Relator is under arrest charged with the sale of intoxicating liquors in violation of section 2 of the Act of the Thirty-fifth Legislature, which reads as follows:
"The sale, barter, or exchange of spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, except for medicinal, scientific, mechanical and sacramental purposes, are hereby prohibited within this State." (Acts 35th Leg., 4th Called Session, chap. 24, p. 37.)
He seeks release on writ of habeas corpus, insisting that this section
of the Act of the Legislature is inoperative because in conflict with section 20 of article 16 of the Constitution, which reads:
"The Legislature shall at its first session enact a law whereby the voters of any county, justice precincts, towns or cities (or such subdivisions of a county as may be designated by the Commissioners Court of said county), may by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."
This clause, except the part in parenthesis, was incorporated in the Constitution adopted in 1876. The part in parenthesis was put in by amendment adopted in 1891. In June, 1876, the Fifteenth Legislature, in obedience to this provision of the Constitution, enacted a local option law providing for the holding of elections in the counties and subdivisions named, and providing that when at such an election the majority of the votes were cast "for prohibition" the sale of intoxicating liquors, except for medicinal and sacramental purposes, be absolutely prohibited within the prescribed bounds "until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise." The Act also contained a provision to the effect that if prohibition carried, another election within the same limits should not be held within less than twelve months. Gammel Laws, vol. 8, p. 862.
Prior to the passage of the Act of the Thirty-fifth Legislature mentioned, no effort was made to put absolute prohibition of the sale of intoxicating liquors in effect in the State, or any part of it, except by means of the local option law which, with certain amendments, is still in force, unless annulled by the Act in question, and during the forty years intervening since its passage such prohibition has been put in force by a vote of the people in localities embracing the greater part of the State. From what has been said it follows that the exact question here presented has never been before the courts. In numerous instances the construction of section 20, article 16, supra, in connection with the local option laws, has been involved and passed upon. Examples are Lewis v. State, 58 Tex.Crim. Rep.; Ex parte Elliott, 44 Tex.Crim. Rep.; Cross v. State, 49 Tex. Crim. 437; Lawhon v. State, 26 Texas Crim. App., 101; Robinson v. State, 26 Texas Crim. App., 82; Dawson v. State, 25 Texas Crim. App., 670; Ex parte Fields, 39 Tex.Crim. Rep.; Ex parte Rippy, 44 Tex.Crim. Rep.; Adams v. Kelley, 17 Texas Civ. App. 479[17 Tex. Civ. App. 479], 44 S.W. Rep., 529; Ex parte Pollard, 51 Tex.Crim. Rep.; Ex parte Mills,46 Tex. Crim. 224; Schwartz v. State, 103 Tex. 119
[103 Tex. 119]; County v. Beall, 98 Tex. 104; Fox v. State, 53 Tex.Crim. Rep.; Keller v. State, 87 S.W. Rep., 669; Ex parte Brown, 38 Tex.Crim. Rep.; Stalworth v. State, 16 Texas Crim. App., 345; Holley v. State, 14 Texas Crim. App., 507; Texas Brewing Co. v. State,106 Tex. 121.
It is obvious that section 2 of the Act, which prohibits the sale of intoxicating liquors, can not operate in territory where the local option
prohibition law has been adopted by the people, unless we are prepared to abandon the settled construction given by this court to section 20, article 16, of the Constitution. An example of this construction is found in the case of Dawson v. State, 25 Texas Crim. App., 670, wherein are announced principles which have so frequently been applied by this court that we deem it not amiss to reproduce, to some extent, the language used in that decision wherein Judge Willson, writing the opinion, said:
"The extent of the power conferred upon the Legislature by section 20, supra, was to enact a law enabling the qualified voters of the localities designated to determine, in accordance with such law, whether the sale of intoxicating liquors shall be prohibited within specified limits. No power was conferred upon the Legislature to prohibit the sale of intoxicating liquors, but such power was vested alone in the qualified voters of the localities named — such power to be exercised by them in the manner to be provided by the Legislature. It is only by a majority vote of the qualified voters of a locality that the sale of intoxicating liquors within the limits of said locality can be prohibited. . . . This will, this power on the subject, is absolute and exclusive in the qualified voters of the locality. . . . If the power exists in the Legislature to deprive the locality of the right to have another election, for the period of two years, the same exists to deprive them of such right for ten, twenty or other number of years. . . . They, the qualified voters, enacted the law; it is their creature called into existence by their direct agency, and they alone have the supreme and exclusive power, by a majority vote, to repeal it. It is not within the power of the Legislature to add to or take from, or in any manner infringe upon the law as adopted by the will of the voters — or even, in our opinion, repeal it in that particular locality. Whenever the law has been legally adopted by any particular locality, the subject has passed beyond the domain of legislative action, so that a different law can not, without the sanction of the qualified voters of that locality, given in a legal manner, be imposed upon such locality. . . . Any other view, it seems to us, would invade the constitutional rights of the people of such localities and foist upon them a law which, perhaps, they never would have adopted, a law with respect to which their `option' had never been consulted or ascertained; a law enacted not by them but by the Legislature, without constitutional right."
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Relator is under arrest charged with the sale of intoxicating liquors in violation of section 2 of the Act of the Thirty-fifth Legislature, which reads as follows:
"The sale, barter, or exchange of spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, except for medicinal, scientific, mechanical and sacramental purposes, are hereby prohibited within this State." (Acts 35th Leg., 4th Called Session, chap. 24, p. 37.)
He seeks release on writ of habeas corpus, insisting that this section
of the Act of the Legislature is inoperative because in conflict with section 20 of article 16 of the Constitution, which reads:
"The Legislature shall at its first session enact a law whereby the voters of any county, justice precincts, towns or cities (or such subdivisions of a county as may be designated by the Commissioners Court of said county), may by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."
This clause, except the part in parenthesis, was incorporated in the Constitution adopted in 1876. The part in parenthesis was put in by amendment adopted in 1891. In June, 1876, the Fifteenth Legislature, in obedience to this provision of the Constitution, enacted a local option law providing for the holding of elections in the counties and subdivisions named, and providing that when at such an election the majority of the votes were cast "for prohibition" the sale of intoxicating liquors, except for medicinal and sacramental purposes, be absolutely prohibited within the prescribed bounds "until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise." The Act also contained a provision to the effect that if prohibition carried, another election within the same limits should not be held within less than twelve months. Gammel Laws, vol. 8, p. 862.
Prior to the passage of the Act of the Thirty-fifth Legislature mentioned, no effort was made to put absolute prohibition of the sale of intoxicating liquors in effect in the State, or any part of it, except by means of the local option law which, with certain amendments, is still in force, unless annulled by the Act in question, and during the forty years intervening since its passage such prohibition has been put in force by a vote of the people in localities embracing the greater part of the State. From what has been said it follows that the exact question here presented has never been before the courts. In numerous instances the construction of section 20, article 16, supra, in connection with the local option laws, has been involved and passed upon. Examples are Lewis v. State, 58 Tex.Crim. Rep.; Ex parte Elliott, 44 Tex.Crim. Rep.; Cross v. State, 49 Tex. Crim. 437; Lawhon v. State, 26 Texas Crim. App., 101; Robinson v. State, 26 Texas Crim. App., 82; Dawson v. State, 25 Texas Crim. App., 670; Ex parte Fields, 39 Tex.Crim. Rep.; Ex parte Rippy, 44 Tex.Crim. Rep.; Adams v. Kelley, 17 Texas Civ. App. 479[17 Tex. Civ. App. 479], 44 S.W. Rep., 529; Ex parte Pollard, 51 Tex.Crim. Rep.; Ex parte Mills,46 Tex. Crim. 224; Schwartz v. State, 103 Tex. 119
[103 Tex. 119]; County v. Beall, 98 Tex. 104; Fox v. State, 53 Tex.Crim. Rep.; Keller v. State, 87 S.W. Rep., 669; Ex parte Brown, 38 Tex.Crim. Rep.; Stalworth v. State, 16 Texas Crim. App., 345; Holley v. State, 14 Texas Crim. App., 507; Texas Brewing Co. v. State,106 Tex. 121.
It is obvious that section 2 of the Act, which prohibits the sale of intoxicating liquors, can not operate in territory where the local option
prohibition law has been adopted by the people, unless we are prepared to abandon the settled construction given by this court to section 20, article 16, of the Constitution. An example of this construction is found in the case of Dawson v. State, 25 Texas Crim. App., 670, wherein are announced principles which have so frequently been applied by this court that we deem it not amiss to reproduce, to some extent, the language used in that decision wherein Judge Willson, writing the opinion, said:
"The extent of the power conferred upon the Legislature by section 20, supra, was to enact a law enabling the qualified voters of the localities designated to determine, in accordance with such law, whether the sale of intoxicating liquors shall be prohibited within specified limits. No power was conferred upon the Legislature to prohibit the sale of intoxicating liquors, but such power was vested alone in the qualified voters of the localities named — such power to be exercised by them in the manner to be provided by the Legislature. It is only by a majority vote of the qualified voters of a locality that the sale of intoxicating liquors within the limits of said locality can be prohibited. . . . This will, this power on the subject, is absolute and exclusive in the qualified voters of the locality. . . . If the power exists in the Legislature to deprive the locality of the right to have another election, for the period of two years, the same exists to deprive them of such right for ten, twenty or other number of years. . . . They, the qualified voters, enacted the law; it is their creature called into existence by their direct agency, and they alone have the supreme and exclusive power, by a majority vote, to repeal it. It is not within the power of the Legislature to add to or take from, or in any manner infringe upon the law as adopted by the will of the voters — or even, in our opinion, repeal it in that particular locality. Whenever the law has been legally adopted by any particular locality, the subject has passed beyond the domain of legislative action, so that a different law can not, without the sanction of the qualified voters of that locality, given in a legal manner, be imposed upon such locality. . . . Any other view, it seems to us, would invade the constitutional rights of the people of such localities and foist upon them a law which, perhaps, they never would have adopted, a law with respect to which their `option' had never been consulted or ascertained; a law enacted not by them but by the Legislature, without constitutional right."
Deciding that an Act of the Legislature changing the offense of violating the local option law making it a felony could not be effective in a county that adopted the law while the offense was a misdemeanor, this court, in an opinion written by Judge Ramsey, after an exhaustive review of the subject, the decisions and legislative enactments, says: "The first time the question came before this court was in the case of Dawson v. State, 25 Texas Crim. App., 670. This decision was rendered by this court when composed of Judges White, Hurt and Willson. While it does not involve the precise question here raised, in principle,
the rule there announced is conclusive of the question before us. . . . The decision in that case has been many times questioned and often assailed, but has remained the settled rule of this court from that day until this, and has been in terms applied by the court to the very question here raised. . . . We have thus reviewed, at more length than might ordinarily seem either desirable or necessary, the decisions of this court, which, for almost a quarter of a century, through many changes of the personnel of its members, have uniformly and without dissent held to the proposition that it is not within the power of the Legislature to impose upon a community which had theretofore adopted the local option law, penalties and forfeitures which did not exist at the time of such adoption, and which rule had many times, by line upon line and precept upon precept, been enforced and established." Lewis v. State, 58 Tex.Crim. Rep.. Adverting to the Acts of the Legislature passed subsequent to the rendition of the opinion in the Dawson case, the court in the Lewis case states the conclusion that the construction of the Constitution therein had been adopted by the Legislature. This rule of approval of judicial interpretation would likewise apply to the re-adoption of the clause of the Constitution in 1891. Black on Interpretation of Laws, p. 32.
There are many localities in the State which adopted the local option law at a time when, under its provisions, its violation constituted a misdemeanor. Others adopted it after the offense became a felony with the benefit of suspended sentence. Under the rule established in the Lewis case, supra, and often since applied, prosecutions for the sale of intoxicating liquors are punished in some localities by fine and imprisonment; in others by confinement in the penitentiary with the privilege of suspended sentence, and under the principles which are laid down in the Dawson case, supra, and of which Judge Ramsey, in the forceful language quoted, declares to constitute the settled rule of this court, the Legislature is without power to make in any of these instances the punishment for the sale of intoxicating liquors more severe without the consent of the people affected. The law in question, making the penalty a felony in all cases without the benefit of suspended sentence, can not operate.
The local option prohibition law provides that it shall continue in force "until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise." The law in question puts no limitation upon the time it shall continue in force, and affords the voters in the locality no option to discontinue it. In these respects the people of the locality are deprived of rights which, according to the construction of the Constitution given by this court in the Dawson case, supra, and reaffirmed in the Lewis case and others therein cited, of which the Legislature has no right or power to deprive them. Such right, giving effect to the decisions mentioned, could be exercised only in the event that the law in question should be construed as repealing the local option prohibition existing in the various
localities in which it has been adopted, and this it has been repeatedly declared is beyond the power of the Legislature. See Ex parte Elliott, 44 Tex.Crim. Rep., to the effect "that the local option law once adopted in a given territory, remains the law in that territory until it is repealed by the voters of the same territory." See also Ex parte Pollard, 51 Tex. Crim. 488.
Speaking of this clause of the Constitution, Chief Justice Brown, writing the opinion of the Supreme Court, said: "The section of the Constitution quoted provides a method — a referendum — by which the voters of a given territory may exercise the sovereign power of legislating upon this subject, which places the law adopted by them above legislative authority, as if it had been embraced in the Constitution." State v. Texas Brewing Co., 106 Tex. 121.
From what has been said it is apparent that in the greater part of the State there is in force prohibition of the sale of intoxicating liquors under a law which is not within the control of the Legislature, because it and its provisions, by the exercise of primary sovereignty vested in the people of the localities by the Constitution, has been fixed in a manner depriving the Legislature of the power to annul or change it without the consent of the people adopting it, and among the provisions so fixed is that which declares that the law shall remain in force only until the people of the district shall decide otherwise; the right to so decide at an election being expressly stated in the law adopted. The principles fixed in our jurisprudence in the manner stated by the court in Lewis v. State, are incompatible with the exercise of the power attempted in the Act in question. They are consistent only with the theory that the clause of the Constitution mentioned so restricts the general power of the Legislature that, while it may pass and enforce laws regulating and restricting the sale of intoxicating liquors, it can only prohibit them in the manner prescribed by the section of the Constitution in question, that is, by a vote of the people affected.
We are referred to the case of Ex parte Bell, 28 Texas Crim. App., 96, as an authority for the contrary view. The prosecution in that case was for pursuing the occupation of a liquor dealer without posting his license in a conspicuous place. No fault can be found with the decision of the court that there was nothing in section 20 of article 16 of the Constitution which was an impediment to the validity of the law in question. The Legislature has now, and at all times since the Constitution was adopted, the power to forbid the saloon business, and the power to destroy it implies a lesser power of imposing conditions upon its conduct. The law involved in the Bell case was not a prohibition law, but a regulation of the sale of intoxicating liquors. Regulation makes the sale conform to prescribed rules. Prohibition interdicts it altogether for beverage purposes. Century Dict., vol. 6, p. 505; Joyce on Intoxicating Liquors, sec. 139; Ruling Case Law, vol. 15, pp. 258-262; Bowman v. State, 38 Tex.Crim. Rep.; Ex parte Hollingsworth, 83 Tex. Crim. 400, 203 S.W. Rep., 1102.
The expression used by Judge Hurt, in writing the opinion in the Bell case, supra, to the effect that the clause in the Constitution mentioned would not prevent the Legislature from passing a law prohibiting the sale of liquor throughout the State, was upon a question not involved. It is in a class of remarks treated in all jurisdictions as dictum of which our Supreme Court said: "Dicta, or even matters of argument not necessary to the decision of the question before the court, as is well known, is never regarded as deciding the law of the case, or as furnishing a rule of action for the court itself in which the case is pending, or even binding upon the judge by whom the opinion was prepared." Smith v. Alston, 40 Tex. 141. The subsequent decisions of this court do not indicate that the expression referred to was regarded as an authoritative decision of the question. Among the cases cited in the opinion in the Lewis case are cases following, by special reference, the Dawson case, and written by Judge Hurt. The case of Ex parte Brown,38 Tex. Crim. 295, in the decision of which Judge Hurt participated, referring to section 20 of article 16 of the Constitution, says: "It occurs to us that this expression of the will of the people on the subject is exclusive of any other method to be pursued by the Legislature. Whatever may be said as to the power of the Legislature of other States, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor traffic under the general police power, the same does not apply with us. We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned."
In Ex parte Vaccarezza, 52 Tex.Crim. Rep., a case involving the construction of a repealing clause of a license law, Judge Brooks, writing the opinion, by way of argument says: "No one seriously insists that the Legislature should pass a prohibition law applying to the whole State without first submitting to the people and having them adopt a constitutional amendment authorizing said Act," adding that whether a constitutional amendment would be necessary was a question upon which the legal profession entertained conflicting views.
Prior to the passage of the present Act the treatment of the subject by the legislative department of this State has been indicative of the view that the clause in the Constitution was an impediment to the establishment of prohibition throughout the State by legislative enactment. This conclusion is drawn from the fact that in 1887, and again in 1911, the Legislature, possessing the requisite two-thirds majority, enacted a joint resolution referring to the people a proposed amendment to the Constitution, the purpose of which was to establish Statewide prohibition of the sale of intoxicating liquors.
The convention framing the Constitution considered the various methods of dealing with the liquor traffic, including regulation, prohibition and local option. See Const., 1875, pp. 80, 103, 556. These
methods were well understood at the time. Freund on Police Power, p. 204; 23 Cyc., pp. 76-78. The language selected by the framers of the Constitution, when its meaning is clear, controls the court in interpreting it. (8 Cyc., 732.) The terms of section 20, article 16, are not susceptible of the construction that the Legislature was simply given the permission to enact a local option law. It is mandatory. Holley v. State, 14 Texas Crim. App., 515; Cooley on Const. Lim., 4th ed., p. 94.
The Constitution, containing a positive direction to the Legislature to pass a law whereby the people, in the counties and subdivisions named, might by majority vote decide from time to time whether the sale of intoxicating liquors should be prohibited within their limits, contains an implication against the Legislature doing anything which would render inoperative and ineffectual the law which the Constitution commands shall be passed. Cooley, Const. Lim., 8th ed., p. 127.
"Where the means for the exercise of a granted power are given, no other or different means can be implied as being more effective or convenient." 8 Cyc., 742. "Being simply a chart containing limitations upon power, whenever the Constitution declares how power may be exercised over any subject, then no power can be exercised over that subject in any manner not clearly within the plain import of the language of the Constitution." Holley v. State, 14 Texas Crim. App., 515. The means in our Constitution named for establishing prohibition of the sale of intoxicating liquors, is that the Legislature shall pass the law, and the people in the localities named may adopt it. The people of the localities named are given, by the Constitution, a part of the legislative power, the power to decide whether the Legislature shall prohibit the sale of intoxicating liquors in their localities, and the power to decide whether it shall continue in force. The right to make these decisions being conferred by the Constitution upon the people mentioned, can be exercised by them only. The fact that they are vested with the power to make the decision, implies that the decision of the question is not left with the Legislature. In the absence of the clause of the Constitution in question, there would be no restriction upon the police power vested in the Legislature to prohibit the sale of intoxicating liquors. Whether it should be prohibited or permitted would be a matter of legislative discretion. If the power of the Legislature to pass laws affecting the whole State is not abridged by the clause in question, its right to pass a license law effective throughout the State can not be denied. It does not possess that power. State v. Texas Brewing Co., 106 Tex. 121.
"When the Constitution defines the circumstances under which a right may be exercised, the specification is an implied prohibition against legislative interference to add to the condition." Cooley, Const. Lim., 4th ed., p. 78; Parks v. West,102 Tex. 11.
The command to the Legislature in section 20, article 16, supra, to pass a law whereby the voters may determine whether the sale of intoxicants shall be prohibited, defines the circumstances under which
prohibition of such sales may be made effective. These circumstances require the act of both the Legislature and the voters; neither can effect the object without the co-operation of the other.
If the law in question be sustained, the powers vested in the people of the localities by the Constitution can not be exerted. It is in opposition to the exercise of these powers, and destroys the vitality of the clause in the Constitution. The power to annul, suspend or render dormant this part of the Constitution would carry with it the power to overturn any of its provisions. The framers of the Constitution did not intend that the representatives of the districts of the State should have the authority to set at naught the powers committed to the people of the localities named. On the contrary, the Constitution points out a uniform and exclusive means of establishing prohibition of the sale of intoxicating liquors, withdrawing the subject from the political ferment which would result from its debate at each recurring session of the Legislature. The subject was made one of local self-government, within the control of the people of the localities named, to remain so until such time as the whole people of the State should by their votes change the Constitution.
"Since the Constitution is intended for the observance of the judiciary as well as the other departments of government, and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands." Ruling Case Law, vol. 6, p. 72.
The relator is ordered discharged.
Relator discharged.