Edmanson v. State , 64 Tex. Crim. 413 ( 1911 )

When the original opinion was handed down in this case I was not present, nor did I participate in the decision. Motion for rehearing was filed, and on one proposition granted, and the judgment reversed and the cause remanded. The original opinion, however, did not discuss the question upon which the judgment was finally reversed, but confined itself to a discussion of the validity of the Act of the Thirty-First Legislature, page 53, under which the prosecution occurred. That Act was held valid and provides that "In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations that pursue the business of selling or offering for sale any intoxicating liquors by soliciting or taking orders therefor in any quantities whatsoever, in any such county, justice precinct, town, city or other subdivision of a county, an annual State tax of four thousand ($4,000) dollars, in each county, and also each incorporated city or town may levy an annual tax not exceeding two thousand ($2,000) dollars in any such county or incorporated city or town where such business is pursued." This is section 1 of the Act of the Thirty-First Legislature, found on page 53 of the Act of 1909.

This Act authorizes any person or association of persons or corporations, or firms, by paying the tax provided to sellintoxicating liquors as a business through means of soliciting or taking orders in local option territory. This Act became effective on February 24, 1909. At the same session of the Legislature, on page 284 of the Act of that body, this Act is found: "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 hereby 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."

These two Acts having been passed by the same legislative body at the same session, should be construed together, and both held valid if legally it can be done. The authorities on this proposition are very numerous, some of which I cite: Neil v. Keese, 5 Tex. 23; Lovett v. Casey, 17 Tex. 594 [17 Tex. 594]; Cain v. State, 20 Tex. 355; Scoby v. Sweatt, 28 Tex. 713; Austin v. G., C. S.F. Ry. Co., 46 Tex. 236; Laughter v. Seela,59 Tex. 177; Walker v. State, 7 Texas Crim. App., 245; McGrady v. Terrell, 98 Tex. 427; Garrison v. Richards, 50 Tex. 397, 107 S.W. Rep., 861; Joliff v. State, 53 Tex.Crim. Rep., 109 S.W. Rep., 176. It also seems to be a well settled rule that where two irreconcilable statutes go into effect on the same day, or at the same session, the one approved last controls. Garrison v. Richards, 50 Tex. 397, 107 S.W. Rep., 861. Another general rule is that all laws in pari materia, or in relation to the same subject matter, that is, to the same person, thing or classes, are to be construed together. This has been the invariable rule in Texas since Fowler v. Poor, Dallam, 401. The authorities are harmonious on this line, and I deem it unnecessary to cite them. Another rule is, if when considered together there appears an absolute irreconcilable conflict or repugnancy as they can not stand together, then the rule is that the statute last enacted will control. In addition to the authorities already cited, I cite Bryan v. Sunberg,5 Tex. 418; Sterman v. State, 31 Tex. 734 [31 Tex. 734]; Etter v. M.P. Ry. Co., 2 Civil App., 58; Chiles v. State, 1 Texas Crim. App., 27; Holden v. State, 1 Texas Crim. App., 225; Davis v. State, 2 Texas Crim. App., 425. These are perhaps enough authorities on the general proposition involved.

Reading these two Acts together we find that on the 24th of February, 1909, the Legislature authorized the sale of intoxicating liquors in local option territory upon the payment of the tax specified in the Act above quoted. It will be useless to discuss the proposition that where the Legislature authorizes, by virtue of a tax, the carrying on of the business and makes it legitimate, that the party can not be punished for doing that particular business by compliance with the statute authorizing him to follow or pursue that business or occupation. By the Act punishing as criminal the sale of intoxicants in local option territory, it will be seen that if the party who takes out the license or pays the tax does pursue the business in local option territory as specified in the former Act, he will be sent to the penitentiary under the latter Act. It is made a felony by the latter Act, a conviction for which would render the convicted party infamous. This law went into effect ninety days after the adjournment of the session of the Legislature which enacted it. The other went into effect immediately upon its passage. So it will be seen that the felony statute is the later statute on the subject, and if there be an irreconcilable conflict in the two, under the authorities cited, the latter repeals the former Act. That there is an irreconcilable conflict is not to be questioned. By no process of reasoning can the two statutes be reconciled, that is, one authorizing a man to do a certain thing without criminality, and the other convicting him as a felon for doing that act. Without going further into a discussion of this phase of the case, it occurs to me that the latter Act is in such direct conflict and so antagonistic to the former that the two can not stand, and the latter Act must therefore be held valid. They can not both be valid. It certainly ought not to be contended with any degree of candor that the State can or would intentionally, through its legislative body, license a citizen to do a thing, receive his money under the guise of a tax for the purpose of authorizing him to do that particular thing, and then send him to the penitentiary for doing the authorized act. Wherever the State authorizes her citizenship to follow an occupation or pursue a business, and accepts the money of the citizen, she guarantees to him the right to follow that business, and further guarantees the power of the State to protect that citizen in the doing of the authorized act. It would not do to say that the State or the legislative body intended by this means to entrap one of her citizens into a violation of the law and thus perpetrate a wrong on him and then hold for punishment. Wherever the legislative authority licenses an occupation, this is authority to the citizen to pursue that occupation by compliance with the statute, and when he does he has the permission, privilege or right to do the acts therein specified, and under such circumstances the good faith, honor and integrity of State stands pledged to protect him in doing the privileged act. If the licensed act is constitutional, then the State stands pledged by all the power of its governmental authority to protect the citizen in following that occupation, and in good conscience and in good faith the courts of the State should see that the citizen is protected in following the occupation or pursuing the business. If both Acts are to be held valid, then the same Legislature by the subsequent Act has entrapped the citizen into paying his money and following the occupation mentioned, and for so doing he is to be incarcerated in the penitentiary for a term of years with the stamp of infamy upon his name. This would be certainly an outrageous act of injustice.

2. I am of opinion that appellant's contention is correct, that the Act under consideration is in violation of the Constitution wherein it undertakes to authorize the citizen to follow the business or pursue the occupation of selling intoxicating liquors in local option territory by paying the occupation tax specified in the statute. It authorizes the following of a business or the pursuing of an occupation which is prohibited by the majority of the voters of that territory, in obedience to section 20, article 16, of the Constitution. That section provides that by a majority vote of the people of the mentioned territory the selling of intoxicants shall he prohibited, and it has always been held, and the Constitution itself so provides, that where the local option law is put into operation by a vote of the majority of the voters of a given territory, the sale of intoxicants is prohibited within that territory, and that when this occurs the local option law supersedes and supplants all character of selling of intoxicants in said territory. Article 16, section 20, of the Constitution; Robertson v. State, 5 Texas Crim. App., 155; Boone v. State, 12 Texas Crim. App., 184; Donaldson v. State, 15 Texas Crim. App., 24; Ex parte Lynn, 19 Texas Crim. App., 293; Robertson v. State, 12 Texas Crim. App., 541; Gibson v. State, 34 Tex.Crim. Rep.; Rathburn v. State, 88 Tex. 281; Rauch v. Com., 78 Pa. St., 490; State v. Yewell, 63 Md. 120, 1 So. Rep., 632; Com. v. Jarrell, 5 S.W. Rep., 763, 5 Dakota, 433, 25 Fla. 347; Bagley v. State,103 Ga. 388; Com. v. Mueller, 81 Pa. St., 127; Wheeler v. State,64 Miss. 462; Young v. Com., 14 Bush., 161, 38 Mo., 566; Black on Intoxicating Liquors, 90 to 198. This Act undertakes to authorize the business of selling intoxicants in local option territory by reason of the payment of the specified tax. This can not be done where the sale of such intoxicants has been prohibited by a vote of the people of that territory. The Act is unconstitutional for this reason.

3. The licensed Act is in direct conflict not only with the local option law, and supplants it if held constitutional, but it is in positive conflict with the subsequent Act of the same Legislature, page 284, which punishes a citizen for doing the licensed act by confining him in the penitentiary for a period of two to five years. It is also in conflict with another phase of the local option law, to wit, the punishment for a single sale in the local option territory. These laws are so irreconcilably in conflict that they can not all stand. The subsequent Act, or that found upon page 284 of the Act of the Thirty-First Legislature, punishing those who pursue the business of selling intoxicants in local option territory, has been held constitutional in quite a number of decisions. This law has been held by a majority of this court effective in local option territory whether the people had voted on the local option law before or subsequent to the passage of said Act. See Fitch v. State, 58 Tex.Crim. Rep., 127 S.W. Rep., 1040; Slack v. State, 61 Tex.Crim. Rep., 136 S.W. Rep., 1073; Bell v. State, 62 Tex.Crim. Rep., 137 S.W. Rep., 670; Dozier v. State, 62 Tex.Crim. Rep., 137 S.W. Rep., 679, and other decisions rendered since its enactment.

4. This law, if constitutional otherwise, would be unconstitutional in that it levies a tax which is prohibitory and can not be construed as a revenue measure. Article 3, section 48, of the Constitution, limits the Legislature in its "right to levy taxes or impose burdens upon the people in all matters except to raise revenue sufficient for the economical administration of the government." To the candid mind the heavy tax mentioned in the statute can not be construed as levied for revenue purposes, for the simple reason that it is placed so high that the business can not be carried on, or the occupation followed. It was intended only as a prohibition and not as a revenue measure.

5. This statute can not be regarded as a police regulation, but only and purely as a tax measure. Ex parte Woods, 52 Tex. Crim. 575. Judge Ramsey, delivering the opinion of the court in the Woods case, so fully treats of this matter that I deem it unnecessary to do more than to cite the opinion, and I further think it unnecessary to do more than to cite the opinion, and I further think it unnecessary to cite other cases. The act of levying the tax under discussion has none of the earmarks and presents no evidence whatever of the fact that it is a police regulation. It does not undertake by any of its terms to regulate the doing of the business. It simply levies a tax of four thousand dollars for the State, two thousand dollars for the county, and two thousand for the city, making the sum total of eight thousand dollars, upon the paying of which and the obtaining of the license from the clerk, the party can pursue the business without any regulation. Under that Act if the tax is paid and the license obtained, the party can sell in local option territory adlibitum through the means of taking orders. There is no attempt to regulate how this shall be done or where the business shall be carried on, and there are no regulations controlling it.

These questions, some of which I have not discussed, were very vigorously presented to this court by my Brother Harper in the case of Jones v. State, found reported in the 60 Tex. Crim. 611, before he became a member of this court. The brief as reported shows careful research and a very thorough analysis of the laws under consideration. My Brother Harper then insisted in a strongly written brief that this law was unconstitutional for several reasons. I call attention to that brief with commendation, rather than my Brother Harper's opinion in this case. I believe he was right in the Jones case, supra, and thoroughly wrong in his opinion in this case. I do not care to discuss the matter further. This judgment ought to be reversed and prosecution dismissed.

With these remarks I enter this my dissent.