Holley v. State

14 Tex. Ct. App. 505, 1883 Tex. Crim. App. LEXIS 204

• Court: Court of Appeals of Texas
• Decided: June 23, 1883
• Docket: Nos. 2645 and 2738
• Status: Published

Opinions

White, Presiding Judge.

It is provided in the twentieth section of Article XVI (General Provisions) of our State Constitution that “the Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice’s precinct, town or city, by a majority vote, from time to time may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.”

In pursuance of this command of the organic law, the Fifteenth Legislature, the first which assembled under the new Constitution after its adoption, on the twenty-fourth day of June, 1876, passed an act entiled “An act to prohibit the sale, exchange or gift of intoxicating liquors in any county, justice’s precinct, city or town in this State that may so elect, prescribing the mode of election, and affixing a punishment for its violation.” This act, generally known as such, is, under the title of “Local Option,” rearranged into convenient articles, but copied almost verbatim into our Revised Statutes from Article 3227 to Article 3239 inclusive, except the fifth section, in which is imposed a penalty for the violation of the law, and that is so changed by Article 3229 as to make the violator subject to prosecution and punishment as prescribed in the Penal Code.

As seen from the caption of the act, its object and purpose is “to prohibit the sale, exchange, or gift of intoxicating liquors,” -etc. It will be found, however, upon an examination of the various provisions of the statute, that, in regard to every detail concerning, and every prerequisite to the contemplated election for prohibition, and the subsequent publication of the result after it has been held, there is no mention made of the “giving away” of intoxicating liquors, and all said provisions have reference to and only mention the prohibition of “the sale” of intoxicating liquors. (Geni. Laws, Fifteenth Legislature, pp. 26 to 28; Revised Statutes, Arts. 3227 to 3238 inclusive.)

After these specifications of the details with regard to the adoption of local option, Article 3239 provides “that when any such election has been held and has resulted in favor of prohibition, and the aforesaid (commissioners’) court lias made the order declaring the result, and the order of prohibition, and has caused the same to be published as aforesaid, any person who shall thereafter, within the prescribed bounds of prohibition, sell, exchange or give away, with the purpose of evading the provisions of this title, any intoxicating liquors whatsoever, or in any way violate any of the provisions of this title, shall be subject to prosecution by information or indictment, and shall be punished as prescribed in the Penal Code.”

Article 378 of the Penal Code provides: “If any person shall sell, exchange or give away any intoxicating liquors whatever in any county, justice’s precinct, city or town in this State, after the qualified voters of such county, justice’s precinct, city or town have determined, at an election held in accordance with the laws of this State, that the sale or exchange of intoxicating" liquors shall be prohibited in such county, justice’s precinct, city or town, and the Commissioners’ Court have passed an order to that effect, which order has been duly published in accordance with law, he shall be fined in a sum not less than twenty-five nor more than two hundred dollars.”

In the cases from which the present appeals are taken the appellants were tried and convicted under the article of the Code just quoted, upon an information charging them with giving away intoxicating liquors in justice’s precinct number two of ■Wise county, after “prohibition” or “local option” had been duly and legally adopted in said precinct at an election held for that purpose.

Many nice and intricate questions have been submitted for consideration in the very able and interesting oral and written arguments and briefs of counsel for appellant, but whilst we recognize their importance, we propose mainly to limit our discussion to a single proposition, since, if the view we have taken of it be correct, its decision will be conclusive of the whole case here submitted.

This proposition is: Are our civil and criminal local option statutes (quoted above) constitutional in so far as they attempt to prohibit the giving away of intoxicating liquors within the prescribed bounds where local option has been adopted? We are fully conscious of both the delicacy and difficulty of this question, and after much research have found no case exactly parallel with the one under consideration, owing to the fact that no ■other State Constitution contains a provision similar to ours with reference to the subject, so far as we are advised. In most of the States where such laws have existed, they have been simply •original legislative enactments adopted by virtue of that inherent power which is supposed to be absolute in that branch of ■State government when not limited or restricted by constitutional provisions, State or Federal. Such enactments have been .generally passed and referred for subsequent ratification and approval to the popular vote in the State at an election to be held for that purpose.

A contrariety of opinion has existed as to the authority of the Legislature to submit for ratification by popular vote the adoption or rejection of a proposed law—the objection being that it was an attempted delegation of the trust to make laws, which trust is confided alone to the Legislature—and in some States laws thus adopted have been held unconstitutional. But, says Mr. Cooley, “we think that at this time the clear weight of authority is in support of legislation of this nature, commonly known as local option laws.” It is said: “ The Legislature cannot delegate the power to make laws, but it can make a law to delegate the power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny that would be to stop the wheels of government.” (Cooley’s Const. Lim., 4 ed., 152, note 2; Locke's appeal, 33 Pa. State, 491; 38 Miss., 504; 51 Ill., 94; 35 Ark., 69.) Ho such ■question, however, can arise with us, because the provision ■quoted from our Constitution not only conferred the right but made it obligatory upon the Legislature to pass an act enabling the people to adopt prohibition by election, whenever they might ■desire to do so. And doubtless the inducement to engraft this provision upon the Constitution was to avoid all those perplexing constitutional questions which had arisen in other States with regard to such laws when submitted for adoption to the people.

With us the question is not the constitutionality of the local option law so far as the action of the people in determining its ■adoption is concerned, for that is the mode provided by the Constitution, and, so far as their duties and privileges in the premises are prescribed, there can be no doubt that the Legislature, as we have seen, have limited the popular action within the pre- • scribed constitutional grant of power on the subject. This action only determines “ whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.”

But the Legislature has not stopped at this [point. It goes further, and declares, upon its own authority, and upon its own motion, that whenever the people have prohibited the sale of intoxicating liquors, then it shall also be unlawful to give away, and any one who gives away intoxicating liquors shall be punished. Has the Legislature the power and authority to engraft this additional servitude, if we may so call it, upon the constitutional act of the people? The argument in support of such authority is that all power to make laws is inherent in the people when acting through their legislative branch of government; that independent of any constitutional provision expressly inhibiting it, the Legislature can, by virtue of this inherent power, legally prohibit the sale or giving away of liquors throughout, or in any locality of, the State; that the Constitution, being silent upon the subject of giving away, left that matter, where it of right still belongs, to be acted upon or not by the Legislature as they saw fit; and that it is evident that the object and intention of the framers of our organic law was primarily to provide that any disposition of intoxicating liquors, no matter how, might be prohibited in any locality where the people had declared that such articles should not be sold; and that the prescribing a penalty for giving away was simply carrying out more effectually such original intention, because to allow a giving away in such localities would, in a great measure, defeat and render nugatory the prohibition or local option, and the purposes of its adoption.

The distinguishing characteristic difference between the Federal and State constitutions is that the Constitution of the United States is but a grant of legislative power, and the Congress can, in framing laws, only exercise such authority as is granted, whilst, on the other hand, State constitutions are only limitations upon the complete power with which, otherwise, the legislative department of the State was vested in its creation. "Congress can pass no laws but such as the Constitution authorizes, either expressly or by implication, while the State Legislature has jurisdiction of all subjects on which its legislation is not prohibited. The law-making power of the State, it is said in one case, recognizes no restraints, and is bound by none, except such as are imposed by the Constitution. That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication.” (Cooley’s Const. Lira., 4 ed,, p. 210.)

We concede, then, that unless the Constitution has by express words or by necessary implication limited the action of the Legislature, then the Legislature has the right by general law to prohibit the sale and the gift of intoxicating liquors also.

Has the Constitution done this? Obviously it has not done so by express words. Has it done so by necessary implication from ■ the words used? This presents the question in a nutshell, but subordinate to its determination a number of collateral questions growing out of and incident to it must first be disposed of. Chief among these is to arrive at a proper construction of the language used. “In interpreting clauses we must presume that words have been used in their natural and ordinary meaning. Says Chief Justice Marshall: ‘The framers of the constitution and the people who adopted it must be understood to have employed words in their natural sense, and to have understood what they meant.’ This is but saying that no forced or unnatural construction is to be put upon their language, and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is so often made by interested subtlety and ingenious refinements to induce the courts to force from these instruments a meaning which their framers never held, that it frequently becomes necessary to re-declare this fundamental maxim.” (Cooley’s Const. Lim., 4ed., 72.)

In the Constitution the language used is “whether the sale of intoxicating liquors shall be prohibited,” etc. We are aware that in Franklin v. The State, 12 Maryland Reports, 236, Chief Justice Le Grand holds that the word “give” means the same thing as the word “sell” in the statute he was construing; but in the subsequent case of Parkinson v. The State, 14 Maryland, 184, the former case is overruled in effect, the court holding, and as we think correctly, that “in their ordinary and familiar signification the words sell and give have not the same meaning, but are commonly used to express different modes of transferring the right to property from one person to another. A sale means a transfer for a valuable consideration, whilst a gift sigl ^ es a gratuitous transfer without any equivalent.” Ho subtlety oi „ easoning or ingenuity of argument can, in common acceptation, make the two words mean the same thing, and “usual acceptation in common language” is the rule provided by our Code for the definition and meaning of words therein used. (Code. Crim. Proc., Art. 59.)

But it may be urged that, though the words are not the same, we are not limited to the words alone, but should look to the intention of the law-maker, and, from that intention, give such construction “as shall suppress the mischief and advance the remedy.” Discussing the intent as a factor, Mr. Cooley says: “The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the law-giver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing remains except to enforce it. Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Possible, or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” (Cooley’s Const. Lim., 4 ed., p. 68.)

How, to apply the rule. There can be no doubt but that the intention was to prohibit the sale of intoxicating liquors, for that intention has been expressed in the most plain, simple, positive and unambiguous terms by the Constitution. So far the intent is unquestionable and explicit. Did the framers of that instrument intend that a gift should also be prohibited? It is scarcely possible, or even probable, that they could have done so; for it is but just and reasonable to presume that, had such been the case, they would, when they had the matter in hand, have expressed that intent in language equally as plain and unambiguous in the instrument itself. Construing the instrument by its own terms, it must be clear that its makers never intended to prohibit the giving away of intoxicating liquors, or they would have said so in the provision itself when they had the subject under consideration. Evidently the Constitution has not attempted to provide for the passage of any law prohibiting a gift of intoxicating liquors. It has provided for the passage of a law prohibiting the sale. How far has this express constitutional action affected the legislative right to pass laws prohibiting the giving away of intoxicating liquors?

As has been seen, had there been no constitutional action, then the Legislature, by virtue • of its inherent absolute power, could have passed a law prohibiting all the different characters of the uses and disposition of intoxicating liquors, including a gift of the same. It is said the Constitution contains no provision relative to the gift, and that in so far as that subject is concerned the Legislature still retains its inherent power, and can pass laws with reference to it, and that such laws are valid, by virtue of this absolute inherent power, to prohibit the gift within the same bounds where the people have adopted local option. We do not think so. Without the constitutional provision, local option could not be adopted by the people in any particular county, city, justice’s precinct, or town, unless it were done by a special or local law passed in conformity with section 57 of Article 3 of the Constitution, which provides that “Ho local or special law shall be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published thirty days prior to the introduction into the Legislature of such bill, and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the Legislature before such act shall be passed.” But for the constitutional provision we have been discussing, and in the absence of a general law, the people of any particular locality would have had to comply with this fifty-seventh section before they could have had “local option.” “Local option,” even under the general law, means what its name imports—“option” to adopt a law for a particular locality, and not a law general in its operation throughout the State; “local,” as applied to a bill or act, means one which touches only a portion of the territory of the State, or its citizens. (43 N. Y., 10; 68 N. Y., 381.) When adopted in conformity with the law, it only operates as a local or special law.

But again, can the Legislature, so long as this constitutional provision remains part of the organic law, in the exercise of its inherent power, pass, subject to ratification by the people, an independent general law prohibiting the gift of intoxicating liquors? To concede such power it would be necessary to hold . that the constitutional provision was not mandatory, but merely directory. In Cannon v. Mathes, Chief Justice Nicholson says: “The essential nature and object of constitutional law being restrictive upon the powers of the several departments of the government, it is difficult to comprehend how its provisions can be regarded as merely directory.” (8 Heisk., Tenn., 405-517.)

Mr. Cooley says: “Courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must at all times shape their conduct.” (Cooley’s Const. Lim., 4 ed., p. 94.)

Being simply a chart containing limitations upon power, whenever the Constitution declares how power may be exercised over any subject, then no power can be exercised over that subject in any manner not clearly within the plain import of the language of the Constitution. Mere silence or failure to provide for some particular feature of the subject cannot be construed into a neglect or omission, or an ignoring of that feature. NTor do we think it can rightly be said that the Constitution is silent. It has spoken in words as plain as language could well make it. It may be the language of silence, but it is a language nevertheless which flows naturally and by irresistible implication from its spoken words. As we read this language, the intention to prohibit the gift or giving away of intoxicating liquors in local option districts never entered into either the intention or act of our Constitution makers, and that it is a strained and unwarranted construction which would deduce a different inspiration from the words they have used to express the character and extent of their intention.

“ It is established as a general rule that when a constitution gives a general power or enjoins a duty, it also gives by implication every particular power necessary foh the exercise of the one or the enjoyment of the other. The implication under this rule, however, must be a'necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied as being more effective or convenient.” * * * * *

“Another rule of construction is that ivlien the Constitution defines the circumstances under ivhich a right may may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference, to add to the condition or to extend the penalty to other cases.” (Cooley’s Const. Lim., 4 ed., p. 78.)

This rule is decisive of the controversy. The Constitution defines the circumstances under which the people may prohibit the sale of intoxicating liquors under legislative enactment, and the Legislature have attempted to extend the prohibition to a gift, and have imposed a penalty for giving away intoxicating liquors. This they had no authority to do. On the contrary, the Constitution having specified the bounds within which they were to act, it was a direct assumption and usurpation of unwarranted power to go beyond those bounds.

There is another view of the question which suggests itself. Intoxicating liquors are treated and considered as other personal property; a revenue tax is imposed upon their sale as upon other merchandise. If personal property, then many respectable authorities might be adduced, holding that it is beyond the power of the Legislature to prohibit a man from giving away his personal property. It is not necessary for us to decide this.

We hold that Article 3239 of the Revised Statutes and Article 378 of the Penal Code, in so far as they prohibit and impose a penalty for the gift or giving away of intoxicating liquors within the prescribed limits where local option has been adopted, are unconstitutional and void, and that a conviction under their provisions for a gift or giving away intoxicating liquors cannot be permitted to stand. Of course if a party, under the sham or pretense of giving away, sells some other article for more than its worth, and gives the purchaser as part consideration a drink of intoxicating liquor, he could be prosecuted and convicted, not for the gift but the sale of the liquor.

Because the provision of the law under which appellant was prosecuted and convicted in these cases is unconstitutional and void, the judgments are reversed and the prosecutions dismissed.,

Willson, Judge, dissents from the argument and conclusions above reached on the constitutionality of the law, but, for other reasons stated, holds also that the judgments should be reversed and the prosecutions dismissed.