Appellant was tried and convicted on an indictment charging him with pursuing the business or occupation of selling intoxicating liquors in local option territory in violation of law and his punishment assessed at three years in the State penitentiary.
There was enacted by the Thirty-first Legislature an Act making it a felony to pursue the occupation of selling intoxicating liquors in local option territory. See p. 284, Laws of the Thirty-first Legislature. This Act is as follows: "Section 1. If any person shall engage in or pursue the occupation or business of selling intoxicating liquors except as permitted by law, in any county, justice precinct, city, town or subdivision of a county in which the sale of intoxicating liquor has
been or shall hereafter be prohibited under the laws of this State, he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.
"Sec. 2. In prosecutions under this Act, where it is proven that there is posted up at the place where such intoxicating liquor is being sold, United States internal revenue liquor or malt license to anyone, it shall be prima facie proof that the person to whom such license is issued, is engaged in and is pursuing the business and occupation of selling intoxicating liquors within the meaning of this Act.
"Sec. 3. In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of this Act, it shall be necessary for the State to prove in all prosecutions hereunder that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment.
"Sec. 4. The inadequacy of the laws of this State to prohibit the unlawful sale of intoxicating liquors in the counties, justice precincts, cities, towns and other subdivisions of this State where the sale of intoxicating liquor has been prohibited by law, creates an emergency and an imperative public necessity, demanding the suspension of the constitutional rule requiring bills to be read on three several days, and the rule is so suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted." On the trial of the case in the court below appellant made a motion to quash and dismiss the indictment upon the ground that the Legislature had no power to change the penalty for the alleged violation of the local option law after the people of a county, subdivision of a county, precinct, etc., have adopted said law; and that the Legislature had no power to create new offenses and greater penalties than those in force when said law was adopted; and that the District Court of McLennan County was without jurisdiction of said offense because of the above facts. The indictment alleged that the appellant engaged in the occupation of selling intoxicating liquors in justice precinct No. 5 of the county of McLennan, and that this business was unlawfully carried on by the appellant after the qualified voters had adopted local option in said precinct.
We are confronted here with the question, whether the offense charged in this indictment is an amendment to the law with regard to sales, or whether said Act creates a new, separate and distinct offense? And whether the Legislature had power to legislate, create and define new offenses other than those in force when local option was adopted, after the adoption of local option? At the threshold of the consideration of this case we are confronted with this proposition: After the adoption of local option in any given territory, is all legislative power withdrawn and is the Legislature prohibited from passing any additional legislation, defining new offenses and prescribing new penalties for these offenses? Commencing with the Dawson case, 25 Texas Crim. App.,
670, through an unbroken line of decisions down to and including the case of Lewis v. State, this day decided, it has been held that any Act of the Legislature amending the penalty attached to the sale of intoxicating liquors within local option territory, will not apply to territory that has adopted local option previous to that Act of the Legislature. However, in none of these cases is the contention made or is it announced that after the people have adopted local option, the Legislature is denied the right to pass all needful legislation to make effective the law that has been adopted by the people; and when the people adopt local option they not only have a right to make the demand upon the Legislature, but the obligation is binding upon the Legislature under the Constitution of the State to see that all necessary legislation is enacted to make successfully effective the enforcement of the law in the prohibited territory. Section 20 of article 16 of the Constitution directs the Legislature to pass laws whereby the people from time to time may determine whether the sale of intoxicating liquor shall be prohibited within the prescribed limits. Under this constitutional provision, unless there are some restrictions growing out of the local option law, as adopted by the people, which may be construed as a part of the law itself, the power of the Legislature to enact all suitable and necessary laws for the enforcement of the will of the people on the subject of local option, is not in the least interfered with or limited; nor does it require or authorize the Legislature to submit to the voters the law which may thereafter be enacted to enforce prohibition. The same would be within the power of the Legislature to enact and it would become immaterial that the Act was not the law at the time local option was adopted. The first Act of the Legislature passed under the Constitution was in 1876, and that Act, which has been amended frequently since, provided for a punishment for the sale of intoxicating liquors in prohibition territory. That was the only offense defined by the Legislature. A penalty was prescribed by that law making it a finable offense only. In 1887 that law was amended, defining sales and adding a penalty therefor with the additional penalty of imprisonment in the county jail. This has remained the law ever since until the Act of the Thirty-first Legislature. At the time of the adoption of local option in precinct 5, McLennan County, the Legislature had designated no new offenses within local option territory. If this law, passed by the Thirty-first Legislature, can be construed as an amendment to the law defining and punishing a sale of intoxicating liquors, then we think that it would have to pass out and could not be enforced in territory that had already adopted local option; but if it is a separate and distinct offense, we think that the Legislature would have the right to define such an offense, prescribe the penalty for the same, and that said offense could be enforced in territory where local option prevailed at the time of the passage of such a law. The Legislature could have enacted a law simply submitting to the people the question of whether they would have local option
or not, and subsequently have enacted a law and defining offenses in order to carry the result of the vote of the people into effect. See Ex parte Dupree, 101 Tex. 150, 105 S.W. Rep., 493. And if the only crime that had been defined by the Legislature at the time that matter was submitted to the people, was simply a sale with the penalty attached to it, and the people voted on the law with that offense defined, this would not take away from the Legislature the right to define new offenses within the prohibited territory. All legislative power is vested in the Legislature and can not be exercised by any other body, except as provided by the Constitution. We, therefore, hold that the power to legislate for the efficient enforcement of local option laws is not taken away from the Legislature after the adoption of local option, but only for those offenses that are defined and punishment attached which were in existence at the time the people adopted local option; and that if new offenses grow out of the violation of this law that can not be covered by the laws already in existence, the duty and obligation rests upon the Legislature to see that efficient laws are passed to meet each new emergency. If an element should invade local option territory opposed to the enforcement of local option laws and should throw its force against the will of the people and by its craft and cunning devise schemes and means to defeat the purpose of the law and invent a method whereby, through the forms of law, they should evade the crime that had been defined by the Legislature, it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses and prescribing penalties for the new conditions that may arise because the same was not an offense at the time that local option was adopted. As said by this court in Ezzell v. State, 29 Texas Crim. App., 521: "The Legislature is not only empowered to pass such laws, but it is obligatory upon said body to pass same and make them effective. It is not a question of delegated power, but is a command to that body to enact laws for the purpose and object stated in said provision of the Constitution (that is section 20, article 16). The authority to create the law carries with it the power to provide adequate penalties to punish violations thereof when the laws have been put into operation." The Ezzell case was where the appellant was tried and convicted for violating the local option law. At the time the people of his county adopted local option, the Legislature had not provided that if a man was indicted and the indictment pending at the time of the repeal of the law by the people, that he could still be punished. This law was subsequently passed in 1887, and he attempted in the court below to invoke the provisions of section 20, article 16, and contended that the enactment of that amendment by the Legislature after the adoption of local option by the people would not apply to his case. This doctrine was held unsound by this court in the above opinion.
Now, is carrying on a business a separate and distinct offense from a sale? Volume I, Words and Phrases Judicially Defined, says: The
word "business" is defined by Webster as that which occupies the time, attention, or labor of men for the purpose of profit or improvement. Business "is that which busies or occupies the time, attention or labor of one as his principal concern, whether for a longer or shorter time; employment; occupation; any particular occupation or employment; mercantile transactions in general; concern; right or occasion of making one's self busy; affairs; transaction." A holding of one's self out to do a particular thing. In fact, it is not debatable that business is not the same thing as a sale. While business carries with it the elements of barter and trade, a person can sell a thing without being in the business generally of doing the thing regularly. That the power is in the Legislature to define new offenses after the people have adopted local option and make them applicable to that territory, we refer to what is commonly known as the "Blind Tiger" statute, brought forward in the Penal Code as article 406, which article is as follows: "If any person shall keep or run, or shall be in any manner interested in keeping or running a blind tiger in any county, justice precinct, city or town in which the sale of intoxicating liquor has been prohibited under the laws of this State, he shall be punished by confinement in the county jail not less than two nor more than twelve months, and by fines of not less than one hundred nor more than five hundred dollars. Each and every day such blind tiger is run or kept shall be a separate offense. A "blind tiger," within the meaning of this article, is any place in which intoxicating liquors are sold by any device whereby the party selling or delivering the same is concealed from the person buying or to whom the same is delivered. Upon complaint being filed with any justice of the peace, describing the place where any "blind tiger" is kept or run, such justice shall issue his warrant directed and commanding the sheriff or any constable of his county to search such place, and if the law is being violated to arrest the person so violating it; and it shall be the duty of the officer to whom such warrant is delivered to search the place described in the warrant, and to arrest and bring before the justice who issued the writ all persons found by him therein; and if admission into said place is refused, the officer executing said warrant is hereby authorized to force open the same. In prosecutions under this article, where it is proven that there is posted up at the place where such blind tiger is kept or run, United States internal revenue liquor or malt license, to anyone it shall be prima facie proof that the person to whom such license is issued is keeping and running such blind tiger." This article prescribes a different penalty to that for the sale of intoxicating liquor. It was passed at the same session of the Legislature that increased the penalty for the sale of intoxicating liquor. The constitutionality of this Act has never been assailed. The first case of which there is any record is the case of Segars v. State, 35 Tex.Crim. Rep., and the constitutionality of the Act was not assailed in the trial of that case. Commencing with the Floeck case, 34 Tex. Crim. 314,
down to and including the Schwulst case, 52 Tex. Crim. 426, when for the first time the constitutionality of this Act was assailed but was disposed of very summarily by this court, Presiding Judge Davidson saying: "We think the statute defining and prohibiting the sale of liquor by means of a blind tiger is not violative of any constitutional provision, and it is within the power of the Legislature to prohibit sales of intoxicants in this manner, and prescribe a higher punishment for this character of sale than is provided against other characters of sale." Here is a separate and distinct offense defined by the Act of the Legislature and the fact that the constitutionality of this Act was questioned but once and the summary manner in which it is disposed of by the court, clearly establishes that it was always recognized that the power was in the Legislature to create new offenses and define penalties in territory that had already adopted local option. It is no answer to this proposition to say that this court and the profession overlooked the importance of the question in this case and overlooked the line of decisions commencing with the Dawson case, supra, which stood out so prominently in the judicial history of this court. The courts have not stopped here.
The Thirtieth Legislature passed an Act amending the law with respect to disorderly houses and made a person who sold intoxicating liquors without license, the keeper of a disorderly house. A man by the name of Joliff was indicted and convicted for the violation of this law and appealed the same to this court and the constitutionality of said law was assailed on the ground that it was in conflict with the constitutional provision on prohibition and could not be made to apply to a territory that already had local option. This court held adversely to this contention and speaking through Judge Ramsey, said: "If, however, the State contends this court should assimilate the Act in question to a law by its terms limited to local option territory, then they insist that such Act dealing, as it does, with the sale of intoxicating liquors, and being germane to the main subject and considered by the Legislature as a necessary auxiliary to the enforcement of the will of the people, as expressed by the adoption of local option, the same should be held by every test as a valid law. We are inclined to believe that both of these contentions of the State are correct." See Joliff v. State,53 Tex. Crim. 61. So both by reason and authority the contention here considered must be held adversely to appellant. In the case of Ex parte Dupree, 101 Tex. 150, 105 S.W. Rep., 493, the Supreme Court, in passing upon the search and seizure law, which was another law auxiliary to the enforcement of local option, and in which the contention was made that it could not apply to Brown County, because Brown County was under the local option law at the time of the passage of the Act, says: "The Constitution does not require the Legislature to submit to the vote of the people the law which is necessary to enforce prohibition, and it has not done so. That is a proper subject for legislative action." It might be said that no
authority can be found that has ever held that the power is not in the Legislature to pass all needful legislation to enforce prohibition and that it is not essential to the validity of such laws to submit them to a vote of the people. In the case of Dupree v. State, 102 Tex. 455, 119 S.W. Rep., 301, our Supreme Court, speaking through Justice Williams, said: "The proposition that only sales may be prohibited has sometimes been thought to imply the further one that the prohibition can only be enforced by denouncing and punishing as an offense the completed sale. This restricts the power granted within too narrow limits." Again: "The purpose of the prohibition is to prevent the thing prohibited, and this provision of the Constitution prescribes no scheme of legislation by which that is to be done, but leaves the choice of the methods to the lawmaking power. There is nothing whatever in the provision which, in our opinion, should be construed as denying the power to prevent sales which are prohibited by any legitimate remedies appropriate to that end. Prevention of crime is one of the objects to which the most anxious thoughts and the most constant efforts of thoughtful legislators are directed, and the dealing with the steps preparatory to commission is a favorite method. Our Codes are full of instances of this, too numerous and too familiar to need citation."
We, therefore, hold that the Act of the Thirty-first Legislature making it a penitentiary offense to engage in the business or occupation of selling intoxicating liquors in local option territory is a valid law; that the same applies to territory that had previous to the enacting of said law adopted local option, and that the adoption of local option laws by the people does not withdraw that territory from legislative control to pass all needful legislation to make the local option laws effective, and to see that the will of the people is carried out. We, therefore, hold that the court below did not err in holding that the law was applicable in precinct No. 5, of McLennan County, which had previously adopted the local option law. There is still another view to take of this matter. It will be observed that the language of section 1 of the Act provides that "if any person shall engage in or pursue the occupation or business of selling intoxicating liquors except as permitted by law, in any county, justice precinct, city, town or subdivision of a county in which the sale of intoxicating liquor has been or shallhereafter be prohibited under the laws of this State." Article 402 as amended by the Act of the Thirty-first Legislature does not use the language as above underscored, that article making it a penitentiary offense to sell intoxicating liquors. An inspection of the Act clearly shows that the Legislature intended that it should be a violation of law to carry on the business in a territory not only that hereafter might adopt local option, but also in the territory that already had local option; and this language in the statute differentiates this case from the case of Lewis v. State, this day decided. One of the reasons stated by this court for holding that the increased penalty for the sale of intoxicating liquors could not apply to a territory that had
previously adopted local option, is that "when the Legislature attempts to amend or revise a statute which has heretofore received a judicial construction, it is presumed that the Legislature intended the same construction should continue to be applied to that statute, and in the interpretation of reenacted statutes the court will follow the construction which they received when previously in force, and the Legislature will be presumed to know the effect which such statutes originally had and by the reenactment to intend that they should again have the same effect." Evidently, it was intended by the Legislature in passing the Act in question to use language that would show that the express intention of the Legislature was to make this statute operative in territory that had heretofore adopted local option; and that in the enactment of this statute the Legislature had in mind the construction that had been placed upon article 402 by this court; and in the enactment of this statute it used language wholly dissimilar from the language used in article 402, showing evidently that the Legislature intended to make this a separate and distinct offense from an ordinary sale, and to expressly make it operative in a local option territory that had previously adopted local option, and to leave the same free from cavil or speculation.
2. It is contended that this law was repealed by the Act of the Thirty-first Legislature amending article 402, this last Act being passed at a date subsequent to the passage of the law in question. Article 402, as amended by the Thirty-first Legislature, makes it a penitentiary offense to sell whisky in local option territory. We hold that the carrying on of the business or pursuing the occupation of selling whisky is a different offense from the sale of whisky, and that the subsequent Act of the Legislature punishing sales does not repeal this Act. The law does not favor repeals by implication. As stated by our Supreme Court in the case of Cain v. State,20 Tex. 355: "The rule is that in the construction of Acts of the same session, the whole must be taken and construed as one Act and to make a later provision repeal a former there must be an express repeal or an irreconcilable repugnancy between them." See Joliff v. State, 53 Tex.Crim. Rep..
3. The indictment alleges, after the formal part, "that on or about the 31st day of August, in the year of our Lord nineteen hundred and nine, and before the presentment thereof, with force and arms in the county and State aforesaid, W.I. Fitch, in Justice Precinct No. 5, in the county of McLennan, and State of Texas, without being permitted by law, did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, after the qualified voters of said justice precinct had determined, at an election held in accordance with the laws of said State, that the sale of intoxicating liquor should be prohibited in said justice precinct, and the Commissioners Court of said county had passed an order to that effect, which order had been duly published in accordance with law, against the peace and dignity of the State." Appellant made a motion to quash
this indictment on the ground that same is too vague and indefinite, and does not charge this defendant with having sold intoxicating liquor in a local option territory, and does not put defendant upon notice of the time when, place where, or persons to whom he is charged to have made sales of intoxicating liquors. It will be noted that section 1 says that if any person shall engage in or pursue the occupation or business of selling intoxicating liquors he shall be punished, etc. Section 2 of the Act provides that if revenue license is posted up in the house where the intoxicating liquors are sold, it shall be prima facie evidence that the person to whom the license is issued is engaged in and pursuing the business and occupation of selling intoxicating liquors within the meaning of this Act. Section 3 provides: "In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of this Act, it shall be necessary for the State to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment." Now then, the State can not stop with proving that the defendant had the license to sell, had a place to carry on the business, and had in his possession the property to sell. Ordinarily when this proof is made, it might be said that the party was engaged in the business, yet the law requires that the State shall go one step farther and prove that he has made two sales within three years. Section 3 is, in the nature of things, a limitation upon the State in its proof and regulates the quantum of proof, and we do not think that the pleader is required, in order to make a complete bill of indictment, either to allege that there was at least two sales made, or the names of the parties to whom the sales were made. This, to our minds, is a question of evidence and not pleading. All of the cases cited by counsel in his brief are cases where there were individual sales of whisky under the local option law, and the court held that the names of the parties to whom the sales were made should be set out. We do not think that this conclusion is in opposition to article 440 of the Code of Criminal Procedure, which provides that "Everything should be stated in an indictment which it is necessary to prove, but that which is not necessary to prove need not be stated." The averments of an indictment must be as specific as the language of the statute on which it is founded, and the proof must correspond with the averments. The majority of the court is of opinion that the indictment is sufficient. Judge Davidson, however, does not agree with the conclusion, and is of opinion that in order to make a valid indictment the pleader must set out that at least two sales were made, and must give the names of the parties to whom the sales were made as well as the time of the sales.
4. On the trial of the case the court charged the jury as follows: "You are charged accordingly, that if you believe from the evidence beyond a reasonable doubt that the defendant did as charged in the indictment between the 12th day of July, 1909, and the 31st day of
August, 1909, in Justice Precinct Number Five (5) in the county of McLennan, and State of Texas, either alone or in connection with another or others unlawfully engage in and pursue the occupation or business of selling beer, and if you further believe from the evidence beyond a reasonable doubt that said beer was an intoxicating liquor, then and in that event you will find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for not less than two or more than five years." This charge is incorrect and not the law. The party must not only be engaged in the business and pursuing the occupation of selling, but the State must prove that he has made as many as two sales within the prescribed period, and the failure of the court to direct the jury that before they could convict the defendant the State must prove at least two sales within the prescribed limit, was error, for which the case must be reversed.
5. On the trial of the case the court omitted to define to the jury what was the meaning of pursuing the occupation or business or selling beer. The appellant requested a special charge as follows: "You are charged that before you can convict the defendant in this case you must believe from the evidence beyond a reasonable doubt that the said W.I. Fitch was engaged in the occupation or business of selling intoxicating liquors in a justice precinct in which the sale of intoxicating liquors had been prohibited under the laws of this State without being authorized and permitted to do so by law. In this connection, you are further charged that by the term `occupation' or `business,' as used in this statute, is meant the calling, trade, vocation or business which one principally engages in to procure a living or obtain wealth, and before you can convict the defendant in this case you must believe beyond a reasonable doubt that he was pursuing the occupation or business of selling intoxicating liquors in a precinct in which the sale of intoxicating liquors had theretofore been prohibited by the laws of this State, without being authorized so to do by law, and that he was so pursuing said occupation or principal business for the purpose of procuring a living or obtain wealth." Counsel in his brief has cited us to the case of Cohen v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 67, as authority in point in support of the special charge requested. The Cohen case was dealing with a different subject entirely. In that case the defendant was indicted for pursuing the occupation or engaging in the business of keeping or storing spirituous, vinous and intoxicating liquors for others in a territory where the sale of intoxicating liquors had been prohibited by law, and this court held that the definition of business and occupation as given by the court was too restrictive. However, this court did not hold that the proof must show that the business was his principal business. We do not think that the charge requested by appellant in this case should have been given, as the same would make it practically impossible to ever enforce the statute in question, and that it gives to business and
occupation a more enlarged meaning than is contemplated by the Act itself. The words: "Vocation or business which one principally engages in to procure a living or obtain wealth," are not applicable to this kind of case. If this is the law and must apply in cases like the one before us, it would amount to an impossibility to ever convict a party. The statute evidently did not contemplate that such an enlarged meaning should be given to the words business and occupation. It was in the mind of the Legislature, evidently, to reach those cases where a man secretly, covertly and designedly carried on the business of selling whisky when he had opportunity. It did not require that it should be his principal business; it did not require that he should give his whole or the greater part of his time to it, but it was intended to reach cases where a man might plow all day and sell whisky at night that he had previously hid under his hay stack, or that he might engage in his usual avocation during the day and have concealed at some place whisky, and that he followed the business of selling this whisky whenever the opportunity presented itself. In other words, if he had a principal occupation, and yet engaged in the sale of whisky as a side line, and secretly, the law was intended to reach him, and it was not intended to make it exclusive. While the charge requested by appellant, we think, was not the law, it was sufficient to call the attention of the court to the fact that some definition should have been given to the words "engaged in the business or pursuing the occupation of selling whisky." We think that in cases arising under this statute it is not only necessary to make out a case on the part of the State to prove that the defendant kept in his possession whisky for sale, and that he had whisky on hand, but that he must actually make two sales before the offense is complete, and for the reason that the court failed to charge or give to the jury any guide so that they might determine what was the business or occupation within the meaning of the Act, the case will have to be reversed.
6. On the trial of the case it seems that it was shown that in the town of McGregor, which was situated in Precinct No. 5, which had adopted local option, the appellant in this case was the manager of the club that had for its sole object the purpose of procuring beer and having a place where they might drink it; that they rented a room and that any person who desired to join the club would come to the door of entrance and the porter for the club would take his name in and he would be voted on by those in the room at the time, and if he was notified he was elected, he would go in, register his name on the book, pay twenty-five cents as his monthly amount of the rent and that he would drop twenty-five cents in a box, which would entitle him to drink beer that evening, and every time he would come thereafter he was required to drop twenty-five cents in the box before drinking beer. As to how the club originated or was organized the record is silent. As to how the club would get sufficient number of members to vote on the admission of a new member we are not advised.
The proof shows and the appellant testified that he was elected the manager of the club and that it was his duty to get up the money, see that the rent was paid, pay the porter and to make the orders for the beer and pay for it; that he did this during the months of July and August, 1909. There was no testimony that the club was regulated by any written by-laws. The appellant testified further that he was looked to to pay the rent of the hall, or room, where they met during this time; that there was a standing order for beer, which was shipped in kegs, for a keg each day, unless more was ordered specially. He testified the books were balanced up first by one and then another. A great many witnesses were introduced in the trial of the case and the statement of facts is quite voluminous, but the testimony of all the witnesses was very much alike, and the above is about the substance of all the testimony that was offered on the trial of the case, and we feel that we are justified, upon an inspection of the statement of facts, in saying the proof shows that this business was managed, controlled and directed by the appellant. We are further inclined to hold that the same was operated in violation of the local option law, and that the facts are not unlike the case of Feige v. State, 49 Tex.Crim. Rep.. In the Feige case this court held where, upon a trial for violating the local option law, evidence showed that the money paid in by the club members of an association was paid into the fund and became the property of the said association with which it furnished beer to the members of the club through its manager, and that the money was not sent out of the local option territory to purchase beer for the individual members or groups of members, but that the beer was purchased by the corporation and sold at five cents a glass by the manager to individual members; that the manager became the vendor of the beer and the principal in the transaction, and that the whole plan pursued was a mere subterfuge to cover a sale made in local option territory and this, although the manager was not personally present at the time of the sale. See also Krnavek v. State, 38 Tex.Crim. Rep..
For the errors indicated, the judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. May 4, 1910.