The appellant in this case was indicted by the grand jury of Comanche County, charged with pursuing the occupation of selling intoxicating liquors in violation of law. He was tried, convicted, and sentenced to two years in the penitentiary.
The defendant filed a motion in the trial court to quash the indictment, which was by the court overruled, and to this action of the court defendant objects as his first ground in his motion for a new trial.
In this case a very able brief has been filed, contending that in indictments of this character, and for all violations of the local option law, the averments must negative all exceptions under which intoxicating liquors can be sold, and that it is not sufficient to conclude, after making all necessary allegations showing that local option is in force in proper form, that the occupation was pursued and sales made, "in violation of said law, which law was then and there in full force."
The indictment in this case is in exact terms of the case of Mizell v. the State, 59 Tex.Crim. Rep.; 128 S.W. Rep., 125, in which the negative allegation was "in violation of said law, which was then in full force," etc. The court in that case says: "We hold that this indictment is valid, and commend it to the prosecuting officers as a precedent in drafting indictments for pursuing the occupation and business of a whisky dealer in local option territory." This opinion was concurred in by the entire court, except that Judge Davidson says: "I concur in holding the indictment should charge that it is necessary to aver in the indictment (1) that the party must be engaged in the business of selling liquor in local option territory in violation of law; (2) that there must be at least two sales in addition
to carrying on such business; (3) that the names of the purchasers and dates of sale must be alleged in the indictment. But I dissent from the holding that such acts can be punished in local option territory, where such law was in operation at the time that the law went into effect."
The holding in this case that the indictment herein is valid, is approved in the case of Murphy v. The State, 59 Tex. Crim. 479; 129 S.W. Rep., 138, and referred to as a form to be followed. Again, in Sutphen v. State, 59 Tex.Crim. Rep.; 129 S.W. Rep., 144, this form is approved. In the case of Payne v. State, 60 Tex.Crim. Rep.; 129 S.W. Rep., 1197, while the indictment is quashed on a different ground, yet, Presiding Judge Davidson, in rendering the opinion, cites with approval the holding in the case of Mizell v. State, 59 Tex.Crim. Rep.; 128 S.W. Rep., 125, on the question of the form of the indictment. By reference to our Penal Code, we find that the Legislature, in 1881, passed a law in which it was provided that, "In an indictment for selling intoxicating liquor in violation of any law in this State, it shall be sufficient to charge that the defendant sold intoxicating liquors contrary to law, naming the person to whom sold, without stating the quantity sold; and under such indictment, any act of selling in violation of the law may be prosecuted." In conformity to this law, Judge Winkler, in 1882, in the case of White v. State, 11 Texas Crim. App., 476, holds that an indictment drawn in accordance with its provisions is valid. We are aware of the opinion by Judge Willson, in the case of Mansfield v. State, 17 Texas Crim. App., 468; in which Judge Willson states that this section of the Act of 1881, had been repealed, and that it was no longer necessary to allege the name of the purchaser. But from a careful inspection of the Acts of the Legislature from 1881 down to and including the year 1885, when this latter opinion was rendered, it can be seen that the learned Judge was mistaken in saying this clause of the Act had been repealed by the Legislature. But even had that statement been true, the Legislature, in 1895, reenacted the provision and brought it forward in the Code of Criminal Procedure, as Article 452, and it is now the law of this State, and has been since 1895, for more than fifteen years. In the case of Williams v. The State, 37 Tex.Crim. Rep., Judge Hurt, who is recognized as one of the ablest lawyers who ever sat on this bench, says: "Must the indictment negative the fact that the liquor was sold for sacramental purposes, or for medicinal purposes, under the prescription of a physician? The Act defining the offense is contained in Article 402, Penal Code, 1895, and Article 3384 Rev. Stat., 1895. These articles do not refer to the sale of wine for sacramental purposes, nor alcoholic stimulants as medicines, in case of actual sickness," etc. These articles, exceptions, are not found in the articles defining the offense, but in separate and distinct articles, to wit: Article 403, Penal Code, 1895. Under well
settled rules, all the elements entering into the offense must be alleged in the indictment. The Legislature can not relieve the State of the necessity of so framing the indictment as to charge the accused with all the acts and intents which constitute the offense. The question, therefore, arises whether this indictment charges the accused with an offense. It evidently does. It is contended by counsel, however, that though the exceptions may not occur in the same clause or article, yet, if they are interwoven or engrafted upon the Act which defines the offense, they must be negatived. We do not question the correctness of this proposition in a proper case. An Act may be so framed when taken all together, as to require exceptions to be negatived, though they may not be found in the enacting clause. This, however, is rare. The statute in reference to this offense is perfectly clear."
The statute in this case makes it an offense to pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any territory in this State, where the sale of intoxicating liquors has been prohibited by law. The indictment alleges that the sale was not permitted, but specifically alleges it was in violation of said law, the sale of intoxicating liquors being then and there prohibited. If it is contended that it meant that a sale must be illegal under the old act, then Judge Hurt says that the exceptions need not be negatived in the indictment, further than is done in this case.
In the case of Malone v. The State, 39 S.W., Rep., 1118, Judge Hurt again affirms the rule laid down in the case of Williams v. The State, supra. In the case of Loveless v. State, 49 S.W., Rep., 601, it is held: "That it is not necessary that the order for the election embrace the exceptions, and because the exceptions for medicinal and sacramental purposes are not contained in the order for the election or in the order declaring the result, and the order absolutely prohibits the sale of intoxicating liquors in the local option precinct, does not inhibit the sales for such purposes. It has reference to such sales as can be prohibited under the local option law, and no more (citing Williams v. The State, 37 Tex.Crim. Rep.)."
In the Encyclopedia of Law, Vol. 22, pages 285 and 286, a recognized standard authority, the following rule has been laid down: "Power of Legislatures. It is within the power of the Legislatures under such constitutional provision, to prescribe the form of the indictment or information, and such form may omit averments regarded as necessary at common law; but the Legislature, while it may simplify the form of an indictment or information, can not dispense with the necessity of placing therein a distinct presentation of the offense containing allegations of all the essential elements. The constitutional right of the accused to demand the nature and cause of the accusation, is not infringed by statutes providing that accessaries may be indicted as principals; dispensing with an
allegation of time when it is not of the essence of the offense; or obviating the necessity of laying a venue; of negativing astatutory exception, or of making a particular description of certain kinds of property. And it has been held that the Legislature may provide that it shall be unnecessary to specify the person whom it was intended to defraud in averring an intent to defraud. Where a particular offense, such as homicide, is divided into degrees which are defined by statute, the indictment may follow the general form without specifying the elements which fix the particular degree, and still fulfill the requirement of informing defendant of the nature and cause of the accusation. But the Legislature can not provide that if, on the trial of an indictment for a specific offense, it is found that the offense has not been committed, but that another has, a conviction may be had for the offense proved, or that a person indicted for an offense consisting of one state of facts, may be tried and convicted under that indictment of an offense consisting of a different state of facts. In some cases the courts have intimated that an indictment in the statutory form can not be held to infringe the constitutional privilege of the accused to be informed of the nature of the charge, when the accused is entitled to secure a specification of the particular acts relied on by the government, through a bill of particulars," citing many authorities.
Legislation by statute has done away with the necessity of negativing the exception in this character of case, even if it was necessary at common law, by Article 452 of the Code of Criminal Procedure. In the case of State v. Higgins,13 R.I. 330, it is held that the Legislature has power to provide: "It is entirely reasonable, we think, that a person who is prosecuted for an act which is generally criminal, should, if licensed to commit it, be required to show his license in defense whenever there is evidence to establish his guilt if he has no license." Our Legislature has not gone that far, but it has provided that it need not be negatived in the indictment, and we think it has the power to do so. The form of indictment in this case, as regards negative averments, has been in use in this State for many years with the sanction and approval of this court. In May, 1910, this court, in speaking of a form of indictment exactly similar in verbiage, says: "We hold that this indictment is valid, and commend it to the prosecuting officers as a precedent in drafting indictments for pursuing the business and occupation of a whisky dealer in local option territory," and now to overrule this decision, in the face of the statute on this question, would work incalculable mischief. The prosecuting officers of this State thought, and had a right to think, that this court had given the question mature consideration before sending it forth with its commendation and approval. They have followed the advice given, in the main, and about all the cases coming to this court are written in this form. The State has been put to the expense of trials; a number of men are serving terms in
the penitentiary under it, affirmed by this court; prosecutions are pending in many counties in Texas, and for the court to now change its views in so short a time would cause the citizenship of the State to lose confidence in its opinions, and would lead the legal profession to expressions of ridicule. In passing on the construction of statutes, Mr. Justice Brewer (Holy Trinity Church v. United States, 143 U.S. 457), says: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or an absurd consequence."
If this is true in general of statutes, how much more consideration should we give to the statute law of our own State that has stood for fifteen years, and the opinions of our own court, rather than by overruling the decisions and overriding the Code of Criminal Procedure, adopt another line of thought, which would throw into confusion our District Courts and cause a needless expense to the State, and perhaps in some instances, permit those charged with crime to escape without trial, by reason of limitation preventing reindictment. We are aware that at common law, many decisions can be found holding that exceptions must be negatived, but it is in those States where the statutes have not changed the rule.
We are aware that the Act of the Legislature, known as the common sense indictment bill, is thought by some to have been held unconstitutional. Some of its provisions were, while other provisions contained therein were upheld and approved by the court. In the case of Dwyer v. State, 12 Texas Crim. App., 535, when the court was composed of Judges Hurt, Willson and White, the court held:
"The principal question presented in this case is the sufficieny of the indictment. It is the exact form prescribed for the crime of murder, by the Act of March 26, 1881. (Gen. Laws 17th Leg. Chap. 57, p. 60, form No. 2.) It is urged that this form is not an "indictment" within the meaning of section 10 of the Bill of Rights. While we hold that several of the forms prescribed by that Act are insufficient and invalid because they do not set forth the acts, facts and omissions which constitute the offenses they are intended to charge, we are of the opinion that the form prescribed for murder is not subject to this objection. It is very brief, and yet we think it contains every essential fact and element constituting the crime of murder. What is murder as defined by our Code? In substance it is the killing of a human being, with malice aforethought. It is an offense composed of but few elements; in fact, but two, 1, a killing, and 2, that the act of killing was committed with malice aforethought. This indictment alleges the act of killing. It alleges that the killing was with malice aforethought on the part of the slayer. These are not allegations of legal results or conclusions, but of acts and facts which, taken together, complete the offense of murder. By the allegation of these acts and facts, the defendant is fully informed of the nature and cause of the accusation against him. He is informed
that about a certain time, in a certain county, in the State of Texas, he killed a certain person by striking him with a scantling, and that he committed this act with malice aforethought. He knows from this information the facts that he is called upon to meet, and these facts, when proved, constitute murder. We therefore hold this indictment to be good."
This holding has been recently approved by this court in the case of Ringo v. State, 54 Tex.Crim. Rep., and in all cases where the question has been raised since the Legislature adopted the form. By some it has been supposed that the decision in the case of Huntsman v. State, 12 Texas Crim. App., 619, held this Act invalid, but a careful reading of this case will show that the question now under discussion, was not involved in that case, but the question, when a man is indicted for theft, could he be convicted of embezzlement, and the court held that he could not. Both opinions of Dwyer v. State, and Huntsman v. State, supra, were delivered at the Austin term of court, 1882, by the same judges, and if it had been intended to hold the Act of March 26, 1881, invalid, as a whole, certainly they would not have held the indictment for murder valid in the Dwyer case, supra. It certainly is not sufficient at common law, and it is only held valid by virtue of the Act of the Legislature. All homicides are not unlawful. If a person kills another in defense of himself, or in defense of his property, he is guilty of no offense. (Art. 674, Penal Code.) There are many other instances in which homicide is justifiable, but in bringing an indictment charging a person with homicide, it is not necessary to negative these exceptions. It is true these exceptions are in different articles of the statute, and so in the statute for violating the local option law the exceptions are in different articles.
We think the Legislature had the authority to pass article 452, and in following it the defendant is fully apprised of the nature and cause of the offense. The court did not err in overruling the motion to quash the indictment.
2. The second proposition relied on in this case is that prohibition having been adopted in Comanche County prior to the enactment by the Legislature of the law making it a penitentiary offense to pursue the occupation of selling intoxicating liquors in prohibition territory, does not apply in that county.
Our able and learned presiding judge, Judge Davidson, has written an opinion overruling the case of Fitch v. State,58 Tex. Crim. 366, 127 S.W. Rep., 1040, and the cases since following that decision. The case of Lewis v. State,58 Tex. Crim. 351, 127 S.W. Rep., 808, and the cases there cited are relied on as the basis for his opinion in overruling the former decision of this court. We want to do him the credit of not insisting that the Legislature had no power to enact the law. He admits that the law is constitutional, and his only insistence is that the law did not take effect in those
counties where local option was in full force at the time of its enactment by the Legislature, but it became effective only in such counties as may thereafter adopt the law prohibiting the sale of intoxicating liquors.
This brings down as the sole question of disagreement between us the one question: is the law making it a felony to pursue the occupation of selling intoxicating liquors in force in all territory in Texas where prohibition has been adopted, or is it in force only in such counties where prohibition has been adopted since July 11, 1909, the day the law became effective?
The law itself reads 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."
By section 4 it is seen that the law itself declares that "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, that the law be put in force at once. And in section 1 of the Act the words "has been or hereafter shall be prohibited," evidencing it as the clear and undisputable intention of the Legislature that the law should be applicable as well to territory where prohibition
had theretofore been adopted as to territory which should thereafter adopt it. But should it be contended that these words do not clearly show the intention of the Legislature to be that the law should become effective in all territory where prohibition is in force, then by reference to the journals of the Legislature (which has always been approved when the intention of a law is in doubt) we find on page 124, Journal of the Senate (Acts of the called session of the Thirty-first Legislature), that when this bill was under consideration, that an amendment was offered in terms as follows: "Amend the bill by striking out of line 16, page 1, the words `has been or' and adding at the end of line 19, page 1, the following: `Provided, the punishment in counties, justice precincts, cities, towns or subdivisions of a county, where the sale of liquor is now prohibited by law, shall be as now provided by law, and this Act shall only apply to such counties, justice precincts, cities, towns or subdivisions hereafter prohibiting the sale of intoxicating liquors.'" The amendment was rejected, manifesting beyond all shadow of doubt that if the intention of the Legislature is to govern, that the law should become effective in all territory where prohibition had theretofore been adopted, as well as in territory thereafter adopting it.
The United States Supreme Court, Justice Storey rendering the opinion, lays down the rule: "This is a legislative Act, and is to be interpreted according to the intention of the Legislature apparent on its face. Every technical rule as to the construction or force of particular terms must yield to the clear expression of the paramount will of the Legislature." (2 Pet., 662.)
A legislative Act is to be determined according to the intention of the Legislature apparent upon its face, and is not to be defeated by technical rules (U.S. v. Freeman, 3 How., 556). This is the unbroken rule of the United States Supreme Court, and in support of it, decisions from many States might be referred to. The decisions in these cases have been followed and cited in Wilson v. Biscoe, 11 Ark. 44; Linsley v. Brown, 13 Conn. 192; State ex rel. Bash v. Jefferson, 20 Fla. 432; Akin v. Freeman,49 Ga. 51; Cory v. Carter, 48 Ind. 327, 17 Am. Rep., 738; Gray v. Cumberland Co., 83 Me. 435; Maxwell v. State, 40 Md. 273; People ex rel. Twitchell v. Blodgett, 13 Mich. 127; Lane v. Missoula Co., 6 Mont. 475; Smiley v. Sampson, 1 Neb., 56; Brown v. Wright, 13 N.J. 240; Allen v. Cook, 26 Barb., 374; Jackson v. Potter, 42 How. Pr., 260; New York v. Lord, 18 Wend., 126; Randell v. Richmond D. Ry., 107 N.C. 748; State v. Sinks,42 Ohio St. 345; Deddrick v. Wood, 15 Pa., 12; Buffham v. Racine,26 Wis. 464.
In our own State, what have our courts held in regard to this matter? Murray v. State, 21 Texas Crim. App., 620, discusses this matter at length, quoting numerous authorities. It reads:
"The statute, article 683 of the Penal Code, is in the following words, viz.: `If any person shall wilfully and mischievously injure or
destroy any growing fruit, corn, grain or other agricultural product or property, real or personal, of any description whatever, in such manner as that the injury does not come within the description of any of the offenses against property, otherwise provided for by this Code, he shall be punished by fine not exceeding one thousand dollars.'
"It is contended that, under a fair and necessary construction of the language of this article, the acts charged against the appellants in the information herein come plainly and legitimately within the purview of its language. The first question discussed is as to the proper punctuation of the language used, and it is contended that the grammar of the section favors the construction put upon the article by the prosecution.
"We deem the question of punctuation wholly immaterial, and we wish it distinctly understood that the matter of punctuation never entered, in the most remote degree, into the discussion and decision of the case, as shown by our previous opinion. On the contrary, we recognize to its fullest extent the rule, which, though embraced in the civil statutes, is, in our opinion, equally as applicable, and of binding force in criminal prosecutions, to the effect that `grammatical errors shall not vitiate a law, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands, and in no case shall the punctuation of a law control or affect the intention of the Legislature in the enactment.' (Art. 3139, Rev. Stat.)
"In Shridley v. The State, 23 Ohio State, 130, it was held that punctuation may always be disregarded or made to conform to the clear meaning and intention of the statute. So, in Randolph v. Bayue, 44 California, 366, it was held that courts will not permit an erroneous punctuation of the statute, in printing it, to have the effect of giving it an absurd construction. Independent of our statutes, these rules are now of almost universal application in matters of statutory construction.
"Discarding, then, from consideration all rules regarding punctuation or grammar, we come down to the plain question as to the proper construction which should be placed upon the language used in said article; and, in order the better to be enabled to do this, it becomes necessary to resort to those plain and well established rules which have been adopted and settled by long usage as the best guides by which the courts should be governed in their judicial action on such questions.
"The leading and controlling rule in the construction of statutes, in fact, the primary and fundamental one, is to interpret them according to their true meaning and intent. To ascertain this intent it is the duty of the court to find, by other established rules, what was the fair, natural and probable intent of the Legislature. For this purpose the language employed in the Act is first to be resorted to. If
the words employed are free from ambiguity and doubt, and express plainly, clearly and distinctly the intent, according to the most natural import of the language, there is no occasion to look elsewhere. (People v. Schoonmaker, 63 Barbour (N.Y.), 44, citing McCluskey v. Cromwell, 11 N.Y. 593.)
"We are aware that the rule of the common law which requires that penal statutes should be strictly construed, is abrogated in this State, and that there is now no distinction recognized with us in construing statutes, between those that are criminal or penal and those that are civil; but all are required to be construed alike liberally, with a view to carry out the intention of the Legislature. A general rule of construction is expressly provided in article 9 of the Penal Code, which reads: `This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words of a law.' (Act of February 12, 1858, p. 56; Penal Code, art. 9.)
"That distinguished jurist and law writer, Mr. Dillon, in the case of The United States v. Clayton, discussing this subject, uses the following apt, pertinent and forcible language. He says: `This is, as above observed, a question of legislative intention. Now, in what manner do the courts ascertain the legislative will? We answer that it is ascertained primarily and chiefly by the language the Legislature has used to express its meaning. We must suppose in the enactment of statutes, particularly statutes so important as the one under consideration, that Congress weighed well the words it employed. In the office of interpretation, courts, particularly in statutes that create crimes, must closely regard, and even cling to the language which the Legislature has selected to express its purpose. And when the words are not technical, or words of art, the presumption is a reasonable and strong one that they were used by the Legislature in their ordinary, popular or general signification. Statutes enjoin obedience to their requirements, and, unless the contrary appears, it is to be taken that the Legislature did not use the words in which its commands are expressed in any unusual sense. For these reasons, whose cogency is obvious, the law is settled that, in construing statutes, the language used is never to be lost sight of, and the presumption is that the language is used in no extraordinary sense, but in its common every day meaning. When courts, in construing statutes, depart from the language employed by the legislator, they incur the risk of mistaking the legislative will, or declaring it to exist where, in truth, it has never had an expression. The legitimate function of courts is to interpret the legislative will, not to supplement it, or to supply it. The judiciary must limit themselves to expounding the law; they can not make it. It belongs only to the legislative
department to create crimes and ordain punishments. Accordingly, courts in the construction of statutable offenses have always regarded it as their plain duty cautiously to keep clearly within the expressed will of the Legislature, lest otherwise they shall hold an act or an omission to be a crime, and punish it, when in fact the Legislature had never so intended it. `If this rule is violated,' says Chief Justice Best, `the fate of the accused person is decided by the arbitrary discretion of the judges, and not by the express authority of the laws.'"
In no instance have we been able to find where our Court of Criminal Appeals held otherwise since its organization down to the present time, and our Supreme Court adopts the same rule of construction. Judge Gaines (Mills County v. Lampasas County,90 Tex. 603), says: "Strictly speaking, there is but one rule of construction, and that is that the legislative intent must govern. All other canons of interpretation so called are but grounds of argument resorted to for the purpose of ascertaining the true meaning of the law."
We could quote numerous opinions of both courts announcing and adhering to that rule of construction or interpretation, but as these express the doctrine so positively and unequivocally we deem it useless. Again, Mr. Sutherland says: "Words and clauses in different parts of a statute must be read in a sense which harmonizes with the subject matter and general purpose of the statute. No clearer statement has been or can be made of the law as to the dominating influence of the intention of a statute in the construction in all its parts than that which is found in Kent's Commentaries: `In the exposition of a statute the intention of the law maker will prevail over the literal sense of the terms, and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion.'" Suth. St. Const., p. 219.
With this rule of construction and the words of the statute before us, what other construction could be given than that the law applies to all territory where prohibition is in force in this State. The language is: "If any person shall engage in or pursue the occupation or business of selling intoxicating liquors in any county, etc., in which the sale of intoxicating liquorshas been or shall hereafter be prohibited," etc. Again, in section 4 it is emphasized that the law is to apply to territory where prohibition was then in force. It reads: "The inadequacy of the laws of this State to prohibit the unlawful sale of intoxicating liquors in counties, etc., where the sale of intoxicating liquor has been prohibited by law, creates an emergency," etc.
If the Legislature had the authority and power there can be no question of their intention. The wording of the Act is plain and mandatory, and to give any other construction to the language used is impossible. It is not a retroactive or ex post facto law, because it
does not seek to punish men for any offense theretofore committed, but only to punish those who pursue the occupation made penal after the enactment of the law in any territory where prohibition is in force. What provision of the Constitution restrains the Legislature from passing the Act? None we can find. In fact, Judge Davidson, who dissents from this construction of the law, said in his dissenting opinion (127 S.W. Rep., 1049): "There is one other phase of the majority opinion that I desire to notice. The majority opinion is written apparently, if not really, upon the theory that this Act was attacked as being unconstitutional. I do not so understand the question presented," and he holds the Act not violative of the Constitution, but that it did not become effective in any territory where prohibition had theretofore been enacted, but became effective only in such territory as might thereafter adopt prohibition. This holding is in direct conflict with the specific terms of the Act, and the clearly expressed intention of the Legislature. And if the Constitution does not inhibit the Legislature, what power is there that can do so? Our presiding judge then held and now holds that the Legislature is powerless to pass any law to aid in the enforcement of the local option or prohibition law in territory which has heretofore adopted it, unless they should hold an election after the passage of such remedial legislation, and to this we do not agree, and do not think the decisions of this court require such construction. The leading case upon which it is sought to build up such a theory is Dawson v. State, 25 Texas Crim. App., 670. The question decided in that case, and the only one passed on, is that Erath County having adopted local option, when, by the terms of the law, counties were permitted to vote on the question whether or not the sale of intoxicating liquors should be prohibited every year. Subsequent to its adoption, the Legislature changed the law so that this question could be voted on only once in every two years. The court held that when Erath County voted to adopt the law, it had the right to repeal it at the end of one year. The question of whether the sale of intoxicating liquors shall be prohibited is left by the Constitution to a vote of the people of any given territory, and the court says in the Dawson case: "If the power exists in the Legislature to deprive the locality of the right to have another election for the period of two years, the same right exists to deprive them of such right for ten, twenty or other number of years, and thus the Legislature would fasten upon the locality a law which they adopted as an experiment for a short period of time, and from the practical operation of which, during that period, they may have become convinced should be repealed, never imaging when they voted upon the issue, that the Legislature would, or could, continue the law in operation in opposition to the will of a majority of the qualified voters of the locality." This is in consonance with the Constitution, which reads:
"Art. 16, sec. 20. The Legislature shall at its first session enact a law whereby the qualified voters of any county, justice precinct, town, city (or such other subdivision of a county as may be designated by the Commissioners' Court), may by a majority vote determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."
Under this, what is it the people of the given territory are to determine? It is whether the sale of intoxicating liquors shall be prohibited. And the learned judge in the Dawson case, supra, was right in saying that this question could not be taken away from the people of the given territory, and the legislative will substituted in lieu thereof. But what else are the people of the territory to determine? Nothing more and nothing less other than "shall the sale of intoxicating liquors be prohibited?"
We are aware that under the authority of the Dawson case there has grown up in the decisions of this State the doctrine that the penalty for making a single sale of intoxicating liquors can not be changed. (See Robinson v. State, 26 Texas Crim. App., 82; Lawhon v. State, 26 Texas Crim. App., 101; Ex parte Bains,39 Tex. Crim. 62, and Lewis v. State, 58 Tex. Crim. 351, 127 S.W. Rep., 808.)
The doctrine announced in the case of Ex parte Bains,39 Tex. Crim. 62, above referred to, which attempted to broaden the scope of the decisions in Dawson v. State, and Robinson v. State, supra, was specifically overruled in Snearley v. State,40 Tex. Crim. 507. The rule in the Snearley case has been adhered to by our court since that date, and was announced and maintained in vigorous terms by a majority of the court in the Fitch case, 58 Tex.Crim. Rep., 127 S.W. Rep., 1040 — the same men who also decided the Lewis case hereinbefore referred to. Without discussing the rule laid down in the Lewis case, that for a single sale, the Legislature has no power to alter the penalty (for it is not involved in this case) further than it is sought to broaden its scope and be held as authority that the Legislature can adopt no remedial legislation in territory where local option has already been adopted, no matter how flagrant the evil, and to which as we have hereinbefore stated we do not give our assent, we will take a retrospective view of legislation on this question.
When the law was first adopted, in 1876, the only thing made penal was a sale of intoxicating liquors, and each sale was a separate violation of the law. Since that day many evils have arisen, the ingenuity of man has devised many means for violation of the law. At first the law provided that liquor might be sold on the prescription of a physician. An evil apparently grew up out of that provision, and since then a limitation has been placed on physicians in giving prescriptions, and it is made a misdemeanor for a physician to give a prescription unless a person is actually sick and in need of the
stimulant. (Penal Code, art. 405.) This has been enforced in counties where prohibition has theretofore been adopted, as well as those adopting it subsequent to its enactment. Art. 404 provides that the prescription must be marked "cancelled," and the liquor shall not be drunk on the premises, and a violation of the provision is made punishable as a misdemeanor. This, too, has been applied to all prohibition territory.
Article 403, Penal Code, provides that but one sale can be made on any prescription, and the person selling is not only required to mark it "cancelled," but he is also required to make a report and file the prescriptions with the proper official.
Under the law as first adopted, and before the adoption of article 407 of the Penal Code, the rule of decision was that repeal of the local option law annulled a conviction for violation of the law pending on appeal. Under article 407, it is held that repeal of the law does not affect a prosecution, and one who has violated the law may still be punished notwithstanding such appeal, clearly and unequivocally engrafting a new provision on the law.
In article 406 is adopted what is known as the "blind tiger Act," enforcing a more severe penalty than for a simple sale. This has been applied in all counties regardless of when the law was adopted.
It is also provided that when there is posted up a United States interval revenue liquor or malt license, it shall be prima facie proof. In Floeck v. State, 34 Tex.Crim. Rep., this is held not in violation of the Constitution, and it is enforced in all counties regardless of when prohibition was adopted.
The Act levying an occupation tax on all express companies delivering and accepting pay for "C.O.D." liquor shipments in local option territory has been enforced in all counties where prohibition had been adopted, regardless of date of its adoption. In Craddock Co. v. Wells-Fargo Express Co., 125 S.W. Rep., 59, our courts held: "It is, we think, public history, that a custom had grown up in the State, for dealers in intoxicating liquors, to ship packages of the same by express to counties and localities in which local option was in force consigned to fictitious persons or to persons who had not ordered the same, and then write to some person in such local option territory to call at the express office and get the package and pay the charges thereon. The express company would then, upon request, deliver the package and collect the charges, and return the money to the dealer. This practice had the effect of defeating prohibition in local option territory. It was the object of the Legislature to prohibit or at least regulate this custom. This, in our opinion, the Legislature had authority to do. San Antonio A.P. Ry. Co. v. State, 79 Tex. 264, 14 S.W. 1063. It had authority to abrogate the C.O.D. feature of the liquor traffic, or to impose any burden thereon which tended to prevent the evasion of the local option statutes in counties or districts in which local option had been adopted. Higgins v.
Rinker, 47 Tex. 393; Pleuler v. State, 11 Neb., 547,10 N.W. 488; Ex parte Dupree, 101 Tex. 150, 105 S.W. Rep., 493; Joliff v. State, 53 Tex.Crim. Rep., 109 S.W. 176."
It is difficult for us to conceive why an express company can be punished for pursuing the occupation of delivering C.O.D. shipments of intoxicating liquor without having paid the tax, and yet the law against an individual who pursues the "occupation of selling" intoxicating liquors in the same territory can not and must not be enforced.
The law providing that in territory where local option is in force, upon a proper showing, the district judge may issue a writ of injunction restraining a person from selling intoxicating liquors in violation of the law, and to punish for contempt of its order, has been sustained by the Supreme Court and this court, and applied to all counties where prohibition is in force.
The Act of the Twenty-ninth Legislature, prohibiting a person pursuing the occupation of storing liquors for others in prohibition territory, to permit such liquors to be drunk on the premises, has been sustained, and applied to all counties, and this having been the policy of our law since the adoption of the provision of the Constitution, we can not get our consent to hold, that while all these other amendatory and remedial laws have been put in force in local option territory, and yet this statute which seeks to punish the occupation of pursuing the business of selling intoxicating liquors does not apply only in such territory as may hereafter adopt local option. To hold that when the citizenship of any given territory shall prohibit the sale of intoxicating liquors by a majority vote, a right guaranteed to them under the Constitution, if the avarice or greed of man shall cause them to devise or discover some means whereby the provisions of the law may be evaded, and that the Legislature is powerless to adopt remedial measures or adopt any Act that will effectuate the enforcement of the law, is to us contrary to all rules of law. If that is to be the rule, why is it not also true that if when a local option election is held and a county votes against the adoption of the law and in favor of licensing the sale of intoxicating liquors that the license laws then in force are not construed a part of the law, and the Legislature powerless to adopt any corrective or remedial measures or to alter or amend the license law that will become effective in those counties that voted in favor of licensing the sale of intoxicating liquors, until they shall again vote on the law? This has never been held to be the law, and yet the principle is the same. We will not cite other authorities, but simply refer to Fitch v. State, supra, and authorities there cited by the majority of the court.
Our excuse for writing thus at length is that our presiding judge has again written an opinion in which he seeks to overrule the Fitch case, and not concurring in his opinion, we thought it best to set out our views at some length.
We have carefully considered all the grounds contained in the motion for a new trial, and finding no reversible error the judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, dissents.