cases wherein the license fee for selling intoxicating liquors in territory where the sale is permitted in one "amount, and sustaining a law for a less amount in the territory where the sale is prohibited, except upon the prescription of a physician. These laws partake to a great extent of the exercise of the police power by the State, and are not violative of the provisions of the Constitution which provide for the levy and collection of taxes for revenue purposes.
Heither is this Act violative of sections 56 and 57, of article 3 of the Constitution. It is neither a local nor special law, as has been frequently declared by this court. Joliff v. State, 53 Texas Crim. Rep., 65; Logan v. State, 54 Texas Crim. Rep., 74; Smith v. State, 54 Texas Crim. Rep., 302; Wallis v. Williams, 101 Texas, 397; Ex parte Dupree, 105 S. W. Rep., 495; Green v. State, 92 S. W. Rep., 847; Edmanson v. State, decided at the present term of the court and authorities cited.
Appellant in conclusion assigns that the Act is violative of the fundamental principles of our free institutions as expressed in the Declaration of Independence, in the Constitution of the Dnited States, and in the Bill of Bights, and in the Constitution of the State of Texas. If the words in the Act are to be given the broad, comprehensive meaning that counsel for relator in their brief give to them, the Act, of course, would be unconstitutional. An able argument is made defining the powers of government, and in the'main we agree with all that is said in regard thereto, but we do not agree with counsel that the Act relates to or embraces the many agencies or articles of merchandise by
them referred to. The premise upon which the argument is based, being wrong, the principles presented with such distinguished ability are not applicable to this case. With deductions and conclusions of fact reached by relator’s counsel, we do not agree, and think they are not justified by the law in question, and while in the abstract agreeing with all that is said about the history of our country, the growth and principles underlying the law, and that the Constitution is and must always be held supreme, yet all their argument is based upon a wrong construction of the Act in question as we see it. It does not prohibit or regulate “cold storage” in general. It relates only to those places where intoxicating liquors are stored in prohibition territory. If one does not follow the occupation or business of storing named in the Act for others, the law applies not. Any and all other commodities and merchandise may be stored and kept for others, and the many articles of commerce named in relator’s brief do not come within the meaning of the law. What is meant by the words “intoxicating liquors” there is no room for construction, for these words have a well understood legal meaning, and we do not think relator seriously contends that if the Act contained these words alone, that the citation of authorities or argument contained in the brief would apply, if this law is to be construed as a police regulation and not an exercise of the taxing power for revenue purposes.
But relator gives to the words “nonintoxicating liquors or beverages” a meaning we think was never contemplated by the Legislature. Again, we would say, if the construction placed on these words by counsel for relator is correct, then the reasoning in the brief would be sound, and the authorities cited apply. However, we think no rule of law would permit or authorize such construction to be placed on these words, or the terms of the Act in question. We must consider the language used in connection with the evil intended to be corrected, if evil there be, and in, this connection we should take into consideration current history as it relates to the question to which the legislation relates. As said by Chief Justice Taney, 44 H. S., 9 (11 Law. Ed. 469) in the case of Aldridge v. Williams: “The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the Act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists,
with the laws upon the same subject, and loolcing, if necessary, to the public history of the times in which it is
passedSee also 91 H. S., 79; 148 H. S., 494; 66 H. H., 660; 21 Fed., 376; 79 Fed., 320; 122 Ind., 479; 61 Minn., 439. In this State this has always been the rule of construction. In Croomes v. State, 40 Texas Crim. Rep., 672, it is held:
“‘Every statute is to be construed with reference to its intended scope and the purpose of the. Legislature in enacting it; and where the language used is ambiguous, or admits of more than one m'eaning, it is to be taken in such a sense as will conform to the scope of the Act
and carry out the purpose of the statute/ And Mr. Endlich, in his work on the Interpretation of Statutes (page 33) says: ‘But it is another elementary rule that a thing which is within a letter of the statute is not within the statute unless it be also within the meaning of the Legislature; and the words, if sufficiently flexible, must be construed in the sense which, if less correct grammatically, is more in harmony with that meaning. Language is rarely so free from ambiguity as to be incapable of being used in more than one sense, and to adhére rigidly to its literal and primary meaning in all eases would be to miss its real meaning in many. If a literal meaning had been given to the laws which forbade a layman to lay hands on a priest, and punish all who drew blood in the street', the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who bled a person in the street to save his life would have been liable to punishment/ Mr. Sutherland says: ‘Words and clauses in different parts of a statute must be read in a sense which harmonizes with the subject matter and general purpose of the statute. No clearer statement has been or can be made of the law as to the dominating influence of the intention of a statute in the construction in all its parts than that which is found in Kent’s Commentaries: ‘In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms, and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion/ ”
Our Supreme Court has also adopted this rule of construction. In Higgins v. Binker, 47 Texas, 401, Chief Justice Boberts holds: “In the construction of a statute, every part of it must be viewed with the whole, so as to make all parts harmonize, if practicable, and give a sensible effect to each. The presumption must always be in favor of the validity of the laws, unless the contrary is clearly demonstrated. It is the duty of courts to construe statutes to meet the mischief, and to advance the remedy, and not to violate fundamental principles. . . . It is competent for the court in interpreting the meaning and object of laws, to find out and take into consideration the existing facts to which the law is intended to be applied, whether they consist of the ordinary acts of persons, or of the habits of business relating to the subject matter embraced within the law. That which is implied in a statute is as much a part of it as what is expressed,” citing authorities. See also 93 Texas, 444; 15 Texas, 321.
Again in Vance v. Newcombe, 132 U. S., .220, the Supreme Court of the United States says: “It is a rule of interpretation that in cases of doubt or uncertainty, Acts in pari materia, passed either before or after, may be referred to in order to discern the intent of the Legislature in the use of particular terms, or in the enactment of
particular provisions, and within the reason of the rule, contemporaneous legislation, not precisely in pari materia, may be referred to for the same purpose.”
And in United States v. Freeman, 3d How., 562, the Supreme Court of the United States holds: “The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established principle of law, that all Acts in pari mat'eria are to be taken together, as if they were one law.” See also 113 U. S., 560; 45 Ala., 443; 51 Ala., 5
4
15 Ga., 441; 145 Ind., 460; 83 Me., 257; 45 Mich., 564; 126 Mo., 720; 54 Fed. 154.
In our State this has been the rule from the earliest date. In Walker v. State, 7 Texas Crim. App., 259, it is held: “Statutes in pari mat'eria and relating to the same subject are to be taken and construed together, because it is to be inferred that they had one object in view, and were intended to be considered as constituting one entire and harmonious system. See also Cain v. State, 20 Texas, 362; Ex parte Schmidt, 2 Texas Crim. App., 202; Mock v. State, 11 Texas Crim. App., 58; Taylor v. State, 3 Texas Crim. App., 198.
In our Supreme Court the rule is: “Laws relating to same subject and enacted during same session are construed together (Austin v. Gulf, etc., 45 Texas, 266). All statutes relating to the same subject matter should best be given concurrent efficacy in construction, and made to stand together. (Dallam, 402.) In order to arrive at intention of Legislature in statute, all laws in pari materia are to he construed together. (75 Texas, 252.) Two statutes, in pari materia, passed at the same session must be considered as one and be construed together. (24 Texas, 257; 28 Texas, 727; 59 Texas, 183; 71 Texas, 218, and other cases cited in these opinions.)
Again it is held to be a rule of construction that when a law is susceptible of either of one or two constructions, the one which is constitutional will be adopted. (Nobles v. State, 38 Texas Crim. Rep., 332; Johnson v. Hanscomb, 90 Texas, 327; 47 Texas, 435; 73 Texas, 374; 89 Texas, 167.)
The Supreme Court of the United States also declared: “Where the language of an Act will bear two constructions, equally obvious, that one which is clearly in accordance with the provisions of the Constitution is to be preferred.” 187 U. S., 197. “The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 135 • U. S., 648.
With these rules of construction in view, we will now -consider the Act, and give to the words used therein what we think is the proper construction. “The business of keeping, maintaining or operating what is commonly known as a ‘cold storage’ or any place by whatever name known, or whether named or not, where intoxicating or nonintoxicating liquors or beverages are kept .on deposit for others.”
The words “nonintoxicating liquors” relator seeks to give a meaning and construction to which would render the Act invalid under the Constitution. Webster in his Unabridged Dictionary gives the word “liquor” two definitions: First—Any liquid or fluid substance as water, milk, blood, sap, juice, and the like; second—especially alcohol or spirituous fluid either distilled or fermented. Eelator insists that the first definition is the one that should he given to the word as used in the statute and not fermented or distilled spirituous fluid. This would do violence to the intention of the Legislature. It, as we conceive, had no idea of applying the law to such fluids as water, milk, and the like, but it was the second definition it had in view. And in this view we are strengthened when we take into consideration the contemporaneous acts of the Legislature. By reference to the “House Journal” we find the above bill numbered 69, and was introduced by Mr. Cable. On the same day, and at the same time as near as possible, we find that Mr. Cable also introduced House Bill No. 68, levying a license fee of $2,000 on all persons, firms, association of persons, and corporations selling
nonintoxicating malt
liquors, and requiring the persons engaging in such business to procure a license from the county clerk. Sections 2, 3, 4 and 5 of this Act are identical in terms with sections 3, 4, 5 and 6 of the Act now being construed. (See pages 51 and 53 of the Acts of Thirty-First Legislature, chapters 19 and 20.) Section 1 of this Act .requirQS a license for those taking orders for intoxicating liquors, while section 2 is the one under which relator is being prosecuted. Both bills were introduced by the same author, on the same day (House .Journal, pp. 63-64) were reported favorably by the committee on the same day (H. J. 224) were passed by the House on the same day (II. J. 252, 254, 253 and 255). Both were passed by the Senate on the same day (Senate Journal, 413 to 419). They were both approved by the Governor on the same day, and became a law on the same day. So we would do violence to all known rules of construction if they were not considered together, for they both have the same object and purpose—being passed in aid of the enforcement of local option law wherever adopted. As said by our courts, they relate to the same matter, and having the same object and purpose, must be construed together, and when we do so no other meaning can be given to the words “nonintoxicating liquors or beverages” in the latter Act than nonintoxicating malt liquor (a fermented liquor) for which a license fee is required in the first Act herein cited. And when we take into consideration current history, as is authorized by the opinions here recited, we know that men have gone into territory where prohibition has been adopted, selling and pretending to sell malt liquors called “frosty,” “uno,” “ino,” tin top, etc., all of which are fermented malt liquors, which were claimed to be nonintoxicating malt liquors, and under the guise of selling these liquors, would engage in selling intoxicating liquors. Bottles of liquor were thrown in tubs of ice water, with these labels floating about, and it was found
difficult, yea, almost impossible, to detect violations of the local option laws when intoxicating liquors were in fact sold. The control and regulation of this character of business was the intent, object and purpose of the Legislature in enacting the law requiring a license to be obtained and a large tax or fee paid; also providing that in the event anyone should attempt to engage in such business without first obtaining a license he might be enjoined from so doing, and in the event one did obtain license, his place of business would be known, and if under the license, attempt to or sell intoxicating liquors, a writ of injunction might be obtained enjoining him from so doing, thus furnishing a speedy and effective remedy for the enforcement of local option wherever adopted. The whole system or scheme of legislation has but one purpose, and the Legislature had no other intention, and that is to secure an enforcement of the people’s will as expressed at the ballot box in the adoption of the local prohibitory law, and as under a proper construction of the language, nothing is within the provisions of its terms as would impair one’s liberty or property rights except in so far as one might seek to engage in a character of business that the citizens in the exercise of their rights under our State Constitution, have declared to be inimical to the health and happiness of the community, hurtful to the public morals, and destructive of the public peace, we do not think the Act violative of any provision of our State Constitution, or of the provisions of the Constitution of the United States.
It is true, perhaps, that many have engaged in selling and storing these nonintoxicating malt liquors, in good faith, and never sold or stored for others anything intoxicating in it's nature, yet if there be those, and as a matter of judicial history we know there has been those who, under the pretense of engaging in this character of business, have but used it as a shield and cover to engage in the sale of intoxicants, and the Legislature finding that such illicit and improper dealings had grown to such magnitude, concluded that for the best-interest of the citizens ■ of the State that it be controlled and regulated, it is not within the province of the court to say to them nay. Of the wisdom or policy in adopting the local option law, or the Legislature in adopting these regulatory measures in aid of its enforcement, if adopted, it is not our purpose or province to speak. The citizenship within the territory authorized by the Constitution and laws must decide for themselves the wisdom of the adoption of the law, and the legislative branch of the government, when the law has been adopted prohibiting the sale of intoxicants, the wisdom and necessity of laws to secure its enforcement. In this opinion we are speaking only of the restrictions placed on the Legislature by the Constitution of this State and of the United States, and as this Act, and the other Acts passed at the session of the Thirty-First Legislature, in aid of the énforcement of this law when adopted; when construed in accordance with the legislative intent, gathered from the Acts themselves,
and the judicial and public history of the times, and the well known rules of construction, that when two constructions are possible and permissible, it is the duty of the courts to give" to any and all laws that construction which will maintain their constitutionality, we find nothing repugnant in this Act to the Constitutions of the United States or of this State.
Relator is remanded.
Davidson, Presiding Judge, absent.