Snearley v. State

52 S.W. 547, 40 Tex. Crim. 507, 1899 Tex. Crim. App. LEXIS 80

Opinions

Appellant was convicted in the County Court of Clay County for selling intoxicating liquors in a local option district without first having paid an occupation tax as required by law.

Appellant, in his first assignment of errors, urges that the indictment does not charge any offense against the laws of this State. The indictment is as follows: "That Norman Snearly, on or about the 17th day of March, 1898, and anterior to the presentment of the indictment, in the county of Clay and State of Texas, after an election had been held in said county by the qualified voters thereof, in accordance with law, to determine whether or not the sale of intoxicating liquors should be prohibited in said county, and said election had resulted in favor of prohibition in said county, and the Commissioners Court of said county had duly made, passed, and entered its order declaring the result of such election, and prohibiting the sale of intoxicating liquors within said county as required by law, and had caused said order to be published in the manner and form, and for the length of time, required by law, did unlawfully engage in, pursue, and follow the occupation of selling spirituous, vinous, and malt liquors and medicated bitters, the said occupation being then and there taxable by law, without first obtaining a license therefor; and the taxes then and there due by him to the said State upon said occupation amounted to two hundred dollars; and the taxes then and there due by him to said county upon said occupation amounted to one hundred dollars; the said taxes due by him to said county having been theretofore duly levied by the Commissioners Court of said Clay County at its February term, A.D. 1898, — against the peace and dignity of the State." The Twenty-fifth Legislature enacted the following law: "Art. 5060a. Hereafter there shall be collected from every person, firm, corporation, or association of persons, selling spirituous, vinous or malt liquors or medicated bitters, capable of producing intoxication, in this State, not located in any county, subdivision of a county, justice precinct, city or town, where local option is in force under the laws of Texas, an annual tax of $300 on each separate establishment, as follows: For selling such liquors or medicated bitters in quantities of one gallon or less than one gallon $300; for selling such liquors or medicated bitters in quantities of one gallon or more than one gallon $300; provided that in selling one gallon the same may be made of different liquors in unbroken packages aggregating not less than one gallon; for selling malt liquors exclusively, $50. And there shall be collected from every person, firm, corporation, or association of persons, for every separate establishment, selling such liquors or medicated bitters within this State and located within a county, subdivision of a county, justice precinct, town or city, in which local option is in force under the laws, the sum of $200, provided the same shall not be sold in such locality except on prescription and in compliance with the laws governing sales in such localities," etc. Laws 1897, p. 223. It will he seen that the indictment herein is drawn under this article of the Acts of the Twenty-fifth Legislature. The Acts of the Twenty-fifth Legislature went into effect on Auqust 20, 1897. The Commissioners Court of Clay County ordered an election for said county on local option, and the election was held under said order on August 3, 1897. The result of said election was declared on August 18th, and publication of said order was made for four weeks, after which local option was in force. We have heretofore held that, until the completion of the publication of the order declaring the result of the election in favor of local option had been made for four consecutive weeks, the law is not in force in the precinct or county attempting to adopt it. This being the case, it clearly appears that the Act of 1897, above alluded to, was in force in Clay County prior to the time that local option went into effect in said county. Aikin v. State, 14, Texas Crim. App., 142. It follows, therefore, that local option having been adopted in Clay County subsequent to the time that the occupation tax with reference to local option districts went into effect, the people were apprised of the occupation tax being in force prior to the time that local option went into effect, and hence the occupation tax would be in force in Clay County.

This is not in contravention of the decision of this court in Ex Parte Bains, 39 Texas Criminal Reports, 62, for that decision was rendered upon the theory that the occupation tax complained of by appellant was an innovation and an addition upon the local option law already adopted by the people. In the case at bar the local option law had not gone into effect, as above shown, and did not until subsequent to the taking effect of the occupation tax. Therefore the reasoning of the Bains Case does not apply. But, be this as it may, we can not and do not agree to the conclusions reached in Ex Parte Bains, supra. Judge Davidson, in delivering the opinion of the court, says: "It is shown that the local option law was in effect in the precinct where the relator is alleged to have violated said law at and prior to the time the act of the Twenty-fifth Legislature went into operation. His first contention is that, the local option law being in force in said precinct, the Legislature could not impose new burdens or obligations upon the people of that precinct, pending the operation of said law. This identical question was before this court in Dawson's Case, 25 Texas Criminal Appeals, 670, and this position was held to be well taken. That decision has been followed in Robinson v. State, 26 Texas Criminal Appeals, 82, and Lawhon v. State, 26 Texas Criminal Appeals, 101. In Dawson's Case the court said: 'Our view is that the mandatory Act of April 1, 1887, in each and all of its provisions, was intended to, and does, operate only in localities which have adopted since it went into effect, or may hereafter adopt, local option, in accordance therewith, and that such provisions can not and do not, and were not intended to, operate in localities which, prior to their going into effect, had voted upon and adopted the law as it was prior to such mandatory provisions. Any other view, it seems to us, would invade the constitutional rights of the people of such localities, and foist upon them a law which perhaps they never would have adopted; a law with respect to which, their opinion had never been consulted or ascertained; a law enacted, not by them, but by the Legislature without constitutional right.' " It will be seen front this excerpt from Dawson v. State, and an examination of the other two authorities cited on the question, that these decisions were rendered in cases where an effort was being made to ingraft amendments on the local option law, — upon the old local option law as the same had theretofore been adopted by the respective counties or precincts. To the correctness of this we assent, and the decisions upon the points at issue were clearly within the line of precedents, and in strict consonance with reason, but dissent from the conclusion reached in Ex Parte Bains. As in that case, the relator is attempting to get rid of a tax passed by the Legislature, on the theory that said tax is an innovation upon the local option law. We can not agree with this contention. We think the Legislature has a right to pass laws requiring parties in local option districts to pay a certain tax for the privilege of selling intoxicating liquors, not in violation of law, as counsel for appellant in this case seems to contend; but the Legislature has the right to levy a tax upon the sale of intoxicating liquors as indicated, under the provisions of the law in question, where said sales are made in strict conformity to the local option law. Why not? Such a provision on the part of the Legislature is no amendment of the local option law. It neither takes from nor adds to said local option law. It nowhere increases or diminishes its penalties, adds to or decreases its privileges, not does it change a single, solitary provision of the local option law. Would it be seriously contended that, if the United States were to increase the revenue license tax for the retail of intoxicating liquors, the people of the locality where the local option law was in force could complain that this was an amendment of the local option law, and therefore invalid? We think not. Now we understand that the analogies do not hold altogether between the Federal and State governments; yet we say, in this particular instance, they do hold, and that the State would have equal right to levy a tax or increase the tax as the Federal government. It has been justly stated "that in case of a conflict between two parts of provisions, which is not so radical as to require that one or the other shall be absolutely disregarded, the court will endeavor to so modify the earlier provision as to bring it in harmony and consistency with the latter. But anyone who contends that the article or section of the Code is void for repugnance to some other must assume the burden of showing the repugnance beyond all doubt, and also that the law so abrogated is older in date than the repealed statute." Black Interp. Laws, p. 364. Again, Mr. Black, in his work on Intoxicating Liquors (section 101), says: "Sometimes, however, a local option law contains an express saving of vested rights; and this, it is held, embraces previously acquired rights to sell by virtue of licenses already taken out and paid for, but comprehends no right either to obtain a new license or to sell without a license, whether on the part of natural persons or corporations." It therefore follows from the above that, since the courts can construe the provision in question in such way as to give effect to both of same, it is the duty of the court to so do; and, as indicated in the last quotation, "the passage of the local option law comprehends no right, either to obtain a new license or to sell without license, whether on the part of natural persons or corporations." Again, in the case of Brown. v. State, 4 Southeastern Reporter, 256, Justice Bradford, delivering the opinion of the Georgia court, says that he thinks the local option law in a precinct, where it was adopted in Georgia, "fully prevents the manufacture and sale in the county of Dekalb of intoxicating liquors other than domestic wines. The act does not interfere with the manufacture and sale of domestic wines, and leaves it exactly where it stood under the law prior to the passage and adoption of this act. But, under the general law, before one could retail domestic wines in quantities less than one quart, he would have to obtain a license for that purpose from the ordinary of the county, or some person or body duly authorized to issue licenses. It will be borne in mind, however, that this indictment does not charge complainant in error with having retailed domestic wines in quantities less than a quart without license. The charge is simply that he retailed it, without saying whether he did so with or without license. The court below was of the opinion that this local option act, as applied to Dekalb County, took from all parties the authority to issue licenses in that county to retail domestic wines in less quantities than one quart. We do not think so. We think the same authority exists now as existed before the passage of this act." It will be seen from this quotation that, although Dekalb County had a right to pass, and had really passed, local option, still the authorities had the power to levy a tax, and make the party selling domestic wines pay same. We think this decision is in. point on this question.

"Furthermore, repeals by implication are not favored, and will not be decreed unless it is manifest that the Legislature so intended. As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the subject, it is but reasonable to conclude that, in passing a statute, it was not intended to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and following necessarily from the language used, unless the later act fully embrace the subject matter of the earlier, or unless the reason for the earlier act is, beyond peradventure, removed. Hence every effort must be used to make all acts stand, and, if by any reasonable construction, they can be reconciled, the latter act will not operate as a repeal of the earlier act. It is frequently found that the conflict between the two statutes is apparent only, as their objects are different, and when the language of each is restricted to its own object, they run in parrallel lines, without meeting, or the later act can be construed as a modification of or exception to the earlier one, thus avoiding all conflict between the two." "To effect the repeal of an earlier act, the subject thereof must be treated and both statutes enacted to accomplish the same object." 23 Am. and Eng. Enc. of Law, p. 490 et seq.; United States v. Claflin, 97 U.S. 547; Stockwell v. United States, 13 Wall., 531; Coghill v. State, 37 Ind. 111; Cate v. State, 3 Sneed, 120. An inspection of the two laws before us (that is to say, an inspection of the local option law and its object and an inspection of the license law and its object) clearly shows that they have a different subject and a different object. The local option law was passed by the Legislature in order that localities might have the privilege of preventing the sale of intoxicating liquors, save and except for certain specific purposes. The license law, as passed by the Twenty-fifth Legislature, had for its subject and object the levying of a tax upon the sale of intoxicating liquors, where the same were sold subordinate to and under the strict provisions of the local option law. We can not see any possible conflict between these two statutes, nor do we think that the passage of the local option law abrogates the right of the Legislature to subsequently pass a law taxing the sale of intoxicants in the local option precinct. The right of taxation is inherent in the body politic, and to say that the same is repealed by implication is to do violence both to the spirit and letter of the Constitution, and run counter to the well known rules of statutory construction. In the case of Stone v. Hill, 72 Tex. 540 [72 Tex. 540], Judge Gaines, delivering the opinion of the court, said: "But, in construing a statute, the intention of the Legislature is to be considered, and when that intention is evident, though not consistent with the letter of the law, and the literal construction is claimed to create confusion and to work irreparable wrong, the intention should govern." To give the statute under consideration a construction whereby it would be construed as unconstitutional is violative of the local option law, which is guarantied to) the people of Texas; would work irreparable wrong to the State, in depriving the State of a large amount of revenue; and would be tantamount to saying that, when the Legislature guarantied the different localities the right to pass local option, the act according them that right abrogates the right of taxation. We can not agree to this contention, and we hold that the act of the Twenty-fifth Legislature in levying a tax in local option districts upon parties who sell liquor under the provisions of the local option law is not in violation of the local option law itself, but is within the clear light and purview of the Constitution of this State, and within the legitimate scope and power of the Legislature. See Duncan v. Taylor,63 Tex. 646.

It follows from the foregoing that whether local option is adopted before or after the passage of the law of 1897, as above indicated, a party, before selling whisky or other intoxicants under the provisions of the local option law, must first procure a license for said sale as provided in the law of 1897. We believe we have heretofore disposed of all the assignments of error, except the fourth and fifth, and we find no error in these assignments. The judgment is affirmed.

Affirmed.