Ex Parte Flake , 67 Tex. Crim. 216 ( 1911 )

This case was affirmed at a former day of this term, and relator's counsel filed a motion for rehearing in which he earnestly insists that this court erred in several respects in the original opinion. The opinion in the case is already so lengthy we would not write further only that counsel so earnestly insist that we are wrong in holding that the statute in question is but an exercise of the police power inherent in the State. Many learned men and text-writers have written definitions stating of what the police power consists, but the one that appeals most directly to us is the one that tersely stated it was akin to the right of self-defense in an individual. As a man is authorized to protect himself against danger threatening life or limb, so is the State authorized to protect itself against those things which threatens its existence, and its existence can not be maintained except by the protection of the life, health and happiness of its citizens, their moral and physical welfare; and the promotion of what will upbuild its educational and industrial interests. If this law was seeking to deal with an object of commerce that was harmless, and could and would not injuriously affect the best interests of society, then the right of the State to levy in effect a prohibitory tax would be questionable, and the authorities cited by relator apply. But in this case it can not be contended that a "harmless beverage" was being dealt with, intoxicating and "nonintoxicating malt liquors."

In the case of Ex parte Townsend, 64 Tex.Crim. Rep., 144 S.W. Rep., 629, we discussed at length the meaning of malt liquors, and demonstrated that the legal and fixed meaning of "nonintoxicating malt liquors" was a liquor containing some percent of alcohol, and it was this ingredient — alcohol — that gave to the State the right of regulation and control under the police power. That other liquors than liquors containing alcohol, might, under some constructions, be brought within the definition and meaning of the words there used, that would not render the law unconstitutional, but as said by all the authorities, it is the duty of this court to give the words the definition and meaning which would uphold the constitutionality of the Act. This we have done, as it was our duty to do, and those storing liquors with no percent of alcohol therein are not brought within the provisions of the statute, and have no cause for complaint, and that it has been held to apply to all persons storing liquors for others, which liquors contain any percent of alcohol, is but giving force to the legislative intent and will, and whether or not we approve the policy of the law, "alcohol" in any and all its forms has been held by all the authorities subject to the police power of a State, and may be regulated, controlled or prohibited, if not inhibited by some provision of the Constitution. This power is illustrated in the prohibition of the sale of cocaine, morphine, laudanum, opium in all its forms, and other deleterious and harmful drugs and drinks, and the same rule of law that applies to them applies to "alcohol" in all its forms. In Kentucky a law was passed levying a tax on "soft drinks," and it was contended that this term included lemonade, soda water, mineral water and other harmless beverages as is contended in this case. In the case of Bradford v. Jones, 135 S.W. Rep., 291, it was held: "The term ``soft drinks' while including lemonade, soda water, mineral waters, and other innocent and harmless beverages, they are generally used in reference to ``malt mead,' ``near beer,' and other alcoholic decoctions, invented to take the place of intoxicating drinks. ``Soft drinks' that contain any percent of alcohol are regarded as hurtful to the morals and health of the community, and their sale might well come within the control and regulation of the police power. . . . It might be arbitrary and oppressive to fix the license fee for selling useful and pure mineral or health-giving waters at a sum that would virtually prohibit their sale, when it would not be arbitrary or oppressive to fix a license fee at a prohibitive figure for the sale of beverages that are not wholesome. . . . If appellant was only engaged in the sale of lemonade or like useful and innocent beverages, he should have so stated in his petition, and then we could deal with the precise case.

"In Wells v. Town of Mt. Olivet, 126 Ky. 131, 102 S.W. 1182, 31 Ky. Law Rep., 576, 11 L.R.A. (N.S.) 1080, we said: ``When an ordinance is assailed upon the ground that it is illegal, unfair, unreasonable, or oppressive, the person complaining will ordinarily be required to point out specifically in what respects the ordinance is unreasonable, unequal, or oppressive, as applied to the facts of the case relied on by him. An ordinance general in its scope may be adjudged reasonable as applied to one state of facts, and unreasonable when applied to circumstances of a different character. In recognition of these general rules, it is necessary that the plaintiff shall make out a clear case to authorize the court to interfere with the police powers of a municipal corporation when exercised in the enactment of ordinances. . . . When the aid of the court is invoked to declare a municipal ordinance void, it must clearly appear that it is inherently violative of the law or some of the well settled principles that are generally recognized as limitations upon the power of municipalities in the enactment of ordinances, or, if the ordinance is not inherently defective as coming within these inhibitions, then the person attacking it must affirmatively show that as applied to him it is unreasonable, unfair or oppressive.'

"When the police power can be invoked as authority for a municipal corporation to control and regulate the sale of an article, it may, if not forbidden by the statute, carry the right of control and regulation to such an extent as to prohibit the sale of it. Town of Pikeville v. Huffman, 112 Ky. 360,65 S.W. 794, 23 Ky. Law Rep., 1692; Commonwealth v. Payne Medicine Co.,138 Ky. 164, 127 S.W. 760."

In this case the indictment charges the storing of intoxicating liquors, and it is not alleged nor contended that the liquors stored by relator are other than intoxicating liquors, and under the decisions above cited, he is not in position to complain or raise the question as to what other liquors the statute does or does not apply. And in the case of Pikeville v. Huffman,65 S.W. 794, a law levying a license or tax on the sale of cider is upheld, on the ground that it contained alcohol, the court saying: "It is generally conceded now that it is a proper exercise of the police power, inherently incidental to government, to regulate by license or otherwise, or even to prohibit those callings hurtful to the morals, the health, or the peace of society. Embraced in such is the making, vending and use of intoxicants." As to the amount of alcohol contained within a beverage, it is held to be immaterial, but if contained in any percent it is hurtful and harmful to the health, peace and morals, and it is not the extent of its hurtful capacity that controls.

In the case of Caswell v. State, recently decided by our Court of Civil Appeals (not yet reported) it was held that if "the sale of pistols has a tendency to be hurtful to the welfare of society, then in that event the lawmaking power would have the right not only to levy an occupation tax, which would be prohibitive thereof, but could go further and absolutely prohibit anyone from engaging therein." Many other authorities might be cited, but we merely refer to the cases of Edmandson v. State, and Ex parte Townsend, recently recided by this court, and Caswell v. State and Smith v. State, recently decided by the Court of Civil Appeals, where other citations will be found.

But relator contends that if the State under its police power had the right to regulate and prohibit under the police power, yet this is an occupation tax and not an exercise of the police power. Relator overlooks the fact that nearly all our license laws are an entwining of the police power to tax. That the police power is frequently exercised by the levy of occupation taxes, sometimes incidentally revenue may be raised thereby and sometimes they are prohibitive. No one could justify the high license, or occupation tax, levied on the sale of liquors, where not prohibited, except under the police power. No one could uphold the high license or occupation tax levied on the sale of the "Police Gazette" and similar publications except under the police power; the high license or occupation formerly levied on ten pin alleys, and many other occupations and callings deemed hurtful to society. In the law making the levy they were termed an occupation tax, as in this instance, but the laws were nevertheless but an exercise of the police power as is evidenced by their regulatory and prohibitive features. Laws of this character have always been sustained in this State. Mr. Cooley, in his work on Taxation, says: "A tax levied for the double purpose of regulation and revenue is founded in both police and taxing power." (Page 111.) This question is so fully and ably discussed in the opinion in the case of Fahey v. State, 27 Texas Crim. App., 146, and in the able brief of our Presiding Judge we merely refer to it for a citation of authorities and reasoning upon which such laws are sustained.

As said by Judge Rice in the Caswell case, supra: "It is abundantly shown by the Texas case that although laws of this kind may be called occupation tax measures, yet if the facts surrounding the subject show that it was intended as a police regulation, or if it is a subject coming within the police power, the authority of the State to deal with the subject will be measured by the police power of the State, and not by the taxing power."

It is said in Cooley on Taxation (3d ed. 412) that a license fee imposed upon a certain business has been sustained as a police regulation, though called a tax in the legislation which authorized it. (See also Coms. v. Roby, 8 Ire. (N.C.) 250; Coms. v. Patterson, 8 Jones (N.C.), 182; Com. v. Crowell,156 Mass. 215; Cooley Const. Lim., 596; Vermont v. Harrington, 34 L.R.A. 100; Levy v. State, 161 Ind. 260; Thompson v. State, 17 Texas Crim. App., 257, and cases cited.

Another contention seriously made is that the law applying alone to territory where prohibition has been adopted, is, therefore, unconstitutional. In the original opinion we called attention to the fact that the people in adopting the Constitution recognized and appreciated the fact that different laws and different remedies would have to be adopted in territory where the sale of liquor was permitted and in territory where it was prohibited, and effect could not be given to the constitutional provisions in any other way. But in addition to this it has always been held that when license and occupation taxes are made applicable to all persons under the same conditions and circumstances, even though the license or tax might be higher under given conditions than under different conditions and circumstances. Thus in territory where the sale of intoxicants is permitted, the tax or license fee to engage in the business in the residence districts of a city or town might be placed at an amount that would be virtually prohibitive, while the license or tax to engage in the business within the business section was fixed at a less amount. Laws of this character have been upheld and are now being upheld in this State where the cities are authorized to fix saloon limits and refuse to license them in the prescribed limit, and yet grant them license to sell in the territory not prescribed in a reasonable amount. One living without the saloon limits is not deprived of any right or privilege that all under the same conditions are not deprived, and he will not be heard to complain that while he is prohibited from taking out license, or the tax is fixed so high as to render the business unprofitable, yet his neighbor living within two blocks of him, and not in the limits so fixed, can obtain license by paying a small tax. If there is any good sound reason upon which the classification is based, it will be upheld, and in this instance the reason is that the sale of intoxicants should not be permitted in residence districts, even though it is licensed and taxed in the business districts. And this rule of law applies not only to intoxicating liquors, but to many other dangerous and hurtful agencies, such for instance as prohibiting the erection of frame houses in the business districts, while they are authorized in residence districts. The reason being that the houses are so close together in the business districts that one endangers the other, and thus what are termed "fire limits" are sustained.

Is there any good sound reason why the storing of intoxicating liquors and the other liquors named in the law for others, should be prohibited in territory where the sale of intoxicants is prohibited, and yet is permitted in all territory where the sale is permitted? In territory where the sale is permitted and authorized it is a fact well known that intoxicating liquors must be stored as an incident to the business. Beer is kept stored in ice houses and necessarily so. Quantities of liquor must be kept on hand stored to supply the trade, special houses are built for storing intoxicating liquors, and keeping them properly, and the Legislature in licensing the sale of liquor where not prohibited appreciated this fact, and placed no additional burden on the persons storing it in such territory. But the circumstances and exigencies of the occasion are exactly opposite in territory where the sale is prohibited. There is no business followed in that territory that the storing of liquors is incident or necessary to, unless it be its illegal sale of such liquors, and, therefore, as in residence districts in the cities, the law is prohibitive in that territory. There is no distinction in the principle involved in the two laws; both are based on what is for the best interests of society and the welfare of the citizenship of the State. The classification, if it shall be so termed, is a reasonable one. The law is made to apply to all alike under the same conditions and circumstances.

The other questions we will not discuss as they are so fully treated in the original opinion. Since handing it down virtually all the questions have also been decided adversely to relator's contention by the Court of Civil Appeals in the case of Caswell and Smith v. State. In that case a writ of error has been denied by the Supreme Court. So it has been definitely fixed (as it had heretofore been) by the Supreme Court, the Court of Civil Appeals, and this court that the State under the police power has the right to prohibit any occupation or calling, or the sale of any article, that is harmful to society as a whole. For a list of authorities see Caswell Smith v. State, supra, Ex parte Townsend, and Edmandson v. State, supra, all of which have been decided recently.

The motion for rehearing is overruled.

Overruled.