Ex Parte Furton

215 S.W. 331, 86 Tex. Crim. 149, 1919 Tex. Crim. App. LEXIS 364

• Court: Court of Criminal Appeals of Texas
• Decided: May 14, 1919
• Docket: No. 5337.
• Status: Published

Opinions

This is an original application for a writ of habeas corpus. The record discloses that at the time of the offense charged, the sale of intoxicating liquors was prohibited throughout Dallas County by the adoption of the local option law. It is charged in separate counts of the indictment that relator "did have and keep" intoxicating liquors in a public road in Dallas County and that in said county he unlawfully transported such liquors for other than sacramental, medicinal, mechanical, or scientific purposes. He demands release on the proposition that "to have or keep" intoxicating liquors in a public road in prohibited territory, or to transport such liquor in such territory is not illegal when not intended for an illegal or unlawful use.

Both counts in the indictment relate to alleged violations of the amended Allison Shipping Law, embodied in Chap. 67, Acts of the Thirty-third Legislature, and Chap. 31, Acts of the Thirty-fifth Legislature, fourth called session, wherein it is declared unlawful "to have or keep" intoxicating liquors for personal use or otherwise in a public road or other public place in a district in the State in which the local option prohibition law is in force; and also prohibits the transportation of such liquors in such district, each of said provisions containing exceptions, namely, that it is not unlawful "to have or keep" such liquors in the home, nor to personally carry it into such district for personal use.

It affirmatively appears that the offense charged took place in Dallas County, in which at the time the sale of intoxicating liquors was prohibited by the adoption of the local option prohibition law by vote of the people in accord with the Constitution and laws of the State. The right and power of the Legislature to pass the laws mentioned is challenged. The reason for relator's contention is not made quite clear to the writer. His references to Chap. 24, Acts of the Thirty-fifth Legislature, fourth called session, the State-wide prohibition law, occur to the writer as not pertinent for the reason that the Allison law supra, was passed at the same session of the Legislature at which the State-wide law was passed, and the Allison law having special reference to those areas in the State in which the sale of intoxicants was prohibited under the local option law, its provisions with reference to the shipment and transportation would prevail in such territory over any provisions in Chap. 24, supra, upon the same subject, such is the effect of the rule that in the construction of acts of the same session of the Legislature the whole must be taken and construed as one act. Cain v. State, 20 Tex. 355; Joliff v. State,53 Tex. Crim. 61. In view of the construction given section 20 Art. 16, of the Constitution by this court and the Supreme Court in various decisions rendered, we are unable to concur in the suggestion that the limitation upon the legislative power therein contained would have the effect of condemning the law in question. That that section is restrictive of the method of prohibiting sales of such liquors is held in Ex parte Myer,84 Tex. Crim. 288, 207 S.W. Rep., 100, to which we are referred; but that that restriction is not extended to prevent the legislature from passing laws in aid of the enforcement of the prohibition against sales, has been so often declared that its re-assertion would seem superfluous were it not done in response to the points urged by the learned and able counsel for the relator. The laws in question were, in the opinion of the Legislature, adapted to making the enforcement of the local option prohibition law in districts in which it was in force, more effective. With that end in view the transportation into such territory and the keeping in a public place, therein, with the exceptions named, have been denounced as a felony. The principle that would condemn them was involved against the so-called blind tiger law which, to the same end and by similar means, fixed a penalty for the sale of such liquors in prohibited territories by means of blind tiger, which penalty was in excess of that for making sales under the local option law. The contention was answered by the court in the following terse language by the present Presiding Judge: "We think the statute defining and prohibiting the sale of liquor by means of a blind tiger is not violative of a constitutional provision, and it is within the power of the Legislature to prohibit sales of intoxicants in this manner, and prescribe a higher punishment for this character of sale than is provided against other characters of sale." Schwulst v. State, 52 Tex.Crim. Rep..

The Supreme Court, in passing upon the power of the Legislature to authorize the use of the writ of injunction by officials as an auxiliary to the enforcement of the local option law, affirmed the existence of such power. Ex parte Dupree, 101 Tex. 150 [101 Tex. 150]. And in Dupree v. State, 102 Tex. 455 [102 Tex. 455], said: "The proposition that only sales may be prohibited has sometimes been thought to imply the further one that the prohibition can only be enforced by denouncing and punishing as an offense the completed sale. This restricts the power granted within too narrow limits." The same principle was applied in Snearley's case, 40 Tex.Crim. Rep. in which a license regulation applicable to the sale of intoxicating liquors for the purposes permitted by the local option statute in prohibited territory was upheld; and in Fitch v. State,58 Tex. Crim. 377, the court rejected the contention here made touching the extent of the restriction imposed on the Legislature by section 20, Article 16 in giving sanction to the law which created the offense of pursuing the business of unlawfully selling intoxicating liquors in prohibited territory and fixing a punishment therefor more severe than that imposed under the local option law for making individual sales of such liquors. While at the time they were rendered there was expressed a conflict of views by members of the court in Snearley's case and in the Fitch case, these decisions have been uniformly followed, Gearhart v. State, 81 Tex.Crim. Rep., 197 S.W. 187, and the correctness of the Schwulst case, supra, has not been challenged.

We are referred by counsel to Ex parte Hopkins, 75 Tex. Crim. 611, and to Longmire v. State, 75 Tex.Crim. Rep.. In these cases the original Allison Act, chap., 67, Acts Thirty-third Legislature was construed, and while there was lack of harmony among the judges touching its provisions, the conclusion reached by the majority, so far as it bears upon the present question, was that it was within the legislative power to provide that the citizen could not carry intoxicating liquors into districts of the State in which the sale was prohibited, except for his personal use or for that of members of his family.

That the provisions of the law in question, with the limitations named, are not obnoxious to the Constitution of the United States is, we think, demonstrated by the enactment of the so-called Webb-Kenyon Law by Congress and its enforcement and construction by the United States Supreme Court. An example is found in Clark Distilling Co. v. Western M. R. Co.,242 U.S. 311, 61 L.Ed. 326. The question arose upon the application of the Webb-Kenyon law to a statute of West Virginia, which is quite similar to the statute in question, in that it made unlawful the having or keeping of intoxicating liquors in a public place for personal use or otherwise, and also prohibited their transportation. The Supreme Court held that the extreme provision of the State law in question did not render inoperative, upon shipments of intoxicants to the State of West Virginia, the act of Congress. From the decision we take the following quotation:"

"It is only necessary to point out that the considerations which we have stated dispose of all contentions that the Webb-Kenyon Act is repugnant to the due process clause of the 5th Amendment, since what we have said concerning that clause in the 14th Amendment as applied to State power is decisive.

"Before concluding, we come to consider what we deem to be arguments of inconvenience which are relied upon; that is, the dread expressed that the power by regulation to allow state prohibitions to attach to the movements of intoxicants lays the basis for subjecting interstate commerce in all articles to State control, and therefore destroys the Constitution. The want of force in the suggested inconvenience becomes patent by considering the principle which, after all, dominates and controls the question here presented; that is, the subject regulated and the extreme power to which that power may be subjected. The fact that regulations of liquor have been upheld in numberless instances which would have been repugnant to the great guaranties of the Constitution but for the enlarged right possessed by government to regulate liquor, has never, that we are aware of, been taken as affording the basis for the thought that government might exert an enlarged power as to subjects to which, under the constitutional guaranties, such enlarged power could not be applied. In other words, the exceptional nature of the subject here regulated is that basis upon which the exceptional power exerted must rest, and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guranties of the Constitution, embrace."

To the point that the statute in question in the instant case does not deny any right guaranteed by the Federal Constitution, we refer to a recent decision of the United States Supreme Court in which it is said:

"It must now be regarded as settled, that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guaranties of the 14th Amendment: Bartemeyer v. Iowa, 18 Wall, 129, 31 L.Ed., 929; Boston Beer Co. v. Massachusetts, 97 U.S. 25, 33, 24 L.Ed., 989, 992; Mugler v. Kansas, 123 U.S. 623, 662, 31 L.Ed., 205, 210; 8 Sup.Ct. Rep., 273; Crowley v. Christenson, 137 U.S. 86, 91 34 L.Ed. 620, 623, 11 Sup.Ct. Rep., 15; Purity Extract Tonic Co. v. Lynch226 U.S. 192, 201, 57 L.Ed., 184, 187, 33 Sup.Ct. Rep., 44; Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 320, 321, 61 L.Ed., 326; 335, 336, L.R.A. 1917-B, 1218, 37 Sup.Ct. Rep., 180, Ann. Cas. 1917B, 845; Seaboard Air Line R. Co. v. North Carolina, 243 U.S. 298, ante, 299; 38 Sup.Ct. Rep., 96.

"As the State has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. Booth v. Illinois,184 U.S. 425, 46 L.Ed., 623, 22 Sup.Ct. Rep., 425; New York ex rel. Silz v. Hosterberg, 211 U.S. 31, 35 L.Ed. 75, 29 Sup.Ct. Rep., 10; Murphy v. California, 225 U.S. 623, 56 L.Ed. 1229, 41 L.R.A. (N.S.) 153, 32 Sup.Ct. Rep., 697; and Rast v. Van Doman L. Co., 240 U.S. 342, 364, 60 L.Ed. 679, 689, L.R.A. 1917A, 421, 36 Sup. Ct. Rep., 370, Ann. Cas. 1917B, 455. And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inhibitions of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose." Crain v. Campbell, 245 U.S. 308.

The statute considered was more drastic than that here involved, and in fact was restrictive to a degree which has been held unauthorized under several of the State constitutions. Ex Parte Wilson, 119 Pac. Rep. 596; Com. v. Campbell, 24 L.R.A. (N.S.) 172; Com. v. Smith, L.R.A. 1915D, 172.

We mention the case of Crain v. Campbell, for the purpose of illustrating the trend of the decisions of the United States Supreme Court in the interpretation of the Federal Constitution, and not as indicating that under the Constitution of this State a law in the terms of the Idaho statute would be valid. That question is not before us. The views we are expressing are limited to the law which we are called upon to construe. Many of the states of the Union having provisions in their bill of rights substantially like ours, have passed laws similar to that in question here; that is, forbidding the keeping of intoxicating liquors in public places, in localities where the sale of such liquors was prohibited, and limiting the transportation of such liquors into such territory, and in numerous instances the courts have sustained such acts. A notable and recent case is Dulaney v. Plunkett, L.R.A. 1917D, p. 926, in which the Supreme Court of Georgia upheld a statute quite similar to the one in question, and in so doing rendered a decision which in reasoning and citation of precedents is interesting but too long to quote. Other illustrations will be found in Van Winkle v. State, (Del.), 91 Atlantic, 385; Burt v. State, (Ala.), 72 Southern Rep., 266; State v. Wignall, 150 Iowa 650; 34 L.R.A. (N.S.) 507; Mayness v. State (Okla.) 119 P. 644; Atkinson v. So. Ex. Co., (S.C.), 48 L.R.A. (N.S.), 349; State v. Seaboard Air Line, 169 N.C. 296; Glen v. So. Ex. Co., 170 N.C. 286; Am. Ex. Co. v. Beer, Ann. Cas. 1916D, 127, 107 Miss. 528; Danciger v. Cooly, (Kan.),157 P. 455; Com. v. Mixer, 207 Mass. 141; Adams Ex. Co. v. Com. (Ky.), 157 S.W. 908, 48 L.R.A. (N.S.) 342.

Statutes in effect like the one in question have been so generally sustained, that in the absence of some provision of our own Constitution, which would render inapplicable the decisions in other jurisdictions, we are not warranted, in the opinion of the writer, in deciding that the Legislature is impotent to pass a valid law, prohibiting the owner of whisky from "having or keeping" it in a public road or place, where its sale is prohibited, or to prohibit his carrying it into such territory except for the use of himself or his family, or for the purposes for which the statute, by its terms, permits its transportation into such territory. Especially is this true in view of the opinion in Longmire v. State, 75 Tex.Crim. Rep., from which we take the following: "We hold that the proper construction of this Act shows that it was the intention of the Legislature to prohibit, and by its terms they do specifically prohibit, the shipment, transportation, carriage (personal or otherwise), and delivery of intoxicating liquors into prohibition territory for any purpose other than for medicinal, scientific, and sacramental purposes, and the personal use (and members of his family) of the person receiving same; that a law with such intent and purpose has a place in the system of laws intended to prevent illegal sales of intoxicating liquors in prohibition territory; and that the law as thus construed, is valid, and violative of no provision of the Constitution."

The Act amending chapter 67, Acts Thirty-third Legislature, was passed at a special session of the Legislature, and the suggestion is made that under Section 40, Article 3, of the Constitution, the amendment was void because not embraced in the subject upon which the Legislature was, under the proclamation and messages of the Governor, permitted to consider, Sect. 40, Art. 3, declares that there shall be no legislation upon subjects other that those designated in the Governor's proclamation or message.

In his proclamation calling the special session, the Governor called on the Legislature to pass a law prohibiting the sale of intoxicating liquors within ten miles of any army camp; also to prohibit sale or gift to soldiers throughout the State. Elaborating his objects in subsequent communications, the Governor attached correspondence between himself and the Secretary of War, in which it is made plain that the design was to prevent intoxicants reaching the soldiers who were training at various localities in the State, and the means suggested was to designate zones in which such liquors "shall not be allowed."

We are of the opinion that the Governor, in his proclamation and messages submitted to the Legislature the subject of legislation to restrict the liquor traffic and render such liquor inaccessible to the soldiers. It is not contemplated that the Governor shall state the details of legislation in order to give the Legislature jurisdiction to consider it at a special session. Brown v. State, 32 Tex.Crim. Rep.. He must submit the subjects, but the methods are within the discretion of the Legislature. Long v. State, 58 Tex.Crim. Rep.. It was held that a call "To reduce taxes, both ad valorem and occupation, as it may be found consistent with the support of efficient State government," embraced the whole subject of taxation, and authorized the levy of taxes on property and occupations not previously taxed. Baldwin v. State, 21 Texas Crim. App., 592.

The messages, however, having had in contemplation the designation of localities "in which intoxicating liquors shall not be allowed" would seem to embrace the statute in question even under a more narrow construction of the scope of the Governor's messages.

If it were granted, however, that chapter 31 of the Act of the Thirty-fifth Legislature was not valid, it would not follow that the offense charged would not be within the purview of chapter 67, Acts Thirty-third Legislature.

One count in the indictment charged that, relator transported whisky into Dallas County for other than sacramental, mechanical, medicinal or scientific purposes. The general purpose and scope of chapter 67, Acts Thirty-third Legislature, as it appeared on the statutes before the amendment of 1918 was made, was to prohibit the transportation of intoxicating liquors into parts of the State in which the sale of such liquor was prohibited by law. See Act Thirty-third Legislature, First Called Session, p. 62, chap. 31. Various exceptions were embraced, and we quote section 12 as follows: "It shall not be necessary in any prosecution under this Act to negative the exceptions herein made, but the same shall be available to the defendant as purely defensive matters." Aside from this clause in the Allison law, under the general rule in habeas corpus cases, the indictment charging that the liquors were unlawfully transported into prohibited territory, would sufficiently charge an offense to suffice, on application, for habeas corpus, unless there was no law on which the prosecution could be founded. Ex parte McKay, 82 Tex. Crim. 221, 199 S.W. Rep., 637.

The application is dismissed and the relator remanded to the custody of the Sheriff of Dallas County.

Dismissed.

Delivered May 14, 1919.

DAVIDSON, PRESIDING JUDGE (dissenting).