Ex Parte Townsend

144 S.W. 628, 64 Tex. Crim. 350, 1911 Tex. Crim. App. LEXIS 562

• Court: Court of Criminal Appeals of Texas
• Decided: December 20, 1911
• Docket: No. 1586.
• Status: Published

Opinions

HARPER, Judge.

On October 27, 1911, an information was filed by the county attorney in the County Court of Orange County against the relator, W. H. Townsend, charging him with the offense of pursuing the occupation of selling nonintoxicating malt liquors without paying the tax and procuring the license, as is provided for in chapter 19, page 51, Act of the Thirty-First Legislature. The relator was arrested upon said charge and made application to the county judge of Orange County for a writ of habeas corpus. The writ being refused the relator made application to this court and the application was granted by this court. The relator was released on bond and the case is now before this court on said habeas corpus hearing.

There is an agreed statement of facts upon which the case is submitted in which it is shown that all of the proceedings in the County Court were regular, and if this court is of the opinion that the Act of the Legislature above referred to imposing a tax upon those engaged in selling nonintoxicating malt liquors is constitutional, that being the only question presented, it will follow that the relator should be remanded to the custody of the proper official of Orange County. The facts show that the relator was on the date charged by the information engaged in the grocery business in the city of Orange, and in connection with said business he was engaged in the occupation and was selling cold drinks, including ginger ale, ginger pop, soda water and a malt drink known as "Hiawatha,” without having paid the occupation tax required therefor by law, and without having obtained the license required therefor. It is further agreed in so -far as this case is concerned that "Hiawatha” is a nonintoxicating malt liquor manufactured by the Houston Ice & Brewing Company, of Harris County, Texas; that the Commissioners Court of Orange County has regularly levied a tax of $1,000 on the occupation of selling nonintoxicating malt liquors and that what is known as local option is not in effect in Orange County, there being three malt liquor dealers’ licenses issues in said county under what is known as the Bobertson-Fitzhugh Act, and- the three places are being operated under said malt liquor dealer’s licenses, besides other licenses issued to retail liquor dealers. The relator does not hold a retail liquor dealer or malt dealer’s license, and in fact holds no license of any kind to sell either intoxicating or nonintoxicating liquors.

Since this case was submitted in this court the writer has called the attention of the Attorney-General to the pendency of the cause and to the brief and argument filed herein in behalf of relator by his attorneys in which it was stated he made certain concessions. As the case involves the constitutionality of a very important law in ■this State, and one which was framed to meet the constitutional objections by which a former law on this subject, enacted by the Thirtieth Legislature, was stricken down, and on account of the fact that the brief and argument for relator refers to the views and alleged concessions of the' Attorney-General on a vital issue in this case, in support of his contention in maintaining that this law is unconstitutional, we requested the Attorney-General to file a brief and argument setting forth fully the views of the Attorney-General and the Attorney-General’s department in support of the constitutionality of the Act of the Legislature in question, if he deemed the law valid, which he assured us he did, and so ably has he and his assistants presented the questions involved, we have adopted the brief and argument as the opinion of the court. He states:

"The relator vigorously attacks the validity of the law on two grounds: (1) Because the amount of the tax imposed is prohibitory and prevents the citizens of the State from engaging in a lawful business; and (2) that the Act has the effect to make the 'tax on the pursuit of the business named in it unequal and not uniform, persons in those parts of the State where the Bobertson-Fitzhugh Law is in effect having to pay one amount of tax for the sale of nonintoxicating malt liquors and persons in the other parts of the State having to pay a different tax.

We shall discuss the constitutional questions above mentioned, -but before doing so we desire to call attention to the. statement contained in relator’s brief under the first proposition which, while no doubt inadvertently made, does not in any sense express the views of the Attorney-General, and in justice to himself and his department the Attorney-General feels called upon to say that he has not in any manner heretofore indicated his views on the questions referred to in said statement. The statement referred to as copied in relator’s brief is as follows:

“It is conceded by the Honorable Attorney-General that the Act is prohibitive, that is, that the tax named in it is fixed at such an amount that it would render the conduct of the business in the State unprofitable. That such was indeed the purpose of the Legislature is shown by the subsequent amendment of the Act at the special session, by which the law which had just been passed was so changed, that separate license and another tax was required for each place in the county where the occupation was pursued. It is also conceded by the Attorney-General that nonintoxicating malt liquors are themselves harmless and not deleterious to health.”

There is no evidence in the record and no admission to the effect that the tax imposed is prohibitory, and while the tax is comparatively very high, and will no doubt very materially discourage the sale of nonintoxicating malt liquors, we do not think we are warranted in reaching a conclusion» that the tax is necessarily absolutely prohibitive.

We do not at all agree with the contention that “nonintoxicating malt liquors are themselves harmless and not deleterious to health.” On the other hand, we think the law and facts warrant an exactly opposite conclusion. Our views as to this, however, will be more fully expressed in the discussion of the questions presented.

The Thirtieth Legislature, by chapter 112, page 213, Act of 1907, enacted a law, among other things, placing an annual State tax of $2,000, and authorizing counties and incorporated cities each to levy an annual tax of not exceeding .$1,000 upon all persons, firms and corporations “selling at retail nonintoxicating malt liquors, such as Uno, Ino, Tin Top, and Teetotal, and all other such liquors.” This law was held to be unconstitutional by this court in the case of Ex parte Woods, 52 Texas Crim. Rep., 575, for the reasons that we shall hereafter mention. The present law passed by the Thirty-First Legislature while covering the same subject as that covered by the Act of 1907, is not an amendment of any previous law, but is an independent enactment. The caption shows that it is an Act to levy an occupation tax on all dealers in nonintoxicating malt liquors, and providing for the issuance of licenses, fixing penalties for the violation of the Act and providing for injunctions to prevent its violation. Section 1 of the Act is as follows:

“There is hereby levied upon all firms, persons, associations of persons and corporations selling nonintoxicating malt liquors an annual State tax of two thousand ($2,000) dollars. Counties, incorporated cities and towns where such sales are made may each levy an annual tax of not exceeding one thousand $(1,000) dollars upon all such persons, firms or corporations; provided that this sec tion shall not prevent the sale of such proprietary remedies as 'malt extract/ 'malt medicine’ and 'malt and iron’ manufactured and used exclusively as medicine and not as a beverage, when sold upon the prescription of a regular practicing physician; provided further that not more than one sale shall be made upon any one prescription.’

Section 2 of this law was amended by the second called session of the Thirty-First Legislature, as shown by chapter 9, page 397, Acts Thirty-First Legislature, and by section 2, as amended, it is provided that each person, firm or corporation desiring to engage in the business mentioned in section 1 of the Act, before engaging in the same shall file with the county clerk of the county in which the business is proposed to be pursued an ápplieation in writing for a license to engage therein, and shall state the place or house in which said business is to be pursued, and if within the corporate limits of any incorporated city or town that fact shall be so stated. The applicant is required to pay the tax collector of the county the entire amount of the tax that is levied by the Commissioners Court, and to the city the tax levied by it. The taxes are required to be paid in advance, and no license shall be issued by the county clerk until the person applying therefor shall exhibit receipts showing the payment of all taxes. It is further provided that it shall be unlawful to carry on the' business under such a license at more than one place at the same time. Or in any place other than that named in said application for said license, unless the party carrying on such business shall first file with the county clerk of the county in which said business is carried on a written statement showing such change of place of business.

Section 3 provides that the county clerk shall be required to make report of all licenses issued by the authority of this Act as in other cases.

Section 4 provides a penalty for the violation of this law and makes it a misdemeanor punishable by fine of not less than $100 nor more than $500, and by imprisonment in the county jail for a period of not less than twenty days nor more than ninety days for any person to engage in the business covered by this Act without having procured a license as provided for therein.

Section 5 provides for the issuance of injunctions at the suit of the State against any persons who are engaged in the sale of the liquors covered by this law without having procured a license' as therein required.

We shall first consider the contention of relator that the tax imposed is prohibitive; that nonintoxicating malt liquors are harmless and not deleterious to health; and that the Legislature is without authority to regulate, license or prohibit the sale thereof, or to place such a heavy tax burden thereon. It is claimed that the Legislature has no authority to enact this law under the taxing power nor under the inherent police power of the State. This brings us immediately to what is meant by the police power. It is difficult to find a satisfactory definition to this term, or to very definitely mark its boundaries. • Many courts and text-writers have undertaken to define it, and it has been the subject of judicial inquiry from time immemorial. 8th Cyc., page 863, defines it as follows:

“Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires.”

Practically all of the definitions include within the police power the right to regulate or prohibit occupations which endanger the health, morals or safety of the people. See Words & Phrases defined, vol. 7, page 5424 et seq. This power is inherent in governments and may be exercised by every sovereign State through its law-making agency, independently of any specific or general grant of constitutional authority. And it may be said that, as to every subject coming within the- police power, there is no limitation upon the exercise of the power by the legislative body of a State, except such specific limitations as may be found in the Constitution of the State or of the United -States. As the use of intoxicating liquors is well nigh universally acknowledged to be injurious to the health, morals and ■safety of the people, it has long been conceded that the regulation and prohibition of the manufacture and sale of such liquors are peculiarly within the police power of the several States. Under this theory of government innumerable kinds of regulatory and prohibitive laws have been passed. Some of them amount to absolute prohibition, and many of them impose the most drastic license conditions, and carry with them extremely burdensome license or tax charges. Unless there was a constitutional inhibition, the prohibitive laws have been upheld by the courts, and wherever the regulation measures have any reasonable relation to the evil sought to be destroyed, they have likewise been upheld. We do not understand, however, that relator contends that if the tax in this instance was placed on intoxicating liquors it would be unconstitutional. The contention is that the liquor not being intoxicating is not a proper subject for the exercise of police power; that the very language of. the law distinguishes it as nonintoxicating; and further, that because it is nonintoxicating it is harmless and noninjurious to the health, morals and safety of the people. If we concede that nonintoxicating malt liquors are harmless and their use not injurious to the health or morals, there would be great force in relator’s contention, but we do not think the facts sustain the contention. On the other hand, we think that nonintoxicating malt liquors may be of such quality as to be extremely injurious and dangerous to the health and morals of the people, and we further think that the Legislature had the right to assume that any beverage which contains “malt liquors” is injurious to health and morals and thereby subject to the police power. While the majority of these laws are leveled at intoxicating liquors, yet it does not follow that the police power is confined to this class of liquors or that the intoxicating feature is the boundary line over which the Legislature can not pass.

Alcohol is the intoxicating element in all spirituous, vinous, malt and other intoxicating liquors. Joyce on Int. Liq., sec. 17. We think it well established that under the police power the Legislature may regulate, if it so desires, the sale of all beverages which contain any degree of alcohol. It is the alcohol which makes the liquor dangerous, and it is the presence of alcohol which gives rise to the exercise of police power. If the alcohol is present in any quantity the power to regulate springs into life. Whether the liquor contains enough alcohol to warrant regulation is a question wholly within the sound" discretion of .the Legislature. It would be within the province of the court to inquire if the beverage necessarily contains alcohol or some other inherently injurious ingredient, if. it does it is a subject of police regulation. But the court has no right to usurp the legislative prerogative, and after finding that the Legislature has the power, attempt to dictate to it when and where it shall exercise -that power. Whether it has the power is for the court to say; whether it shall exercise that power is for the Legislature. This law attempts to regulate and tax the sale of nonintoxicating malt liquors. Bo liquor therefore can be affected by this law unless it is a malt liquor, and all nonintoxicating malt liquor is affected. This leads to the inquiry of what is malt liquor. Hr. Joyce, in his work on Int. Liq., sec. 12, defines it as follows:

“The common and approved usage of the term ‘malt liquor’ is an alcoholic liquor as beer, ale or porter, prepared by fermenting an infusion of malt.”

The Century Dictionary defines it as a “general term for an alcohol beverage produced merely by the fermentation of malt.” So then it is clear that all malt liquor is an alcoholic liquor, and the Legislature in this instance was dealing with a nonintoxicating alcoholic liquor. Intoxicating liquor is any liquor containing alcohol which can be drunk as a beverage in such quantity as will produce intoxication. Of such liquors as these the Legislature has provided a system of taxation and regulation by what is known as the Bobertson-Fitzhugh law, but the Legislature evidently, for some good reason, deemed it wise to deal with another class of liquors which though denominated by name, and which were in fact nonintoxicating yet containing alcohol in various proportions.

It must be borne in mind that a liquor is not intoxicating unless it will make a person drunk who drinks it, and it is extremely difficult to draw the line on a “drunk.” There are various stages such as “quarter dunk, half drunk, and dead drunk;” there are the stages of being vivacious, foxy, tipsy, and on a “high lonesome,” and it is about as difficult to determine when a young lady gets to be an old maid as it is to tell when a man has taken enough alcoholic stimulant to pass the line between a “jolly sober” and a “gentlemanly dr-unk.”

Mr. Justice Dibrell, in the case of Railway Co. v. Robinson, 140 S. W., 434, has laboriously and learnedly attempted to define the vague term “drunk,” but he practically gives up the question in despair. His discussion, in connection with this case, however, is interesting and instructive.

The Legislatures of different States • have undertaken in some instances to prescribe what percent of alcohol in a liquor will constitute it intoxicating, and it is commonly understood that ordinarily a liquor which contains less than two percent of alcohol will not produce intoxication, though there is no fixed rules in regard to the matter. Whatever the percent is, say for convenience, two percent, then an alcoholic liquor which contains one and three-fourths percent would not be intoxicating, yet can it be said that an alcoholic liquor which lacks only one-fourtli of one percent of alcohol to make it actually intoxicating is a beverage that can safely be sold promiscuously at cold drink stands and soda fountains, to unsuspecting persons who do not knowingly drink intoxicants or alcoholic beverages, and to boys and children of tender years who may thus be injured in health, or may thus innocently cultivate an appetite for stronger drinks. The Legislature could well assume that the taste and effect of such alcoholic stimulants, especially with children would be extremely injurious to the health and morals, and that it was necessary to deal with this class of drinks in some way. It is a matter of common knowledge, and of which this court will take notice, that the textbooks which the children of Texas study in the public schools teach and impress the idea that alcoholic stimulants are injurious to the health and morals, and even the temperate use of such is discouraged. The Thirtieth Legislature, in -prescribing a course of study in the public schools, among other things, required that the children should be instructed in physiology and hygiene, including the effects of alcoholic stimulants and narcotics on the human system. . Three textbooks have been selected by the text-book board which are now in use in all the public schools of Texas, which deal in no uncertain terms with the injurious and pernicious effects of alcoholic stimulants. We call attention to some of the lessons set out in the “First Book in Physiology and Hygiene,” by Krohn, it being one of the official textbooks adopted. On pages 66-68 under the title “Alcohol” we find the following:

“Alcohol is as clear and colorless as water; but as a drink it is just the opposite of water. If you have had your throat or chest rubbed with alcohol when you had a cold, you know how strong it smells. If you have seen it used in an alcohol lamp you know how quickly it flames up when it is lighted, and how soon it is all burned out. That is just what alcohol does inside the body—it burns. It burns and destroys the parts of the body. It does not quench thirst. It makes the mouth and the throat drier, and the person who drinks it more thirsty still.

“Alcohol not a food.—Is alcohol a food? No, it does not nourish the body; it does not give it more strength; it does not make it warmer. It might seem for a few moments to warm it; but the feeling would not last long, and in a few moments the body would feel colder than before. It might for a few moments make us feel brighter and more lively. Why would' it? It would be only like the whip used on a tired horse. It would excite us, but it would not help us. Afterward we should be duller and slower than before. What do we call a drink that excites but does not nourish us?

“Athletes drink no alcohol.—No young man who is being trained in athletics ever touches alcohol. His trainer would not allow him to do so; for there would be no use in helping a man to build a splendid body if the man were all the time taking something to tear it down. The athlete must have food to give him strength and quickness. He would stand no chance of winning in a contest if he should take drinks made of alcohol. If an athlete drinks alcohol— if he ‘breaks training/ as it is called—his comrades look down upon him. Why do they? Because he was so weak as to give up the thing he set out to do just for the pleasure of a taste.

“Alcohol and habit.—Most alcoholic drinks are not pleasant when first tasted. Some burn the mouth and throat. A man has to learn to like them. And what a silly thing to do—to try to like a thing that is harmful. But the young man thinks it ‘looks big’ to drink with other men. He is afraid of being laughed at, and not thought manly if he refuses. If he only knew how much more manly it would be to refuse! Not only would he save his own health; he might help his companions by' setting a good example. Most men begin by taking just a little once in a while. But very few men who once begin to drink find it easy to stop. That is the queer thing about alcohol; it starts a craving for more. Then the man will take stronger liquors and take them oftener, until he has so broken down his health that he is weak-minded as well as weak-bodied. Then he can not stop. The drunkard can not reason; he can not remember; he can not do what he makes up his mind to do; for he has whipped and abused his body, instead of feeding it, until it has broken down. Can such a man be a useful citizen?”

These strictures apply to alcoholic drinks and not alone to intoxicating liquors, and while the above language is made simple for children to understand, the truth of the deductions are too well known to deny, and if the indictment is true, it would seem clear that the Legislature has the right to deal with all alcoholic drinks under the police power of the State.

. While the law under consideration only applies to nonintoxicating malt liquors, and while the agreed statement of facts in the record shows that Hiawatha, one of the beverages which relator was selling, is a nonintoxicating malt liquor, it seems that it is not without a judicial history in this State, and as we shall presently show, it may not always be as harmless as this record would indicate. As we have heretofore shown, all “malt liquor” contains alcohol, and as this beverage therefore contains alcohol, we are not surprised at the effect it seems to have had on some persons who imbibe it too freely. The inoffensive sounding though illustrious name would not indicate a dangerous character, but we are reminded that

“Strong of arm was Hiawatha; He could shoot ten arrows upwards, Shoot them with such strength and swiftness That the tenth had left the bow string Ere the first to earth had fallen!”

And we are persuaded that this namesake has on occasion manifested a good deal of “strength,” and while its arrows might not be as effective as the other Hiawatha’s, we are not at all surprised to know that when they have struck home the recipients were at least “half shot,” if not more seriously wounded. The first time that this ak leged harmless and nondeleterious Hiawatha made its appearance in the Texas courts was in the case of Deadweyler v. The State, reported in 57 Texas Crim. Rep., 63, 121 S. W. Rep., 863. That was a ease where the appellant was convicted for selling a beverage labeled Hiawatha, which was purchased from the Houston Brewing Company, and the opinion was written by Presiding Judge Davidson, of this court, in October, 1909. The defendant was convicted for selling this beverage in violation of the local option law, and the defendant says that the liquor was not intoxicating. The opinion states that “the evidence is conflicting as to whether it was or was not intoxicating. The weight perhaps of the evidence is that it was not; but there is evidence that it was intoxicating. There is also evidence which seems to be uncontradicted that appellant bought the Hiawatha under guarantee from the Houston Brewery, that it was a nonintoxicant, containing alcoholic properties of less than two percent, and that a sufficient amount of it could not be drunk so as to produce intoxication. The State’s evidence is that the liquid bought and used was intoxicating and this is supplemented by evidence to the effect that other parties had bought liquids of similar character from appellant which produced intoxication, or could do so.” It is interesting to know that in this case an application was made in the trial court for a continuance .to procure the evidence of a chemist who had been employed to analyze the liquor under investigation and whom it was alleged would testify that such liquor, as shown by analysis contained one and one-half percent and less than two percent of alcohol in volume. Appellant also expected to prove by another witness a chemist for the Houston Brewing Company, that the liquor did not contain over two percent of alcohol in volume and hence not intoxicating. After disposing of the other alleged errors in the case the opinion states:

“It is contended that the evidence is not sufficient. The evidence for the State shows that the" liquid sold was capable of producing intoxication. This was met by appellant with the evidence to the effect that he bought Hiawatha under guaranty that it was a nonintoxicant, and so believing he sold it. There is a good deal of testimony, pro and con, as to whether or not the drink would produce intoxication; that is, the beverage that was sold by appellant. Some witnesses testified that*the liquid they bought from appellant was intoxicating, while there is considerable testimony from some other witnesses that they had used a great deal of it and what they used was not intoxicating. These matters were submitted by the court to the jury and found adversely to appellant. We are of opinion that under the circumstances this court would not be justified in reversing the judgment.”

A more recent case in which this same beverage has played a prominent part is that of Sandaloski v. State, recently decided by this court and not yet reported. This is another conviction for selling intoxicating liquors in a local option county. The facts show that appellant sold a drink called “Hiawatha.” He was the agent of the Houston Ice & Brewing Company, whom he said manufactured both beer and this drink called Hiawatha. It appears that appellant sold several casks of this liquid in a local option county, representing that it was nonintoxicating; that it was sold, mostly in local option territory, the customers usually preferring beer in wet counties. The court says: “There is a sharp conflict in the testimony as to whether Hiawatha would produce intoxication. The witnesses for the State testify that it would, while the witnesses for the defendant are equally positive that it will not when drunk in quantities that can usually be drunk.” The case was affirmed.

It would seem from the above cases that the Hiawatha referred to is the same kind of liquid as that sold by the relator, and that the court and jury were of the opinion that Hiawatha was not only not a harmless drink and one not deleterious to health, but in fact contained alcohol enough to warrant a jury in finding that the party who sold the same was guilty of violating the local option law. It would at least seem from these cases that if Hiawatha is not an intoxicating liquor, it is so nearly an intoxicant as to make it difficult to determine on which side of the line it should fall, and in either event it certainly contains alcohol enough that the Legislature was warranted in -assuming that it, and all such malt liquors were dangerous beverages to be sold promiscuously and that the indiscriminate eale thereof should be discouraged.

But, it is argued that the Legislature has not attempted to regulate the sale of these liquors; that the measure is a tax or revenue law pure and simple, and the case of Ex parte Woods, supra, in which this court held that the Act of the Thirtieth Legislature on this subject was unconstitutional is of controlling authority. While the opinion in that case does hold that the Act of the Legislature then under consideration was a tax measure and not regulatory, yet it was probably not necessary for the court to decide that point. Judge Ramsey, in that case, after reaching the conclusion that “the sole and only effect of the law, its sole and only purpose, is to levy a tax on the occupation named,” says:

“E"or do we believe, with all possible respect to counsel, that this view is important in any event, for that, if there is in fact a discrimination and the legislation is violative of the bill of rights, and in the face of the Constitution, and that under whatever guise or under whatever pretext attempted, the result would not be different.”

It will thus be seen that the court was of the opinion that the law as thus written was discriminatory, and in violation of the bill of rights, viewing it either as a police regulation or as a tax measure, and while not agreeing with the court in that opinion, yet under such construction it would not be applicable to this case. It was held in that case that the Act was unconstitutional because (1) it applied only to local option territory, and (2) because it exempted regular druggists or pharmacists who keep for sale, as a part of a regular drug stock, certain malt compounds used exclusively as a medicine and not sold as a beverage. The court expressly stated that no other questions were decided. While not conceding that a law applying alone to local option territory would render the law unconstitutional, when the object and purpose of the law as indicated by it was to prevent sales being made, yet the Act here under consideration is not subject to the criticisms there made. In fact, it is patent that the law was written to meet the objections urged by this court in that opinion, and which was rendered by a divided court. This law applies to all of the territory of the State and there are no exceptions in favor of druggists. We think, therefore, that the Woods case, supra, is not in point, but if the opinion then rendered is the law, it would authorize a law of this character as applicable to the entire State.

It is maintained that the law under consideration as passed and amended by the Thirty-First Legislature does not materially differ from the original Act passed by the Thirtieth Legislature in respect to its nature as to whether or not it is a revenue tax measure or a police regulation; that it is in fact a tax measure and the amount of tax being so large as to make it practically prohibitive it can not be upheld on this ground. It will be observed that this law now requires an applicant for a license to state the location at which he proposes to engage in the business and no person is entitled to engage in the business at more than one place under the same license, and no person can change his location without first filing with the county clerk a written statement showing such change of place of business. These conditions are not found in the original Act of 1907 and show a' legislative intent to treat this tax and the license thereunder as a means of regulating or discouraging the sale of the liquors under consideration. At least considering the present law in all its phases, in connection with the other liquor laws of this State, and the history of liquor traffic regulation and considering the well established rules of construction governing such matters, we think it clear that this law as now framed is in the nature of a police regulation. If the primary purpose of the law was not in fact as a police regulation, it is at least a blending of a police regulation and an occupation tax measure, and whatever it may be called, we fail to see how it is in any sense unconstitutional. The Constitution of this State authorizes the Legislature to levy occupation taxes on all occupations whether harmless or not, and there is no limitation upon the Legislature as to the occupations taxed or the amount levied where the tax is levied as a police regulation in the proper exercise of the police power, except that all occupation taxes must be equal and uniform upon the same class of subjects within the limits of the authority levying the tax. (Con., sec. 2, art. 8.)

Mr. Cooley, in his work on Taxation, vol. 1, 3d edition, page 9, lays down this doctrine: "Everything to which the legislative power extends may be the subject of 'taxation, whether it be person or property, or possession, franchise or privilege, or occupation or right. Hothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the Legislature in its discretion shall at any time select it for revenue purposes; and not only is the power unlimited in its reach as to subjects, but in its very nature it acknowledges no limits and may be carried even to the extent of exhaustion and destruction, thus becoming in its exercise a power to destroy.”

He further says in this connection that if the power be threatened' with abuse, security must be found in the responsibility of .the Legislature that imposes the tax; that the judiciary can afford no redress against oppressive taxation, so' long as the Legislature imposing it shall keep within the limits of legislative authority and violates no express provision of the Constitution. The same author, in referring, to occupation taxes, says: "They may be intended to discourage trades and occupations which may be useful and important when carried on by a few persons under stringent regulations, but exceedingly mischievous when thrown open to the general public and engaged in by many persons. An example is the heavy tax imposed in some States and in come localities or other States on those who engage in the manufacture or sale of intoxicating drinks. Two purposes are generally had in view in imposing such a tax: to limit the business to a few persons, in order to more efficient and perfect regulation, and also to produce a revenue. As no one will pay the tax who does not expect to be reimbursed the expense from the profits of sales it is obvious that the heavier the tax the fewer can afford to pay it, and it may be made so heavy that no one can afford to pay it, and then it becomes prohibitory.”*

In Tiedeman’s Limitations of Police Power, section 101, this eminent authority, in discussing the question of licensing and regulating certain occupations, says:

“Once having been judicially ascertained that the trade or occupation may be restrained, it is a matter of legislative discretion what kind of restraints can be imposed. The prosecution of the trade then becomes a privilege, for which as large a price can be demanded by the State as it may see fit.”

This authority also quotes with approval from the case of Leavenworth v. Booth, 15 Kan., 627, as follows: “A proper license tax is not a tax at all within the meaning of the Constitution, or even within the ordinary signification of the word ‘tax/ . . . The imposition of a license tax is in the nature of the sale of a benefit or privilege to the party who would not otherwise be entitled to the same. The imposition of an ordinary tax is in the nature of the requisition of a contribution from that which the party taxed already rightfully possesses.”

The above principles were discussed in the case of Fahey v. The State, 27 Texas Crim. App., 146, in which the constitutionality of the liquor law of 1881 was questioned.' The law was attacked on the ground that inasmuch as it levied an occupation tax on the sale of intoxicating liquors and .also provided for the issuance of a license and a system of regulation, that is, an exercise of the police power and the taxing power, it embraced more than one subject and embraced subjects not expressed in the title of the bill. Second, that the Act was unconstitutional because it required a payment of the tax in advance for the term of one year, while the tax on other occupations was permitted to be paid quarterly. Judge Hurt, writing for the court in disposing of the°first contention, says:

“We could concede, for the argument, that the' object of these Acts is to regulate the sale of these liquors, to collect revenue and divers other purposes and objects; still, unless there was more than one subject in the Act it would be valid.”

He says that clearly the subject of these Acts is the regulation of the sale of spirituous, vinous and malt liquors and the various provisions set forth in the law are related to and subsidiary to the main subject. In reference to the second contention the court held that the tax or regulation applied uniformly to all parts of the • State, and in this it did not infringe upon the constitutional provision as to uniformity.

In this connection we desire to call attention to the very able brief printed in connection with the report of the above case. This brief was prepared by Hon. W. L. Davidson, then Assistant Attorney-Gen eral, and now presiding judge of this court, and it so clearly and forcibly presents the principles of law applicable to the case under consideration that we desire to quote from it as follows:

“It may be admitted as a general proposition that the taxing power is a separate power from that of police regulation, and equally so is the right of eminent domain. They have, as a general rule, a different operation, pursue a different channel, and attain different ends. However distinct their power and authority may be, and however wide they may diverge when considered as questions of inherent sovereignty, yet they have the same origin and spring from the same source. All the authorities agree that the right of eminent domain, the taxing power, the police regulation, all have their origin in and spring from necessity. All endorse the doctrine that the above enumerated powers are the strongest evidences of State sovereignty, and lie back of all law, organic or statutory. All the authorities agree that these powers are unlimited in the Legislature unless specially curtailed by the express provisions of the Constitution. It is a proposition not to be doubted that the Legislatures have the authority inherent to exercise proper legislation with reference to eminent domain, to levy taxes and provide for the collection of same, both on property and professions, pursuits and occupations, subject only to constitutional restrictions. It is equally certain that the ‘necessity’ is to be judged of by the Legislatures, and that their action is final unless in plain, clear and unequivocal terms that action is contrary to constitutional limitations. (Tiedeman, Lim. on Police Power, pp. 371-378; id., pp. 1-4; id., pp. 461-482; also 467-471; Potter’s Dwarris on Stat. and Cons., pp. 444-467; Cooley Con. Lim., pp. 598, 673-676; Cooley on Taxation, pp. 1, 4, 384, 512.)”

In the same brief we find the following: “Is a State law levying an occupation tax, and requiring a license to be procured before pursuing that occupation, void and unconstitutional because said law invokes the taxing and police power at the same time and in the same law ?

“The constitutionality of a law is presumed; and as a conflict between the Constitution and the statute is not to be • implied, it follows ‘that the court, if possible, must give the statute such a construction as will enable it to have effect.’ (Cooley’s Con. Lim., side p. 183; Ex parte Mabry, 5 Texas Ct. App., 93; Newland v. Shafer, 29 Ill., 44.)

“As our Constitution does not limit the Legislature in levying occupation taxes, it would follow that the tax complained of is properly levied, and is not subject to criticism from this standpoint. (Texas Con., 1876, art. 8; Cooley’s Con. Lim., 598; Cooley on Tax., 384.)

“ ‘necessity’ is the common source of the taxing power as well as of police regulation. It would follow that no arbitrary rule can be laid down .that will or can make them antagonistic to each other; and it would follow that, being grounded in necessity and in the inherent power of government, they can and are often called to aid and assist each other. Then, when relegated to fundamental laws of inherent authority complete sovereignty of the Legislature and the underlying law of necessity and self-preservation, and not being abridged by the Constitution of these powers, it would follow that, having their origin in these common sources, the taxing power and police authority can not be arbitrarily separated or be made to stand out opposed to each other by judicial construction or decision.

“The position assumed by appellant in his able brief is that these two great powers are antagonistic and can not be called to the aid of each other, that is, that the Legislature can levy the tax by virtue of its taxing power, but that it can not call into requisition the police authority to enforce the collection of that tax by virtue of the same Act of the Legislature. In other words, that an Act of the Legislature that sought to enforce the collection of the tax levied by that Act, by requiring the license to be procured before following that occupation, would be void as antagonistic to article 3, section 35, of the State Constitution, and in no emergency can the Legislature blend the taxing and police power, because it would be obnoxious to said article and section of the Constitution. This idea is fundamentally wrong. (Cooley on Tax., 66; Lane Co. v. Oregon, 7 Wall., 71; State v. Parker, 32 N. Y., 426; Eyre v. Jacob, 14 Gratt., 422; Davey v. Galveston County, 45 Texas, 291; Ex parte Cooper, 3 Texas Crim. App., 489; Tx parte Mabry, 5 Texas Crim. App., 93; Willson’s Crim. Stats., see. 195; Cooley on Tax., 385; License Tax Cases, 5 Wall., 472.)”

According to the authorities above cited, especially as to all subjects coming within the police power, the Legislature has full authority to adopt such means of regulation as it desires. It may be by a system of licenses and regulation, by a tax laid upon the occupation, or by a blending of a tax, license and regulatory provisions. We, fail to see -how the primary purpose of this law could be construed to be for the purpose of raising a revenue. The tax imposed is so high that in the nature of things, considering the liquors affected, but few people, if any, could afford to pay the tax and procure a license. It would rather seem to have been the intention of the Legislature to place the tax so high that it would very materially discourage, if not prohibit, the sale of the character of liquors under consideration. Or if any persons would undertake to pay the tax and engage -in the sale it would at least limit the number of establishments and enable the authorities to keep a closer surveillance over the business to see that the law was not violated in selling intoxicating liquors, having a close resemblance to the nonintoxicating liquors licensed under this law.

Eelator in his brief has cited a great many authorities and quoted copiously therefrom to sustain the contention that it is not within the police power of the State to place burdensome regulations or a burdensome tax upon nonintoxicating malt liquors. The cases cited, in the main, state propositions of law which we endorse, but the trouble is they have no application to the question here under consideration. Counsel for relator assume throughout their brief and argument that nonintoxicating malt liquors are harmless beverages and are in no sense in themselves injurious to the health, morals or public welfare of the people. Having assumed a wrong premise the arguments and authorities urged are foreign to the real issue in this case, as we see it. We have endeavored to show that nonintoxicating malt liquor is not a harmless beverage, but is in fact one which may well be productive of much harm and injury. On account of this incorrect premise assumed by counsel for relator, it would be an unnecessary consumption of time to go into a detailed discussion of the various authorities cited, but we will make a hurried review of a few of the cases presented which will show the general trend of all of them.

The first case cited by relator is Hirshfield v. City of Dallas, 15 S. W. Rep., 124, which involved the constitutionality of an ordinance of the city of Dallas imposing a license tax of five hundred dollars on railway ticket brokers. The ordinance levying this. tax was declared to be unconstitutional, not because of the lack of authority to tax and regulate the railway ticket brokerage business, but because the business was not inherently harmful and injurious and a tax could not be placed upon it which was prohibitive, as the court was of the opinion this tax was. In the course of the opinion the court says: “Some occupations are so injurious that a tax prohibitory entirely would be justifiable. Others may or may not be injurious, owing to the manner in which they are carried on or pursued, and abuses which may flow from them. Of this latter class is, we take it, the business of the railway ticket broker or scalper.”

The court says that there was testimony adduced to the effect that the tax was more than enough to regulate the business, and that the ticket broker business did not require near so much regulation as the saloon business, and it was further shown by the proof that the tax was prohibitive. Our contention is, and it is borne out by the facts, that nonintoxicating alcoholic liquors, the kind of liquors covered by the law under consideration, falls within the first class mentioned, by the court in the above case and therefore the case is not authority against the constitutionality of this law. On the other hand it sustains it.

The next case cited is Owens v. The State, 53 Texas Crim. Rep., 105, 112 S. W. Rep., 1075, which involved the Act of the Twenty-Ninth Legislature imposing an occupation tax of five thousand dollars on persons engaged in the business of purchasing assignments of unearned wages. The court held the law unconstitutional because it was discriminatory, was in restraint of trade and the tax levied was not on a business within itself of such a nature as to authorize a prohibitive tax to be levied against it. This case lias no application to the taxing or regulation of the sale of alcoholic liquors which are universally recognized as a proper subject of police regulation, which may be prohibitive. ■

We have already reviewed the case of Ex parte Woods, 52 Texas Crim. Rep., 575, 108 S. W. Rep., 1171, cited by relator.

Relator quotes extensively from the leading case of Mugler v. Kansas, 123 U. S., 623, but we fail to find anything in that decision which tends to show the unconstitutionality of this law.

Ritchie v. The People, 40 N. E., 454, quoted by relator, was a case involving the constitutionality of the law declaring that .no female should be employed in any factory or workshop more than eight hours in any day.

The case of State v. Smith, 84 Pac., 851, was a case involving the validity of an Act forbidding one to engage in the plumbing business except under certain restraints.

The case of In re Jacobs, 98 N. Y., 98, was a case involving the validity of an Act prohibiting the manufacture of cigars.

The case of People v. Marx, 99 N. Y., 377, was one involving the constitutionality of a law prohibiting the manufacturing out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, any article designed to take the place of butter or cheese, etc.

The case of People v. Steel, 83 N. E., 236, was one involving the validity of an ordinance in regard to the sale of theatre tickets, under certain conditions.

The case of State v. Ashbrook, 55 S. W., 627, involved the constitutionality of an Act making it unlawful for persons to conduct a department store without taking out a special license and paying the special tax.

The case of Wyeth v. Thomas, 83 N. E., 925, involved the constitutionality of' a law regulating the undertaker business. Another case cited is one in regard to the plumbing business. Another case cited related to the business of lending money on household or kitchen furniture and wearing apparel. Another involved the law in regard to the regulation of sleeping car berths. Another involved the law regulating the construction of tenement houses.

The case, however, which relator stresses the most on is People v. Warden, 51 N. E., 1006, which involved the constitutionality of the ticket scalper law of New York. The decision of the majority of the court was written by Judge Alton B. Parker, and the law was held to be unconstitutional because the subject was not within the police power of the State. While the business of dealing in railroad tickets is not inherently injurious and therefore the same rules of law do not apply as apply to the sale of alcoholic beverages, yet it is proper to note that the Texas courts have not followed the opinion in the Yew York case by Judge Parker, even in its application to ticket brokers.

In the case of Jannin v. The State, 51 S. W. Rep., 1126, which involved the validity of the Act of 1893, making it a penal offense for railroad tickets to he sold under certain conditions, this court expressly declined to follow the opinion of Judge Parker .in the case referred to by relator. This court in the Jannin case says:

“As stated above, the opinion of the Yew York Court of Appeals on this subject runs counter to all of the authorities that have come under our observation. That court was divided on the subject, and in our opinion the very able discussion by Judge Parker is more than answered by the dissenting opinions of Justices Bartlett and Martin.” (See also Ex parte Hughes, 50 Texas Crim. Rep., 614, 100 S. W., 160.)

The Supreme Court of this State in the cases of Lytle v. G., H. & S. A. Ry. Co., 100 Texas, 292, 99 S. W. Rep., 396, and Ex parte Testard, 101 Texas, 250, expressly held the opinion by Judge Parker not to be the law, and says that ease stands alone, and is opposed to the great weight of authority.

We have found no authority which holds that alcoholic beverages, although not containing enough alcohol to produce intoxication, are harmless and not injurious, and none has been cited by counsel for relator. We find no authority placing the traffic in this class of beverages in the same category with the various, admittedly harmless, and many of them useful and necessary occupations of the kind which it was held by the various decisions referred to by relator were not of such a nature as to authorize a burdensome or prohibitive tax or regulation. On the other hand, the great weight of authority and reasoning is in favor of the proposition that this class of liquors, as far as the inherent power of the State to deal with them is concerned, is placed upon identically the same plane with all those alcoholic liquors which contain alcohol in such proportion as to produce intoxication. This being so, we think that these beverages are a proper subject of police regulation and that the Legislature may impose any tax which it desires or any regulation in reference to the sale of the same which bears any reasonable relation to the control of the traffic. We are of opinion that this law is not subject to the first criticism urged by relator against its constitutionality.

We shall now consider relator’s second objection to this law, that is, that the Act has the effect to make the tax on the pursuit of the business named in it, unequal and not uniform, persons in those parts of the State where the Robertson-Fitzhugh law is in effect, having to pay one amount of tax for the sale of nonintoxicating malt liquors and those in the other parts of the State having to pay a different tax. It is urged that what is known as the RobertsonFitzhugh law, passed by the Thirty-First Legislature, regulating the sale of intoxicating liquors, ■ is a complete law covering the entire subject, and includes within its provisions the taxing, licensing and regulation of all malt liquors whether intoxicating or not; that under the Bobertson-Fitzhugh law a retail liquor dealer may pay $375 as a tax to sell spirituous, vinous and malt liquors, or pay $62.50 as a tax and obtain a license to sell malt liquors, and in either event such a licensee can sell nonintoxicating malt liquors without the payment of any additional tax, while if a person is not licensed under the Bobertson-Fitzhugh law and undertakes to sell nonintoxicating malt liquors alone, he is subjected to pay a tax of $2,000; and relator argues with a good deal of plausibility that the Bobertson-Fitzhugh law, chapter 17, Acts of the Thirty-First Legislature, repealed chapter 19 of the Acts of the same Legislature, which undertakes to impose the tax under consideration, and further that the law is highly discriminatory in favor of those persons licensed under the Bobertson-Fitzhugh law and is an unreasonable and unnecessary classification, even if the Legislature had the power to impose the tax at all. In the first place, we are constrained to think that counsel for relator have misconstrued the purposes and effect of the Bobertson-Fitzhugh law. The caption of the bill shows that it is an Act to regulate the sale of certain liquors capable of producing intoxication, and the caption does not refer to nonintoxicating liquors. Section 1 of this Act imposes a tax of $375 on wholesale dealers in spirituous, vinous or malt liquors, the same amount on retail dealers in such liquors and a tax of $62.50 on dealers in malt liquors exclusively; however, the statute expressly states that it licenses and has reference in each instance to such liquors only as are capable of producing intoxication. This is made clearer still by sections 2 and 3 of the Act. Section 2 defines a retail liquor dealer to be a person who sells spirituous, vinous and malt liquors and medicated bitters capable of producing intoxication. Section 3 is as follows: “A retail malt dealer is a person or firm permitted by law, being licensed under the provisions of this Act, to sell malt liquors capable of producing intoxication, exclusively in quantities of one gallon or less, which may be drunk on the premises.”

It will thus be seen from the caption of the Act and from its express provisions that the law in fact licenses and applies to those liquors which are capable of producing intoxication, whether they are spirituous, vinous or malt liquors. The only provisions of the law which gives color to the contention made by relator that the Bobertson-Fitzhugh law covers nonintoxicating malt liquors is section 34 of the law which defines intoxicating liquor to mean, among other things, “fermented” liquor. As it is conceded that malt liquor is produced by fermentation, it is urged with some force that under section 34 this law was intended to cover all malt liquors whether intoxicating or not. However, we do not think the contention of relator can be sustained. It is proper in construing an Act of the Legislature to give every part of the law force and effect and not place such a construction upon it as would make one provision of the law directly conflict with another, and if relator’s contention is correct, section 34 of the law is in direct conflict with sections 1, 3 and 3. It is clear from sections 1, 3 and 3 that the Legislature was only dealing with and licensing the sale of intoxicating liquors.

If relator’s contention is correct and the Robertson-Fitzhugh law covers the sale of nonintoxicating malt liquors, as well as intoxicating malt liquors, no person could obtain license to sell nonintoxicating malt liquors at all in any county where local option has been adopted, because no licenses under that law can be issued for such territory, and all persons selling these liquors in nonlocal option territory without having obtained a license as provided for in the Robertson-Fitzhugh law would be subject to prosecution. In other words, relator’s contention makes him guilty of pursuing a taxable occupation without having obtained the required license, as he admits that he has none of any kind.

However, if the relator in this case had been prosecuted under the Robertson-Fitzhugh law for pursuing without license the occupation of selling this admittedly malt liquor, but one which it is admitted in this case was not intoxicating, could a conviction be -sustained? Would he not point to section 3 of the Robertson-Fitzhugh law to show that the license required for the sale of malt liquors applies only to such malt liquors as are capable of producing intoxication. W'e therefore think that the contention of relator can not be sustained that the business taxed by the law under investigation is cowered by the Robertson-Fitzhugh law, when it is agreed the statement of facts that it is not an intoxicating liquor, or that the person who holds a license under the Robertson-Fitzhugh law for which he pays $63.50 is given a distinct advantage over the person who sells nonintoxicating malt liquors and is forced to pay a $3,000 tax.

It is generally conceded that the Legislature has a right to make any reasonable classification as _ to the tax imposed and the license conditions required, as to the kinds of liquor sold, the places where sold, and the persons engaged in the sale thereof. The tax may be levied upon the sales, although by that method one dealer pays more tax than another. This was so held in this State under the old register or bell-punch law. (Albrecht v. State, 8 Texas Crim. App., 216.)

A law taxing all of a class alike is valid though it taxes those of another class at a different rate. (Territory v. Connell, 3 Ariz., 339.)

A tax of one amount to sell generally and another amount to sell malt liquors has been held to be valid. (Timm v. Harrison, 109 Ill., 593.)

A tax of one amount on those dealing in distilled liquors on land, and another amount on persons following like occupations on steamboats, has been upheld. (Kaliski v. Grady, 25 La. Ann., 576.)

One tax may be levied upon breweries and distillers and another on saloons. (Adler v. Whitbeck, 44 Ohio, 539.)

A statute imposing a tax on wholesalers but exempting manufacturers was held to be valid. (Senior v. Rattaman, 44 Ohio, 661.)

The fact that a statute enables one county to levy a tax in a certain amount and another county on another amount does not render the statute invalid, as was held in this State in the case of Fahey v. The State, 27 Texas Crim. App., 146.

We could cite a great many other instances where various classifications along this line have been upheld. In the Eobertson-Fitzhugh law itself we find no less than five distinct classifications as to the sale of various kinds of liquors. First, wholesale dealers are placed in a class by themselves and pay a tax of $375, but have no license burdens. Second, dealers in spirituous and vinous liquors are in a distinct class and pay $375 tax and are subjected to strict regulation provisions. Third, retail malt dealers are in a distinct class pay $62.50 tax and are subjected to strict regulation. Fourth, druggists who sell on prescription are in a distinct class and must pay a tax of $375, but are not required to comply with the regulation conditions imposed upon retail liquor dealers. Fifth, wine growers who 'sell wine of their own production are not required to pay any tax at all, and are only governed by slight regulation provisions. This law also has distinct classifications as to the persons engaged in the business. Any person, or corporation, may obtain a license to sell at wholesale, but no person, except a male resident of Texas, more than twenty-one years of age, can obtain a license to sell at retail, and there are other provisions which are a further limitation upon the issuance of retail liquor dealers’ licenses. It would be useless to go into detail as to 'all of the various liquor laws of this State and the classifications which are made, some applying to the whole State, some to local option territory only, and some to wet territory only. These ánd similar classifications have almost universally been sustained. See Joyce on Intoxicating Liquors, sections 176, 177 and 178; also Woollen & Thornton on Intoxicating Liquors, sections 133, 134 and 135.

While the tax imposed in this instance on the occupation of selling nonintoxicating malt liquor is a great deal larger than that imposed on retail malt dealers, licensed under the Eobertson-Fitzhugh law, yet it must be borne in mind that there is a vast difference in the other burdens thrown around the two classes of dealers. As to dealers in nonintoxicating malt liquors, there are practically no provisions of law placing any burden, except the sole one of paying the tax and securing the license, hut in the case of a retail malt dealer in intoxicating liquors the licensee is required to give a large bond containing very strict provisions and conditions. He is prohibited from selling to various classes or persons and from selling at certain specified times. His license and the money paid are subject to be forfeited at any time if he violates the provisions of the law, which are ex- - tremely strict, and when his license has been forfeited he is outlawed as a liquor dealer, not only for himself, but as a bartender for any other person for five years. There is another feature, which relator seriously insists that can not be taken into consideration in making this classification, which, we think, considering the question in its broadest view, may be of considerable importance. It is that in parts of the State where local option has been adopted the unlimited and unhampered sale of nonintoxicating malt liquors, some of them resembling intoxicating liquors very much in appearance, and some of them containing alcohol in such proportion as to verge on the line of intoxicants, offers • such a promising field to the unlawful sale of intoxicants, and entails such an expense and annoyance on the part of the officials to detect and punish such violators, in local option territory. We think this could be taken into consideration by the Legislature in passing this law,- which would have the effect to at least very materially discourage the sale of all such beverages. It is no doubt true as urged by relator, and as stated by the authorities quoted by him, that the Legislature would not have the authority to impose a prohibitive tax or unreasonable burdensome regulations upon a business which is harmless in itself and not inherently dangerous simply because some dishonest persons would pursue the business in such a way as to furnish a cloak for violations of the law. But as we have shown heretofore, nonintoxicating malt liquors are not harmless within themselves, but on account of the alcoholic element in them they are inherently injurious and harmful, and the Legislature, this being so, would undoubtedly have the authority to pass stringent laws leveled at the . regulation of the sale of these liquors alone, or as an aid to the regulation and prohibition of the sale of kindred liquors when it becomes necessary, to prevent fraud and the violation of the law to do so. For these reasons we think that the Legislature had the authority to make this classification, not only for the purpose of discouraging or regulating the sale of these nonintoxicating liquors, on account of the inherent nature of the liquors themselves, but also on account of the fact that such a tax and classification would tend to materially assist in the enforcement of the law in those counties of the State where the local option law has been adopted.

As we have already shown, the Robertson-Fitzliugh law does not cover the same class of liquors as that covered by the Act under consideration under the facts in this case, and does not constitute class legislation as between persons licensed under the RobertsonFitzhugh law and under this one. Neither do we think that the Robertson-Fitzhugh law is in conflict with this enactment or that it repealed it.

It will be noticed that the law placing a tax on nonintoxicating malt liquors was passed at the regular session of the Thirty-First Legislature. The Act known as the Robertson-Fitzhugh law was passed at the first called session of the Thirty-First Legislature. The law passed at the regular session of this Legislature placing a tax on nonintoxicating malt liquors was amended at the second called session of the same Legislature, as shown by chapter 9, page 397, of the session laws. So that we find the same Legislature first passing the law under consideration, then passing the Robertson-Fitzhugh law, and afterwards amending the former law. This certainly shows that the Legislature did not intend in passing the Robertson-Fitzhugh law to repeal the nonintoxicating malt liquor tax law which it had passed at the regular session of the Legislature.

The rule that statutes in pari materia should he construed together applies with peculiar force to statutes passed at the same session of the Legislature. It is to be presumed that such Acts are imbued with the same spirit and actuated by the same policy; and practically all authorities agree that they should be construed together as if parts of the same enactment. The rule is that such statutes should be held to be harmonious and force and effect given to each. In the case of Southern Pac. Ry. Co. v. Sorey (not yet reported), our Supreme Court discusses this question fully and ably, and holds it the duty of the courts to so construe the Acts as to permit both to stand when it can be done without doing violence to the legislative intention.

It is also well established that where one statute deals with a subject in comprehensive terms and another statute deals with a portion of the same subject in a more definite way, the two should be read together, if possible with a view to giving effect to a consistent legislative policy. However, if there is any necessary conflict between two such laws the special will prevail over the general statute.

“Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one, and when the general Act is later, the special will be construed as remaining an exception to its terms, unless it i% repealed in express words or by implication.” Cyc., 36, 1161. Rogers v. United States, 185 U. S., 83; Rosencrans v. U. S., 165 U. S., 257; Lazonby v. Smithey, 131 S. W., 708.

In view of the principles above announced, it seems clear that even if relator’s contention is correct that the Robertson-Fitzhugrli O law standing alone would cover the sale of nonintoxicating malt liquors, yet in view of the fact that it is a comprehensive general law dealing with the subject in various phases, it would not prevail over a special law passed by the same Legislature dealing particularly with one branch only of the subject. There is no express repeal of this law in the Robertson-Fitzhugh law, and as is well known repeals by implication are not favored.

Conceding, for the sake of argument, that the tax imposed in this instance is prohibitive, and viewing it from the standpoint of a tax measure or as a police regulation, we fail to see wherein it would be unconstitutional.

A Legislature of a State undoubtedly has the right to absolutely prohibit the sale of or place a prohibitive tax upon the sale of any articles which in themselves are harmful or which may be injurious to the health, morals or general welfare of the people, unless there is some constitutional inhibition against the same. There is no constitutional inhibition, so far as we are aware, in this State that would prohibit the Legislature from passing a law which would have the effect of prohibiting the sale of nonintoxicating malt liquors within the confines of this State.

It is urged by some that section 20, article 16, of the State Constitution, is a limitation upon the authority of the Legislature to prohibit the sale of intoxicating liquors, but whether or not that constitutional provision is a limitation upon the Legislature in this regard, it can have no application to nonintoxicating alcoholic liquors. The constitutional provision refers in express terms to intoxicating liquors. It is well to remember what this court so well said on this subject in the case of Albrecht v. State, 8 Texas Crim. App., 216, that “courts are not authorized to hold a statute unconstitutional merely because, in their opinion, it may be violative of public policy or contrary to what they may esteem the general spirit of the Constitution or the genius of our political institutions. When they conclude that an Act of the Legislature is void by reason of its unconstitutionality, they must be able to point with certainty to the exact provision of organic law violated by the enactment.”

In conclusion, we do not think this law is violative of any constitutional safeguard of this State, and viewing the matter either as a tax measure or as a police regulation, or both, we do not think that it is unconstitutional. As before suggested, this is the second time the Legislature has passed a law in regard to the sale of nonin’toxicating malt liquors. After the first law was declared unconstitutional by this court the Legislature must have felt that there was an urgent need of such legislation to have passed a law on the same subject again, knowing that it would have to run the gauntlet of searching judicial scrutiny.

The law as now framed applies to all of the territory of the State and applies alike to all persons dealing in this class of liquors under the conditions prescribed by law. There being no constitutional inhibition against the passage of such a law, and the Legislature being the sole judges of whether or not the necessity exists for passing it, we are clearly of opinion that the law should be upheld and that the relator should be remanded.

Accordingly it is held that the law in question is not violative of any provision of the State Constitution, and is but an exercise of the police power inherent in sovereignty, and relator is remanded.