Ex Parte Townsend , 64 Tex. Crim. 350 ( 1911 )

Appellant is held in custody charged with selling nonintoxicating liquors without procuring license as required by the statute. Judge Harper granted the writ of habeas corpus, making it returnable before this court. The case has been submitted on brief and oral argument by both sides. Counsel for applicant have filed brief and argument which fully, satisfactorily and conclusively sustain the contention that the Act under which he is arrested is unconstitutional and void. To go into the questions involved would be but to review and practically rewrite what has already been written by applicant's attorneys. In view of the fact that they have so ably and exhaustively discussed these questions, I content myself with adopting said brief and argument as my dissenting opinion.

The brief was prepared by and is the work of the following named attorneys: Mr. J.B. Bisland, Messrs. Baker, Botts, Parker Garwood; Messrs. McGregor Gaines, and Mr. Jesse Andrews, and is as follows, to wit: "On and prior to October __, 1911, the relator, W.H. Townsend, was, and had been engaged in the grocery business, carrying a full line of staple and fancy groceries and supplying a general grocery trade, and as a part of the grocery stock and in connection therewith he sold and kept for sale and engaged in the business of selling soda water, "Hiawatha," which is a nonintoxicating malt liquor, and other soft drinks, in the town of Orange, in the county of Orange, in the State of Texas, and as such groceryman he paid all necessary merchant's taxes, licenses, etc., other than the licenses and taxes which it is set out in the statement of facts in this case that he had not paid.

"That on the ____ day of October, 1911, a complaint and information was issued against relator charging that he had not procured a license to engage in the business such as is spoken of in the Act of the Thirty-First Legislature, entitled "An Act to levy an occupation tax on all dealers in nonintoxicating malt liquors," etc., and had not paid the two thousand ($2,000) dollar tax to the State, nor the one thousand ($1,000) dollar tax to the county, which the Commissioners Court of that county had sought to levy under the assumed authority of that Act. The complaint and information were regular in form.

"The relator presented his petition for habeas corpus to the county judge of Orange County, which was denied for the reason indorsed on said petition, whereupon relator presented his petition to this court and is now before this court and says that his arrest and restraint are illegal; that he should be discharged from custody because there is no valid or constitutional law of this State that warrants the information or excuses the confinement. The question therefore presented by the application is the constitutionality of the above Act of the Thirty-First Legislature.

"The relator asserts that the Act is unconstitutional on two separate and distinct grounds. First, that the amount of the tax sought to be imposed by it is prohibitory and that therefore on account of the Act the citizens of the State are prevented altogether from engaging in the pursuit of a lawful business; and second, that the Act has the effect to make the tax on the pursuit of the business named in it unequal and not uniform, persons in those parts of the State where the Robertson-Fitzhugh law is in effect having to pay one amount of tax for the sale of nonintoxicating malt liquors and persons in the other parts of the State having to pay a different tax; and we shall proceed with the discussion of the constitutionality of the Act in this order.

"Proposition. The Act is unconstitutional because if given effect it would prevent the citizens of the State altogether from engaging in the pursuit of a lawful and harmless occupation.

"Statement. That such was indeed the purpose of the Legislature is shown by the subsequent amendment of the Act at the special session, by which the law which had just been passed was so changed, that separate license and another tax was required for each place in the county where the occupation was pursued.

"Authorities. Tiedeman's Limitations of Police Power, section 102; Freund, Police Power, sections 492, 493, 494, 498, secs. 62 and 223; Hirshfield v. City of Dallas, 15 S.W. 124; Owens v. State, 53 Tex.Crim. Rep., 112 S.W. 1075; Ex parte Woods, 52 Tex.Crim. Rep., 108 S.W. 1171; San Antonio A.P. Ry. Co. v. Wilson, 1 Texas Civ. App. 675[1 Tex. Civ. App. 675],19 S.W. 910; Mugler v. Kansas, 123 U.S. 661; Lochner v. New York, 198 U.S. 45; In re Jacobs, 98 New York, 98; Allgeyer v. Louisiana, 165 U.S. 578; People v. Marx, 99 New York, 377; People v. Warden, 51 N.E. Rep., 1006; Railway Co. v. City of Jacksonville, 67 Ill. 37; Ritchie v. The People, 40 N.E. Rep., 454; People v. Steele, 83 N.E. 236; Wyeth v. Thomas, 83 N.E. Rep., 925; State v. Redmon, 114 N.W. Rep., 137; Bonnett v. Vallier, 116 N.W. Rep., 885; State v. Smith, 84 P. 851; Morton v. Macon, 50 L.R.A., 485; State v. Williams,61 S.E. 61; State v. Ashbrook, 55 S.W. Rep., 627.

"The question presented by this application, viz.: The right of a citizen to be protected by the guarantee of a written Constitution in the unmolested pursuit of an occupation that is not harmful to his fellow man, is one of transcendental importance, and if, as we think, the authorities clearly show the Legislature has by the Act referred to, overstepped the limits of the powers intrusted to it by the people, and has by this Act set a precedent which if allowed to go unchallenged would be subversive of the foundations of civil liberty, then, though it be the one hundredth Act of the Legislature on the same subject rather than the second this court could render no higher service to the people to whom it owes its being; than to again exercise the powers vested in it as one of the three coordinate departments of government, to prevent such a principle from finding a lodgement in the jurisprudence of this State. The question is not whether the relator shall be permitted to sell nonintoxicating malt liquors, but it is whether the majority that happens to be dominant at the time, can suppress and destroy the business of a citizen. We think that it has rarely happened that a question of more importance to the liberties of the people has been before this court for decision. Written Constitutions would be meaningless or their efficacy would be to a large extent impaired if the construction of them was left entirely to the law making body. Howevermuch civil liberty may owe its existence to the Constitutions of the several States and of the United States, these safeguards of the peoples' rights would amount to but little if there were not the courts to stand guard over the rights secured by them and strike down all legislation that contravenes them. It is to the courts alone that the citizen can turn where, as in this case, the Legislature has undertaken to exercise a power not entrusted by the people to it. In declaring a law unconstitutional on the ground that it deprives a certain class of citizens of the right to freely prosecute their chosen occupation, the Supreme Court of Illinois in the case of Richie v. People, 40 N.E. 454, a case that we will have occasion to refer to later on, said, in quoting from In re Jacobs, 98 N.Y. 98 : "In reaching this conclusion (that the law was unconstitutional and void) we have not been unmindful of the power which courts possess to condemn legislative Acts which are in conflict with the supreme law, should be exercised with great caution and even with reluctance. But, as said by Chancellor Kent (Comm., 450): ``It is only by the free exercise of this power that courts of justice are enabled to repel assaults and to protect every part of the government and every member of the community from undue and destructive innovations upon their charter rights.'"

Mr. Justice Harlan in Mugler v. Kansas, 123 U.S. 661, expresses the thought in this language: "There are of necessity limits beyond which legislation can not rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, Sinking Fund Cases, 99 U.S. 700, 718, the courts must obey the Constitution rather than the law making department of government, and must upon their own responsibility determine whether in any particular case these limits have been passed. ``To what purpose,' it was said in Marbury v. Madison, 1 Cranch, 137, 176, ``are powers limited and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restricted? The distinction between a government with limited and unlimited powers, is abolished, if these limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation."

"``There may be autocracy of the sovereign,' says the Supreme Court of Wisconsin, in the case of State v. Redmon, supra, ``whether the term is used in a personal sense or as representing the people in the aggregate acting through their representatives. One might be quite as dangerous as the other without the restraints of a written Constitution and an independent and courageous judiciary to stand guard at the boundaries thereof.

"With our system, the danger of destruction or impairment of the inherent system, by well meant but improvident legislation is too remote to be disturbing as to the future, for as is said in effect in Marbury v. Madison, ``No enactment is controlling if the tribunal created by the Constitution to pass upon its character can not reasonably escape the conclusion that the paramount law condemns it.'

"All of the cases quoted from presented conditions of fact analogous to the case at bar. In the case of State v. Williams, supra, a case growing out of an indictment for the mere bringing into the county of more than one-half gallon of spirituous, vinous or malt liquor, the Supreme Court of North Carolina, in an opinion declaring the Act unconstitutional, said: It is the right of the citizen when called to the bar of the court, to appeal to the Constitution and demand that the court declare whether the statute which he is charged with violating, be ``the law of the land.' To make this right of any value or protection to the citizen it must be the duty of the court to declare its judgment thereon. To deny this is to keep the promise to the ear and break it to the hope — to make of none effect the declaration that ``ours is a government of law, and not of men.' ``It will be an evil day for American liberty, if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violations of the principles of the Constitution.' Harlan, J., in Downes v. Bidwell, 182 U.S. 382, 21 Sup. Ct., 823, 45 L.Ed., 1008. . . . The people in the exercise of their political sovereignty established the government, delegated to it certain enumerated powers, assigned to it appropriate functions, established departments, and assigned to them appropriate duties and powers, imposed such limitations as experience had taught to be necessary for the preservation of liberty and, to the end that their government should not by construction, implication or otherwise deprive them of unenumerated, but, ``inalienable rights,' declared: ``This enumeration of rights shall not be construed to impair or deny others retained by the people, and all powers not herein delegated remain with the people.' Article 1, paragraph 37. This court in Bayard v. Singleton, 1 N.C. 5 (1787), after most careful consideration ``and with great deliberation and firmness' unanimously declared that no Act which the Legislature could pass could, by any means, repeal or alter the Constitution. However much we may desire to sustain the Acts of the Legislature as a coordinate department of the government, we may not, without being recreant to the duty imposed upon us and the rights of the citizen refuse to decide firmly and fearlessly the issue which he makes with the government."

"The provision of the fundamental law of which this Act is violative, is that in the State Constitution which provides that no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due process of the law of the land (section 19, art. 1), and that of the Federal Constitution which provides that no State can deprive any person of life, liberty or property without due process of law. (Fourteenth Amendment.)

"That the right to pursue a lawful occupation is one of the liberties of a citizen which are protected by this constitutional safeguard has so often been declared in the decisions of the courts of the country, that citation of authorities for this position would hardly seem necessary. The scope of these rights can not be better expressed in language than in the quotations from the authorities contained in the able and exhaustive opinion of Judge Alton B. Parker, in the case of People v. Warden of City Prison, supra, to which we shall have occasion to refer later on in this argument. This case involved the question of the constitutionality of an Act prohibiting persons in the State of New York from engaging in the business of brokerage in passenger tickets. The Act was held unconstitutional. The language referred to is as follows: ``The word "liberty" as employed in the provision of the Constitution quoted, was considered by this court in Re Jacobs, 98 N.Y. 98, in a masterful opinion by Judge Earl. He said (pages 106, 107): "So, too, one may be deprived of his liberty and his constitutional rights thereto violated without the actual imprisonment or restraint of his person. ``Liberty' in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws as may be passed in the exercise by the Legislature of the police power, which will be noticed later), are infringements upon his fundamental rights of liberty, which are under constitutional protection."'

"In People v. Marx, 99 N.Y. 377, 2 N.E. 29, this court declared unconstitutional a statute that prohibited the manufacture and sale of any substitute for butter or cheese produced from pure, unadulterated milk or cream. Judge Rapallo, speaking for the court, said: ``Among these no proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuits, not injurious to the community, as he may see fit. The term "liberty" as protected by the Constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary to the common welfare.'

"In People v. Gillson, 109 N.Y. 389, 17 N.E. 343, a statute was declared to be unconstitutional which prohibited the sale of any article of food, or offering or attempting to do so, upon any representation or inducement that anything else would be delivered with a prize, premium or reward to the purchaser. Judge Peckham, in delivering the opinion of the court, after considering the statute, said (page 399, 109 N.Y., and page 346, 17 N.E.); ``A liberty to adopt or follow for a livelihood a lawful industrial pursuit, and in a manner not injurious to the community, is certainly infringed upon, limited, perhaps weakened or destroyed, by such legislation.'"

In Ritchie v. People, in which a law declaring that no female should be employed in any factory or workshop more than eight hours in any day, was held unconstitutional, the Supreme Court of Illinois, referring to the Act, said:

"Is the restriction thus imposed an infringement upon the constitutional rights of the manufacturer and the employe? Section 2 of article 2 of the Constitution of Illinois provides ``that no person shall be deprived of life, liberty or property without due process of law.' A number of cases have arisen within recent years in which the courts have had occasion to consider this provision, or one similar to it, and its meaning has been quite clearly defined. The privilege of contracting is both a liberty and property right. Froer v. People, 141 Ill. 171, 31 N.E. Rep., 395. Liberty includes the right to acquire property and that means and includes the right to make and enforce contracts. State v. Loomise, 115 Mo., 307, 22 S.W. Rep., 350. The right to use, buy and sell property and contract in respect thereto, is protected by the Constitution."

"The recognition of the fact that the right to allow a lawful pursuit is included within the constitutional safeguard is expressed by the Supreme Court of Massachusetts in the case of Wyeth v. Thomas, supra, a very recent case (decided this year), as follows: ``The right to enjoy life, liberty and the pursuit of happiness is secured to everyone under the Constitution of Massachusetts. This includes the right to pursue any proper vocation to obtain a livelihood. Substantially the same right is secured also by the Constitution of the United States, which does not permit a State to deprive any person of life, liberty, or property without due process of law. The nature of this right has been stated and illustrated in many cases. Com. v. Strauss, 191 Mass. 545, 78 N.E. Rep., 136, 11 L.R.A. (N.S.), 968; Com. v. Perry, 155 Mass. 117, 28 N.E. 1126, 14 L.R.A., 325, 31 Am. St. Rep., 533; Winthrop v. New England Chocolate Co.,180 Mass. 464, 62 N.E. 969; Austin v. Murray, 16 Pick., 121; Lochner v. New York, 198 U.S. 45, 25 Sup. Ct., 539, 49 L.Ed., 937; Allgeyer v. Louisiana, 165 U.S. 578, 17 Sup. Ct., 427, 41 L.Ed., 832; Yick Wo. v. Hopkins, 118 U.S. 356, 6 Sup. Ct., 1064, 30 L.Ed., 220; Minnesota v. Barber, 136 U.S. 313, 10 Sup. Ct., 862, 34 L.Ed., 455.'

"One may be deprived of his liberty," says the Supreme Court of Washington in the suit of State v. Smith, supra, in which an Act forbidding one to engage in the plumbing business, except under certain restraints was held unconstitutional, quoting from the case of In re Aubrey, 78 Pa., 900: "And his constitutional rights thereto may be violated without actual imprisonment or restraint of his person. ``Liberty' in its broad sense, as understood in this country, means the right not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways to live and work when he will, to earn his livelihood, in any lawful calling or to pursue any lawful trade or avocation. All laws therefore which impair or trammel these rights, which limit him in his choice of a trade or profession, are infringements upon his fundamental rights of liberty which are under constitutional protection.'"

But we need not go beyond the decisions of our own court to find authorities for this question. It is expressly so decided in the case of Owens v. State, 53 Tex.Crim. Rep.,112 S.W. 1075. In that case the language of Judge Snyder, in the case of State v. Goodwill, 33 W. Va. 183, was quoted with approval by Judge Brooks, to wit: "A person living under the protection of this government has the right to adopt and follow any lawful industry, or pursuit, not injurious to the community, which he may see fit."

The "right" here referred to does not mean the right, in the absence of legislative forbiddance, but means the right, notwithstanding the Legislature. It is a privilege and an immunity that rises beyond the power of the Legislature to decide or prevent, it has its foundation in the very corner stone of the government.

The only limitation on the right of the citizen to follow this pursuit, notwithstanding the enactment of the Legislature to the contrary, is that the proper regulation or prohibition of it does not fall within the police power of the Legislature. The question then presented is, Can the prohibition of the sale of nonintoxicating malt liquors reasonably be said to be within the police power of the Legislature? This question we shall undertake to answer presently, but before doing so we desire to call attention to what is clearly not within the police power as by so doing we can arrive at a clearer conception of the pursuit or occupation at which the Act could be legitimately said to be directed. The purpose that we have immediately in mind grows out of the fact that it is sometimes said that the business, or ostensible business, of selling nonintoxicating malt liquor is made and used for a cloak for selling liquors in violation of local option laws. It is said that the sale of nonintoxicating malt liquors in local option territory should be prohibited so as to more effecutally prohibit the sale of intoxicating liquors, and thereby enforce local option laws in local option territory. That the regulation and suppression, if need be, of the sale of intoxicating liquors is within the police power of the State, is of course well settled, and it might be urged that if the permission to sell nonintoxicating liquors militated against the suppression of the liquor traffic, that such permission should be withheld, and the right to withhold it would fall within the police power of the Legislature. Happily, we are not limited to our own deductions from the decisions in general for authority for the proposition that a pursuit otherwise lawful, will not be held to be within the police power merely because it can be or has been unlawfully pursued, but we have decisions of the courts expressly upon the point. It is well recognized, as a principle of the law of police power of Tiedeman in his admirable treatise on the Limitation of the Police Power. We take the liberty to quote this author's discussion on this principle at length: "It is not sufficient that the public sustains harm from a certain trade or employment, as it is conducted by some who are engaged in it. Nor is it sufficient that all remedies for the prevention of the evil prove defective, which fall short of total prohibition. Because many men engaged in the calling persist in so conducting the business that the public suffer, and their actions can not otherwise be effectually controlled, is no justification of a law which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public. In order to prohibit the prosecution of a trade altogether, the injury to the public, which furnishes the justification for such a law, must proceed from the inherent character of the business. Where it is possible to conduct the business without harm to the public, all sorts of police regulations may be instituted, which may tend to suppress the evil. Licenses may be required, the most rigid system of police inspection may be established, and heavy penalties may be imposed for the infractions of the law; but if the business is not inherently harmful, the prosecution of it can not rightfully be prohibited to one who will conduct the business in a proper and circumspect manner. Such an one would ``be deprived of his liberty' without due process of law." . . .

Again, on page 293, it is said: "As has already been stated, the police regulation of an employment may extend to any length that may be necessary for the prevention and suppression of fraud in its pursuit, but an honest man can not be denied the privilege of conducting the business in an honest and lawful manner because dishonest men are in the habit of practicing gross and unsuccessful frauds upon those with whom they have dealings. If it were a justifiable ground for abolishing any business, many important, perhaps some of the most beneficial, employments and professions could be properly prohibited."

"It will be observed that the court says that it is not sufficient that the trade or employment as it is conducted bysome causes public harm, and that because many men engaged in a calling persist in so conducting it that the public suffer is no justification of a law ``which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public.' Further, that the injury to the public which furnishes the justification for such a law ``must proceed from the inherent character of the business.' Where it is possible to conduct the business without harm to the public, this should be accomplished by police regulations. It is not sufficient, therefore, to justify a law of this kind, that there may be those who, under the guise of selling this harmless drink, make of it a means of selling intoxicating liquor and doing that which the law forbids. In the language of the author, ``such a propensity on the part of those unlawfully disposed, offers no justification for prohibiting the man from conducting the business who intends to do so honestly.' That the sale of nonintoxicating beverages is harmless, is apparent. Indeed, it is admitted. The language of the author, therefore, is striking when he says:

"The justification for such a law must proceed from the inherent character of the business."

Judge Parker, in the case referred to (People v. Warden), referring to a similar contention that had been made for upholding the act, the constitutionality of which was then before the court, said: "Nor can the contention be tolerated that because there have been in times past, dishonest persons engaged in the ticket brokerage business, with the result that frauds have been perpetrated on both travelers and transportation companies, therefore the Legislature can deprive every citizen engaged therein of the ``liberty' to further conduct such business. Stringent rules undoubtedly may be enacted to punish those who are guilty of dishonest practice in the conduct of such a business, and the machinery of the law put in motion for its rigorous enforcement; but to cut up, root and branch a business that may be honestly conducted, to the convenience of the public and the profit of the persons engaged in it, is beyond legislative power.

"If the law were otherwise, no trade, business or profession could escape destruction at the hands of the Legislature if a situation should arise that would stimulate it to exercise its power, from every field of endeavor can be found men that seek profit by fraudulent processes. Transportation tickets have been forged, it is said; so have notes, checks and bank bills. Railroad companies are no more bound to honor forged tickets than the alleged maker of a forged note is bound to pay it. An innocent person who suffers by parting with his money on a forged ticket has his remedy against the vendor just the same as has the bank that discounts a forged note. Such instances might be multiplied, but it would serve no good purpose, for it is well known that no business can be suggested through which the innocent parties may not be occasionally victimized. But, because of that fact, honest men can not be prevented from engaging in their chosen occupations."

As suggested by Judge Parker, stringent rules not only may be, but have been, enacted to punish those guilty of selling intoxicating liquor in local option territory. It is to be presumed that the infringement of such laws would prevent the dishonest practices referred to, but be that as it may, honestmen, as stated by Judge Parker, can not because of that fact beprevented from engaging in their chosen occupations.

"But we are even more fortunate, for the differentiation between the legitimate and the illegitimate conduct of a business in its relation to the police power that we have pointed out above was expressly recognized by this court in the case of Hirshfield v. City of Dallas, 15 S.W. Rep., 124. The court, referring to the abuses which might flow from the occupation of a railway ticket broker or scalper, quoted with approval the language of Tiedeman, in which the author criticises the decision of the court of Pennsylvania, holding a law constitutional which prohibited the sale of railroad tickets except by the agents of a railway company, the court having committed the error of basing its decision on the ground that such a law would have a tendency to prevent fraud upon the railroads and upon purchasers. This court held that, however much the occupation might be abused by dishonest men, it was not injurious to the public per se, and that this being the only consideration, and the tax being prohibitive, the regulation could not be upheld as an exertion of the police power, and was void.

"With any confusion of ideas that might exist removed, that this Act might be within the police power of the State on account of the fact that the business taxed by it might be dishonestly conducted we approach now a consideration of the question propounded, viz., whether the prohibition of the business of selling nonintoxicating malt liquors is within the police powers of the Legislature. Every consideration of the question must be made from the standpoint that the business is honestly conducted, and what we shall have to say hereafter will be upon the assumption that the business is viewed in this light. By police power is meant the authority of the Legislature to enact those laws which it deems essential for the safety, health, morals or convenience of the people. Whether the Act is directed towards the accomplishment of one of these ends or whether it bears any reasonable relation toward the accomplishment of such an end, are questions for the judiciary to determine. Whether it is wise or expedient, assuming that its legitimate purpose is to accomplish one of these ends, is for the Legislature to determine. In other words, what is within the police power is a judicial question. The manner in which this power shall be exerted, is for legislative determination. It would seem that we should have to go no further than the Act itself to ascertain that even the Legislature did not construe it to be an attempt to exert police power. It carries with it no regulation of the business to which it refers nor does it provide for any safeguard or protection from an illegitimate or unlawful pursuit of the business. It merely lays the tax and does nothing more. The Act of the Thirty-First Legislature differs as to its general form in no respect from that of the Thirtieth Legislature, and the latter Act was expressly decided by Judge Ramsey not to be a police regulation.

But assuming that it was the intention of the Legislature, notwithstanding the form of the Act to make of it the means of prohibiting altogether the sale of nonintoxicating malt liquors, can the Act be upheld as an exertion of the police power?

It was just stated the expediency of legislating on a given subject is a matter for the Legislature to determine, but the power of the Legislature to so legislate is a question to be determined by the courts. If the mere fact that the Legislature by assuming to exercise a given power precluded courts from an inquiry into the existence of the power, then the Legislature would be its own judge of the limits of its power, and the rights that are secured by written constitution would be lost.

"It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy and the Legislatures of the State would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, health or safety of the people, such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretense — become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises, Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. This is not substituting the judgment of the court for that of the Legislature. If the Act be within the power of the State, it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police powers of the State? and that question must be answered by the court."

"This was the language of Mr. Justice Peckham in delivering the opinion in the case of Lochner v. New York.

"In re Aubry, 78 P. 900, the Supreme Court of Washington says: ``It may be stated as a general principle of law that it is the province of the Legislature to determine whether the conditions exist which warrant the exercise of this power; but the question what are the subjects of its exercise is clearly a judicial question.'

"In no case is there a clearer enunciation of the principles upon which a just decision of this application rests, than in the case of In re Jacobs, 98 N.Y. 98, a case where a law entitled: ``An Act to improve the public health by prohibiting the manufacture of cigars, and the preparation of tobacco in any form in tenement houses in certain cases,' etc., was held unconstitutional, upon the point that it is ultimately a question for the determination of the court whether the Act is truly one within the police powers, the court says: ``These citations are sufficient to show that the police power is not without limitations, and that in its exercise the Legislature must respect the great fundamental rights guaranteed by the Constitution. If this were otherwise the power of the Legislature would be practically without limitation. In the assumed exercise of the police power in the interest of the health, the welfare, or the safety of the public, every right of the citizen might be invaded and every constitutional barrier swept away.

"Generally it is for the Legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property can not be arbitrarily invaded and the determination of the Legislature is not final or conclusive. If it passes an Act ostensibly for the public health, and thereby destroys or takes away the property of a citizen or interferes with his personal liberty, then it is for the courts to scrutinize the Act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the Legislature may in the title to the Act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law."

The Supreme Court of Illinois in the case of People v. Steel, on the same point, says (83 N.E. Rep., 236): "While the legislation may determine when the exigency exists for the exercise of the police power, it is for the courts to determine what are the subjects for the exercise of this power, and it is necessary that the Act should have some reasonable relation to the subject of such power."

"The question is then before this court, ``Is the prohibition of the occupation of selling nonintoxicating malt liquors which are admitted to be harmless and not deleterious to health, within the scope of the police power? In order that an Act otherwise unconstitutional should be sustained upon this ground, it must appear not only that it was passed for the purpose of conserving the safety, health, morals or convenience of the people, but also that it bear some reasonable relation towards the accomplishment of this purpose. ``The mere assertion,' says Mr. Justice Peckham in the opinion quoted from, ``that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The Act must have a more direct relation as a means to an end, and the end itself must be appropriate and legitimate before an Act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.'"

Assuming that the business is honestly conducted, in what way can it be said that the prohibition of the sale of a beverage that is harmless and not deleterious to health is conducive to the safety or health or morals or convenience of the people? It is not sufficient that the Legislature may have assumed that it was (if in fact the Legislature did do so). It must reasonably appear to the court to be the case. Might the Legislature not, with as much show of reason, have suppressed the sale of another drink the people are accustomed to taking? Is there an instance anywhere where the courts have sustained an interference by the Legislature with the occupation of a citizen, so little calculated in itself to be injurious to his fellow man as in this case? If such a law could be sustained, bearing as it does, no relation to those ends for the accomplishment of which the police power is entrusted to the Legislature, then indeed is the power of the Legislature supreme and those constitutional safeguards which have heretofore protected the citizens in the continuance of those lawful pursuits which they have selected as a means of livelihood and form a part of their civil liberty are broken down and the continuance of such pursuits must be dependent upon the temper of the particular majority in power at the time. Then would it be true that ours had become a government of men and not of laws. If the court should hold that the Legislature had the power to prohibit the pursuit of this occupation, what occupation would be protected? That this one may be abused is as we have seen immaterial to the discussion Judge Parker in the case quoted above says.

"Only one prop remains which it is pretended can support the weight of this statute, and that is, that the penal laws not having proved sufficiently efficacious to wholly prevent fraud, an emergency is presented which justifies the taking away from the general public the right to engage in the business of ticket selling. It is not contended that the business of ticket brokerage is in itself of a fraudulent character. The business can be honestly conducted; it has been so conducted in the past by honest men engaged in it, and the most that is asserted is that there are some men engaged in the business who have imposed on the public. The same assertion can be made with equal truth of every business, trade or profession. Because some coal dealers and vendors in sugar cheat in weight, and dealers in paints and oil in measurement, and in tobacco in quality, it has not hitherto, we venture to say, been thought the proper remedy to make it a felony for persons to hereafter engage in such business unless they shall have been duly appointed as agents by the corporations manufacturing or producing the product."

"What occupation, we repeat, would be protected? We feel therefore that we are justified in saying, as said at the outset, that rarely has it happened that this court has had before it for consideration an Act, the sustaining of which would involve greater danger to those safeguards of civil liberty under which civilization has advanced."

In the case of the People v. Marx, the Act, the constitutionality of which was before the court, was in part as follows: "6. No person shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer to sell the same as an article of food. This provision shall not apply to pure skim milk cheese produced from pure skim milk."

After quoting the language of Earl, J., in Re Jacobs, to the effect that the liberty of the citizen which is protected by the Constitution includes the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways to live and work where he will, to earn his livelihood in any lawful calling and to pursue any lawful trade or avocation, the court says: "Who will have the temerity to say that these constitutional principles are not violated by an enactment which absolutely prohibits an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race?

"Measures of this kind are dangerous even to their promoters. If the argument of the respondent in support of the absolute power of the Legislature to prohibit one branch of industry for the purpose of protecting another with which it competes can be sustained, why could not the oleomargarine manufacturers, should they obtain sufficient power to influence or control the legislative councils, prohibit the manufacture or sale of dairy products? Would arguments then be found wanting to demonstrate the invalidity under the Constitution of such an Act? The principle is the same in both cases. The numbers engaged upon each side of the controversy can not influence the question here. Equal rights to all are what are intended to be secured by the establishment of constitutional limits to legislative power, and impartial tribunals to enforce them." The Act was held unconstitutional.

"The People v. Steel, 83 N.E. 236, was an appeal from a conviction for violating an ordinance forbidding one from selling a theatre ticket not having printed thereon, ``This ticket can not be sold for more than the price printed hereon,' forbidding the sale of such a ticket for more than the advertised or printed rate thereof and forbidding the establishment of an agency for the sale of tickets at a greater price than that asked at the box office. The enforcement of the ordinance was resisted on the ground that it contravened that section of the Constitution declaring that ``no person shall be deprived of life, liberty or property without due process of law.'" The ordinance was held unconstitutional. The opinion is an exhaustive one, citing and quoting at length from many authorities from which we have quoted.

The following quoted in the opinion from the Supreme Court of California in Ex parte Quarg, 149 California, 79, 84 P. 766, may be repeated here with interest: "The police power is broad in its scope; but it is subject to the just limitation that it extends only to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect, or preserve, the public health, morals or safety, or the general welfare. The prohibition of an Act which the court can clearly see has no tendency to affect, injure or endanger the public in any of these particulars and which is entirely innocent in character is an act beyond the pale of this limitation, and it is therefore not a legitimate exercise of police power. The sale of a theatre ticket at any advance upon the original purchase price, or the business of reselling such tickets at a profit is no more immoral or injurious to public welfare or convenience than is the selling of an ordinary article of merchandise at a profit."

"We have already taken advantage of the case of People v. Warden, 51 N.E. 1006, to show by the strong language of Judge Parker, who spoke for the court, that the fact that a legitimate business may be unlawfully pursued furnishes absolutely no ground for depriving citizens who intend to pursue it honestly from engaging therein. The Act was one to prevent the selling of railroad tickets except by persons authorized by a transportation company. It had been argued that such a prohibition was within the power of the Legislature because the unrestricted right to sell such tickets furnished an unusual opportunity for perpetrating fraud on the public. In fact, the Act was entitled, ``Frauds in the Sale of Passage Tickets.' After demonstrating that the fact that the occupation was liable to abuse was no justification for the prohibition of it, the court then undertook to determine the question that we have here, namely, whether the prohibition of the honest pursuit of it was within the police power. The court said: ``The statute is therefore in contravention of the State Constitution, and is void unless its enactment by the Legislature constituted a valid exercise of the police power. That power is very broad and comprehensive, and has not at yet been fully described, or its extent plainly limited, but it is exercised to promote the health, comfort, safety and welfare of society. In each of the last three cases cited it was invoked by counsel to sustain a statute, and it received very careful consideration at the hands of this court. It was held that the power, however broad and extensive, is not above the Constitution, in obedience to the commands of which the courts will protect the rights of individuals from invasion under the guise of police regulations, when it is manifest that such is not the object and purpose of the regulation; and, while it is the general province of the Legislature to determine what laws and regulations are needed to protect the public health, comfort and safety, courts must be able to say, upon a perusal of the enactment, that there is some fair and reasonable connection between it and the ends above mentioned. Unless such relation exists, an enactment can not be upheld as an exercise of the police power.'" The Act was held to be unconstitutional.

"The case of The State v. Ashbrook, 55 S.W. 627, arose on the question of the constitutionality of an Act making it unlawful for persons to conduct a department store without taking out a special license and paying the special tax. The law was like the one under consideration, in that it provided no qualifications for the persons wishing to engage in the business and contained no provisions which indicated an honest intention or any intention on the part of the Legislature to regulate the business. As the court said, and as must be said of this Act, ``The applicant is simply required to pay his money and take out his license.' That is the beginning and the end of the police supervision and control over him or his business so far as concerned the Act in question. In order to sustain legislation of the character of the Act in question as a police measure, the courts must be able to see that its object to some degree tends towards the prevention of some offense or manifest fault or has for its aim the preservation of the public health, morals, safety or welfare. If no such object is discernible, but the mere guise and masquerade of public control under the name of ``An Act to regulate business and trade,' etc., is adopted, that the liberty and property rights of citizens may be invaded, the court will strike down the Act as unwarranted. Mere legislative assumption of the right to direct and indicate the channel and course into which the private energies of the citizens shall flow or the attempt to abridge or hamper his right to pursue any lawful calling or avocation which he may choose without unreasonable regulation or molestation, have ever been condemned in all free government." The Act was held unconstitutional.

"The suppression in liquor traffic in local option territory is a matter that the Legislature is free to deal with and rigorous laws have been passed to this end. If any more are needed, it is within the power of the Legislature to enact them. The Act limiting the hours of labor of bakers passed by the New York Assembly was before the Supreme Court of the United States in the case of Lochner v. New York, 198 U.S. 45, and the argument was made in support of the contention that it was within the police power of the State, that the law tended to conserve the public health, but he court held that this was untenable, saying that all the State could properly do in this regard had been done by it in other sections of the Act; that these sections provided for the inspection of the premises, for furnishing proper washrooms and water closets, etc. The court held that the part of the Act limiting hours of work bore no reasonable relation towards the accomplishment of any of the ends for which the police is recognized to exist, but on the contrary characterized such statutes as ``mere meddlesome interference with the rights of the individuals.'

"It was sought in the case of Richie v. The People (Supreme Court of Illinois), 40 N.E. Rep., 454, to uphold the Act of the Legislature limiting the hours of work of females on the ground that woman on account of her sex required such protection and that the Act as designed for this purpose and was within the police power of the State, but the court held that females were citizens of the State as were the males and that their constitutional right to freely contract for their labor could not be interfered with. The court held there was no reasonable relation between the Act and the end sought to be accomplished and held it unconstitutional.

"In the case of Wyeth v. Thomas, 83 N.E. Rep., 925, which was decided by the Supreme Court of Massachusetts this year, a rule was passed by the Board of Health which in effect provided that no person should follow the business of an undertaker who was not a registered embalmer. Again, it was sought to uphold the Act upon the ground that it was a police regulation, but the court held otherwise, quoting from Lochner v. New York, ``The mere assertion that the subject relates though but in a remote degree to the public health does not render the enactment valid. The Act must have a more direct relation as a means to an end and the end itself must be appropriate and legitimate before an Act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.'"

It was sought in the State of Washington to uphold an Act making it a crime to engage in the business of plumbing without first having obtained a license as required by the statute on the ground that good plumbing or bad plumbing bore directly and intimately upon the public health and that the regulation of the business therefore fell within the police power of the State. The case is authority here as showing that there must be some real and substantial relation between the Act and the preservation of the safety, morals or health of the people and not a merely fanciful one. The court held that there was no such substantial relation in the case of this Act and held the Act unconstitutional. If the preservation of health from defective plumbing required an Act of the Legislature, such an Act might be passed. The Act in question, however, was held not to be reasonably calculated to accomplish the purpose. The court quoted the language of Mr. Justice Peckham in the case of Lochner v. New York. "There must be more than the mere fact of the possible existence of some small amount of unhealthfulness to warrant legislative interference with liberty." The case referred to is Richie v. Smith, 84 P. 851.

The city of Macon passed an ordinance levying a tax on persons engaged in lending money on household or kitchen furniture and wearing apparel. The tax was so high as to be prohibitive. It was held that the power given the municipal corporation to levy taxes did not include power to impose upon a legitimate business a tax so high as to render it impossible to pay the same and carry on the business profitably. While the question before the court was the extent of the power which had been granted to the city, the following portion of the opinion of Chief Justice Horton in Lyons v. Cooper, 39 Kansas, 324, is pertinent here. "Where the grant is not made for revenue alone, but for regulation also and the business is one that does not injuriously affect the public interests or lead to disorder or to increase necessity for police supervision like the sale of intoxicating drinks as a beverage, the license fee, while somewhat within the discretion of the mayor and the council, ought not and can not be so excessive as to prohibit and destroy a business carried on for necessary purposes," The case is reported under the style of Morton v. Macon, 50 L.R.A., 485.

The State of Wisconsin passed a law which, if held valid, would give the occupant of the lower berth in a sleeping car the option of having the upper berth closed if unoccupied. The Act just as the one before us, the like of which no Legislature so far as our search has been able to disclose has ever passed, might well be called one of those "experimental laws" which are referred to in the decision of the case in which the Act was held to be unconstitutional. State v. Redmon, 114 N.W. 137.

It was claimed that the Act was valid as being a proper exertion of the police power for the health of the people. The court said: "It is not every enactment which will to some extent promote the public health, comfort or convenience which is legitimate. Otherwise the way would be open for legislative interference with the ordinary affairs of life to an extent destructive of many of the most valuable purposes of civil government."

The court then gives an illustration of the extreme length to which an expert on sanitation might reasonably go in providing rules of health for long and enjoyable life. The court then says: "That such an extreme would be regulation run mad is quite improbable 'tis true, but it would be possible without limitations of some sort, if a police law be conclusively legitimate merely because it promotes, however trifling in degree, public health, comfort or convenience.

"Illustrating the matter was above in Ex parte Jentzsch,112 Cal. 468-472, 44 P. 803, 804, 32 L.R.A., 664, the court said: ``The spirit of such a system such as ours is, therefore, at total variance with that which, more or less veiled, still shows in the paternalism of other nations. It may be injurious to health to eat bread before it is twenty-four hours old, yet it would strike us with surprise to see the Legislature making a crime of the sale of fresh bread. So, while the police power is one whose proper use makes most potently for good, in its undefined scope an inordinate exercise lurks no small danger to the republic. For the difficulty which is experienced in defining its just limits and bounds, affords a temptation to the Legislature to encroach upon the rights of the citizens with experimental laws, none the less dangerous because well meant.'

"The doctrine that the police power is really a law of necessity forms the key, it would seem, with which to unlock the mysteries, so far as practicable, of what is within and what is without the limits of such power. Not that a police regulation in form or pretense, to be one in fact must supply some absolute essential to the public welfare, but that the exigency to be met must so concern such welfare, be sufficiently vital thereto, as to suggest some reasonable necessity for a remedy affordable only by a legislative enactment, as to efficiently invite public attention thereto, it being regarded as a legislative function to primarily pass upon the matter. No more definite rule can be well worked out except as it may be evolved by the process of inclusion and exclusion in the treatment of cases as they arise."

Bonnett v. Vallier, cited, involving the constitutionality of an Act regulating construction of tenement houses was held not to be within the police power of the State and being otherwise invalid was declared unconstitutional.

In the case of State v. Williams in the Supreme Court of North Carolina, 61 S.E. 61, an Act which forbade the mere bringing into a county of more than a half a gallon of intoxicating liquors was held to be unconstitutional and that the purpose of the Act when sought to be defined as the exertion of the police power could not be reasonably said to bear any clear, reasonable or substantial connection to the objects of that power.

In Tiedeman on Sales, section 101, it is said: "In order to justify a restrictive license the business must itself be of such a nature that its prosecution will do damage to the public whatever may be the character and qualifications of those who engage in it."

Certainly it is clear that the sale of a nonintoxicating drink which is the antithesis of the intoxicating drink by its very definition can not be said to be one such that the business of selling it will do damage to the public "whatever may be the character or qualifications of those engaged in it."

But much that we have said might well have been omitted because to this court it is but to travel over again well beaten paths. The cases of Hirshfield v. The City of Dallas, 15 S.W. 124; Ex parte Wood, 52 Tex.Crim. Rep., 108 S.W. Rep., 1171; Owens v. The State, 53 Tex.Crim. Rep., 112 S.W. Rep., 1075; and Ex parte Brown, 38 Tex.Crim. Rep., 42 S.W. Rep., 554, contain a clear and unqualified enunciation of all the principles which have been set forth above and supported by the authorities and no further citation than of these cases it seems to us is necessary to demonstrate that this experimental law bears no relation to a proper safeguard or preservation of the safety, health, morals or convenience of the people, but is merely the result of the caprice of a "legislative majority," such as was in the mind of Mr. Justice Peckham and from an arbitrary interference by which written Constitutions were ordained and established.

Nothing is more important that we could say in helping the court arrive at a correct conclusion as to the constitutionality of this Act than that it is not to be considered as applying to local option territory only. We hope we have established thoroughly that because in the past the selling of nonintoxicating drinks has in some places been made the cloak and shield for violating local option laws furnishes no reason why a citizen who desires to pursue the occupation lawfully in that territory should be deprived of his constitutional right to do so, but what we would have the court bear in mind is that this Act is not limited in its operation to that territory alone, but applies as well in those parts of the State where local option is not in effect. Even here where the sale of intoxicating liquors is not prohibited and where such criticism of the Act could not possibly apply, the citizen is, because of the enormity of the tax, deprived of the opportunity of pursuing this vocation.

"II. The Act is void and unconstitutional because in conflict with sec. 2, art. 8, of the Constitution, in that the tax is not equal and uniform within the meaning of the Constitution and is class legislation.

Pullman Palace Car Co. v. State, 64 Tex. 274; Ex parte Jones, 43 S.W. Rep., 513; Ex parte Overstreet, 46 S.W. Rep., 825; Rainey v. State, 53 S.W. Rep., 882; Poteet v. State, 53 S.W. Rep., 869; Ex parte Woods, 52 Tex.Crim. Rep., 108 S.W. Rep., 1171; Owens v. State, 53 Tex.Crim. Rep., 112 S.W. Rep., 1075; People v. Marx, 99 N.Y. 377; Wynehamer v. People, 13 N.Y. 378; Calder v. Bull, 1st (Law) U.S., 648.

"The Act under discussion went into effect and became a law February 24, 1909. Thereafter on the ___ day of July, 1909, and more than five months after the enactment of the law, under consideration, the law known as the Robertson-Fitzhugh law passed by the Thirty-First Legislature became a law. This Robertson-Fitzhugh law was designed to regulate the sale of intoxicating liquors. It covered the entire scope of the subject matter legislated upon and provided a complete system of procedure to secure license to engage in the business and to regulate the traffic in intoxicating liquors and defined intoxicating liquors. All of which was set out in the caption of the bill and incorporated in the body of the Act. This Act provided that upon a payment of $375, to the State and upon a compliance with the other provisions of the statute a man could engage in the business of a retail liquor dealer. In section 1 of the Act the Legislature fixed the tax: "For Selling Malt Liquors exclusively, $62.50."

"It will be noticed that this provision is ``For Selling Malt Liquors exclusively,' whether the same be intoxicating or nonintoxicating. Section 2 of said Act defines a retail liquor dealer and then concludes: ``Any person who sells intoxicating liquors in quantities less than one gallon shall be governed by the provisions of this law and be required to take out license hereunder.' Section 3 relates to the malt dealer exclusively. Section 4 prohibits any person from selling spirituous, or vinous liquors ``without taking out a license as a retail liquor dealer.' Section 5 prohibits any person from selling malt liquor without taking a malt liquor dealers' license, but specifically provides: ``That this section shall not apply to a retail liquor dealer and that a retail liquor dealer's license should be construed to embrace a retail malt dealer's license.' Section 34 of this Act referring to the term intoxicating liquor as used in section 2, as before stated, says: ``The term intoxicating liquor as used in this Act shall be construed to mean fermented, vinous or spirituous liquors, or any composition of which fermented vinous or spirituous liquors is a part, and all of the provisions of this Act shall be liberally construed as remedial in character.' All malt liquor is fermented.

"It is therefore perfectly patent that the very terms of this bill demonstrate the purpose of the Legislature that the Act should be coextensive with the legalized traffic in fermented, vinous or spirituous liquors, and therefore embraced the subject previously legislated upon by the Act challenged in the case at bar, clearly evidencing a purpose on the part of the Legislature either to take the retail liquor dealer or the retail malt dealer out of the provisions of said challenged Act, or to repeal the same. It follows then, of course, in either case, that the relator is entitled to his discharge.

"Treating the provisions of the Robertson-Fitzhugh bill quoted along with section 34 of said bill, as an exception, it will be seen that a retail liquor dealer by paying $375.00 to the State can do what it would cost the corner groceryman $2,000 to do, to wit: To sell a nonintoxicating malt liquor. Or to restate it, the corner groceryman who keeps beer for sale which may be an intoxicant in fact, can sell Hiawatha, which it not an intoxicant in fact, by paying to the State a license tax of $62.50 a year, which his competitor across the street who may believe that it is wrong to sell beer which intoxicates and may not desire to engage in the business as a retail malt dealer and yet who may have a trade which requires malt liquors which are not intoxicating in fact, and while he may realize that it is not morally wrong to sell such liquors and may desire to do so with a view of preserving his business and supplying his trade, he either has to surrender a harmless and lawful part of his business or has to pay the discriminating tax of $2,000 a year to the State. If this court should hold that this Act is existent and valid, they would be responsible for placing a premium upon the liquor traffic, because they would say to a man you can not sell a harmless beverage, one which even is beneficial, unless you either become a retail liquor dealer or malt dealer and sell whisky or beer along with the nonintoxicating malt liquors, or you must pay the tax of $2,000.

"Every argument that is advanced by the advocates of the Act here challenged to the effect that the nonintoxicating beverage is frequently used as a fraud to aid in the illegal sale of intoxicating liquors, is met and destroyed by section 34 of the bill above quoted.

"The purpose of that section was to meet the argument such as is advanced by the advocates of the bill challenged. The Thirtieth Legislature in governing the liquor traffic defined intoxicating liquor with the sweeping definition in section 34, to take the question of intoxicating qualities of a beverage from the jury and defined intoxicating liquors in such sweeping terms that a defendant could not be heard to say after it was shown that he had sold vinous, spirituous or malt liquors, that the same were not intoxicating in fact. The Thirty-First Legislature reenacted this definition in the Robertson-Fitzhugh bill. So now if a man is indicted for selling malt liquors and the State should prove that he sold such liquors, and that the same were fermented liquors and that he had no license as a retail liquor dealer or a retail malt dealer, then he would not be permitted to introduce proof to the effect that notwithstanding said liquors were fermented, still they were not intoxicating in fact, because the statute plainly says that such liquors are intoxicating. This provision has been incorporated in the liquor laws of a great many States because of the unvarying custom that when a man was indicted for selling intoxicating liquor without license, he always interposed the defense that the liquor was not intoxicating in fact. Of course he can deny the fact that the liquor was either vinous, spirituous or malt. But if he admits or the State establishes it, and he does not seek to contradict that the liquor is spirituous, vinous or malt, he will not be heard to say that such liquor is not intoxicating in fact. (We are not discussing the local option law and what are intoxicants under that law. The Act here mentioned is one of regulation, not of prohibition. Under the local option law in this State, the intoxicating quality of the liquor must be proved as a sine qua non to conviction. The definition of intoxicants in the Robertson-Fitzhugh law does not apply to the local option law.) Because the statute expressly says that it is. And this statute dealing with the strong subject of intoxicating liquor in fact and in law enjoys the unrestricted scope and vital force of the police power and such statutory definition is clearly a proper exercise of the police power. This being so, it was not necessary for the Legislature to enact the statute here challenged as an aid to the enforcement of the liquor traffic and the statute can not be sustained on that ground. If the subject matter of the statute is a fit subject for the operation of the police power, then it has been acted upon fully by the Robertson-Fitzhugh bill when it says: ``Any person who sells intoxicating liquors in quantities less than one gallon shall be governed by the provisions of this law, and be required to take out a license hereunder.' If it is not, on the other hand, the fit subject of operation by the police power then, of course, the statute would be void for that reason.

"Section 35 of the Robertson-Fitzhugh bill which became effective on the date as before stated, provides: ``All laws and parts of laws in conflict with this Act are hereby expressly repealed.' The Robertson-Fitzhugh bill is a proper exercise of the police power. It proceeds upon the proper theory of police regulation prescribing the qualifications of a license, setting forth the procedure to secure a license, provides for the method of operating a place where intoxicating liquors are sold, surrounds the same with legal and reasonable restrictions. The bill challenged has none of these features of police regulation. It simply stands out like a broken and dead tree in the symmetrical forest of the liquor regulatory laws of this State.

"Another irreconcilable conflict between the law challenged and the so-called Robertson-Fitzhugh law is that under the law challenged any person without let or hindrance, without qualification and without restraint may engage in the business of selling nonintoxicating liquors anywhere upon the simple payment of the license tax; whereas, under the Robertson-Fitzhugh bill, as before stated, qualifications are exacted and the number of saloons limited. So if this bill is permitted to stand instead of becoming a sword to prevent the illegal sale of intoxicating liquors, it would become a shield to protect the illegal vendors of intoxicating liquors sold under a license procured under this statute. For instance, if a city has secured all the liquor and malt dealers' licenses to which she was entitled, and any person without such license should engage in selling nonintoxicating malt liquors, his business could be suppressed under the Robertson-Fitzhugh bill, but if he had paid a tax under the bill attacked in this proceeding then he could use such license and sell beer and other intoxicants in fraud of the revenue of the State and contrary to the plain provisions of the Robertson-Fitzhugh bill, and when called upon to answer for such illegal sale he could interpose the defense that the liquor sold by him was nonintoxicating in fact, therefore he was protected by the license issued under the Act questioned. And thus the advocates of the validity of this measure would realize so far as it is concerned that ``from the source from whence comfort seems to come, discomfort swells.'

"This bill can not and should not be construed in any sense as a prohibition or local option law. Ex parte Woods,108 S.W. 1171. And further, because no local option law can have extra territorial force — can not be operative in wet territory. This case comes from a territory where liquors are sold under the law, and where their sale has not been prohibited, and in the case at bar should not for a moment be construed as such local option or prohibition statute.

"Under the principles asserted and the authorities cited, we respectfully submit that the relator is entitled to be discharged.

Respectfully submitted,

J.B. Bisland, Baker, Botts, Parker Garwood, McGregor Gaines, Attorneys for relator."

Jesse Andrews, of Counsel.

Adopting this brief as my dissenting opinion, I wish to say my brethren have not even measurably met the case as presented in the argument of applicant's counsel, and the questions therein discussed. There is much said in the prevailing opinion which seems to have no particular bearing on the issues involved. These I do not care to notice. What has been said therein will pass into history as evidence of the strenuosity of present day environments. It is doubtless of little use to dissent. At present it will avail but little. Its practical value is to be looked for in the future, and I write this dissent as I have written others, feeling it to be for the present unavailing, but yet I do so with the hope born of abiding faith that at some time, not far distant, there will be a return to correct legal principles and sound jurisprudence — a home-coming to the guaranties of liberty sought to be established by the fathers and perpetuated in our constitutional form of government.