Ex Parte Brown

Appellant was charged by information in the County Court of Williamson County with violating what is known as the "Cold Storage Act." He was arrested under said information, and sued out a writ of habeas corpus before the county judge, who, after hearing the case, remanded the applicant to the custody of the sheriff to answer said information; and from said order defendant prosecutes this appeal.

The contention of appellant is that the Act of the Twenty-fifth Legislature (page 128) entitled "An act to define and prevent cold storage in a local option county, precinct, city, town, or subdivision of a county, and to affix a penalty for running, keeping, or maintaining them in such county, city or town, or subdivision," is unconstitutional and void. We understand the grounds of his contention to be that said act is void (1) because the caption of said act is not in accordance with section 35 of article 3 of the Constitution; (2) because the act itself is an invasion of the rights of private property, not authorized by the Constitution; (3) that said act is violative of section 20 of article 16 of our State Constitution (said section known as the "Local Option Clause").

Without quoting in extenso the act in question, we will condense the provisions of said act. In section 1 an attempt is made to define what a cold storage is. It provides: (1) That any building, etc., in any local option district, which may be kept or maintained for the purpose of storing, cooling, or keeping intoxicating liquors, etc., for others, is a cold storage; (2) or any building, etc., in any local option district, which shall be used or kept to store or keep for any other person than the owner any intoxicating liquors, etc., is a cold storage; (3) or any such building, etc., in any local option district, where the agent, owner, etc., may solicit or take any orders from others for intoxicating liquors, to be sent or delivered to such owner, etc., for the person giving such order, shall constitute a cold storage. The second section of said act provides, substantially: (1) That any owner, agent, etc., who shall keep, etc., any cold storage house, or be interested in keeping the same, in any local option district, shall be guilty of a misdemeanor, etc. (2) Any person who shall solicit or take orders for any intoxicating liquors to be sent or shipped to any person who may keep, etc., or be interested in the keeping, etc., of any cold storage in any local option district, shall be guilty of a misdemeanor, and fined not less than $100 nor more than $500, and, in addition thereto, shall be imprisoned in the county jail not less than twenty-five nor more than one hundred days. Section 3 provides, if any owner, etc., of any cold storage, where local option is in force, shall solicit or take any order for intoxicating liquors to be shipped or sent into any such local option district, and such intoxicating liquors shall be shipped or sent therein by reason of such order, that the same shall constitute a sale in such local option district.

The information against appellant charges that, in a local option district, "he was the owner and proprietor and the agent and employe of the owner and proprietor of a cold storage, and was interested in the keeping, maintaining, and managing a cold storage within said justice precinct, and that he did then and there solicit and take orders for intoxicating liquors to be shipped to a person who then and there kept, maintained, and managed a cold storage, and to be shipped to the agent and employe of a cold storage, and in the care of the proprietor, agent, and employe of a cold storage."

We are not inclined to regard said act as violative of section 35 of article 3 of the Constitution, as, in our opinion, the title sufficiently embraces the subject matter of the act. The effect of the act, however, is to make criminal the act of any person who may keep or maintain a house in a local option district for the storage, keeping, or cooling of intoxicating liquors for others, or the owner, proprietor, etc., of any building, etc., which shall be used to store such intoxicating liquors for others than the owner, for it makes criminal the act of any person who, as owner, proprietor, etc., may solicit orders from others for intoxicating liquors to be sent or delivered to such owner, etc.; that is, it proposes to make criminal the act of keeping or storing any intoxicating liquors for others than the owner of such building, in any house, building, etc., in any district where local option is in force.

If we had no provision of the Constitution on the subject of local option, we believe that this act would be unconstitutional, as an invasion of the fundamental right of a citizen to the free use and exercise of property, and that the Legislature would not be authorized, under the guise of a police regulation, to so interfere with the enjoyment on the part of the citizen of his property rights. Intoxicating liquors are regarded as property, both in the State and nation, and it is not necessary to refer to acts of legislation or decisions of the courts in which intoxicating liquors are so regarded. Furthermore, we have a distinct constitutional provision on the subject of the power of the Legislature in regard to the liquor traffic. That constitutional provision is as follows: "The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice precinct, town, city, or such subdivision of a county as may be designated by the commissioners court of such county, may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits." Const., art. 16, sec. 20. It occurs to us that this expression of the will of the people on the subject is exclusive of any other method to be pursued by the Legislature. Whatever may be said as to the power of the Legislatures of other States, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor traffic under the general police power, the same does not apply with us. We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned. See Holley v. State, 14 Texas Crim. App., 505; Stallworth v. State, 16 Texas Crim. App., 345; Steele v. State, 19 Texas Crim. App., 425; Ninenger v. State, 25 Texas Crim. App., 449.

In State v. Gilman (West Virginia), reported in 10 Southeastern Reporter, 283, almost the identical question here presented came before that court; and the views of the learned judge who delivered the opinion are so well expressed that we give them in full: "Has the Legislature of this State the constitutional power to make such an act a crime? The fourteenth amendment to the Constitution of the United States declares: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;' and the same amendment makes all persons born or naturalized in the United States citizens thereof. It is conceded that the 'privileges and immunities' here protected are such only as are in their nature fundamental — such as belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States of the Union, from the time of their becoming free, independent, and sovereign. What these fundamental rights are it is not easy to enumerate, the courts preferring not to describe and define them in a general classification, but to decide each case as it may arise. The following, however, have been held to be embraced among them: 'Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general good of the whole.' Washington, J., in Corfield v. Coryell, 4 Wash. C. C., 380, Fed. Cas., No. 3230. Connor v. Elliott, 18 How., 591; In re Parrott, 6 Sawy., 349, 1 Fed. 481, 6 Meyers Fed. Dec., sec. 1000; Butchers' Union Slaughter-house Co. v. Crescent City Livestock Landing Co., 111 U.S. 746, 4 Sup. Ct., 652. These are inalienable and indefeasible rights, which no man, or set of men, by even the largest majority, can take from the citizen. They are absolute and inherent in the people, and all free governments must recognize and respect them. Therefore it is incumbent upon the courts to give to the constitutional provisions which guaranty them a liberal construction, and to hold inoperative and void all statutes which attempt to destroy or interfere with them. Cool. Const. Lim. (35), 44. It can hardly be questioned that the right to possess property is one of these rights, and that that right embraces the privilege of a citizen to keep in his possession property for another. It is not denied that the keeping of property which is injurious to the lives, health, or comfort of all persons may be prohibited under the police power. The maxim, 'Sic utere tuo ut alienum non laedas,' being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. But it does not follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police power of the State; and much less is such the case when the statute is merely claimed by its defenders to be intended for that purpose. The court, in its opinion in Mugler v. Kansas, says: 'The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.' 123 U.S. 661, 8 Sup.Ct., 273. The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public; and therefore the statute prohibiting such keeping in possession is not a legitimate exercise of the police power. It is an abridgement of the privileges and immunities of the citizen, without any legal justification, and therefore void. But it seems to me the said provision of the statute is in violation of that provision of our State Constitution which declarer that 'laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this State.' Art. 6, sec. 46. While it is admitted to be a well-settled principle that the Legislature has the same unlimited power in regard to legislation which resides in the British Parliament, except where it is restrained either by the State or Federal Constitutions, still it is equally true that these constitutional limitations are not confined to express inhibitions, for there are but few positive restraints upon the legislative power contained in the Constitution. The third article, or 'Bill of Rights' lays down the ancient limitations which have always been considered essential in a constitutional government, whether monarchial or popular; and there are scattered through the instrument some other express provisions in restraint of legislative authority. But the affirmative prescriptions and general arrangements of the Constitution are far more fruitful of restraints upon the legislative power. Every positive direction contains an implication against everything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, and the erection of the principal courts of justice, create implied limitations upon the law-making authority, as strong as though a negative was expressed in each instance. Cool. Const. Lim., 87; People v. Draper, 15 N.Y. 543. If the people had not made the provision above quoted a part of the Constitution, the Legislature would, so far as that instrument is concerned, have had plenary and unrestricted authority to deal with liquors in any manner it chose to do. But the people, by declaring that 'laws may be passed regulating or prohibiting the sale of intoxicating liquors,' according to the principles we have announced, imposed a restraint upon this plenary power. By granting an express authority to the Legislature to regulate or prohibit the sale, there is an implied inhibition to the exercise of any authority in respect to that subject which is not embraced in the grant. This rule is simply an application of the old maxim, 'Expressio unius est exclusio alterius,' which Lord Bacon concisely explains by saying: 'As exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.' The express power here given to regulate or prohibit the sale of liquors, unless it was intended to limit the legislative authority, would render this provision of the Constitution wholly nugatory and useless, because, as we have seen, without this provision the Legislature would have had plenary power over the whole subject. It could not only have legislated in respect to the prohibition and sale of liquors, but in all other respects. It seems to me, therefore, that the purpose and effect of this constitutional provision was and is to restrict and limit the legislative authority to the powers expressly granted therein — that is, to the power to regulate or prohibit the sale of liquors; and consequently a legislative act not within the legitimate scope of this express grant, unless it is a fair and reasonable exercise of the police power, must be held unconstitutional and void."

We entirely concur with the principles enunciated in the foregoing opinion, and their application to the question in this case is obvious; and we accordingly hold the attempt of the Legislature to make the keeping of liquor by one citizen for another, in a local option territory, whether in a house, tent, or anywhere else, and whether for a consideration or without a consideration, a crime, or the attempt on the part of the Legislature to make it criminal for a person who may be the owner or proprietor of any building, etc., in a local option territory, to solicit or take an order from another person for intoxicating liquors, to be sent or delivered to the proprietor or owner of such house for the person giving such order, to be without authority of law, as violative of the citizen's fundamental right to us his own property as he pleases, not injuring another person; and that it is not competent for the Legislature, under its power of police regulation, to impair the legal ownership and holding of one's property, either by himself or by another person.

We further hold that the act in question, applicable alone to local option territory, is violative of the express provisions of our Constitution on the subject. If this law could be enforced in such local option territory, then a minister or any member of any of the various churches who should hold or keep wine at his residence or any house under his control, for the purpose of being used by the members of his church in the administration of the Lord's Supper, would be guilty of keeping a cold storage, for he would come under the terms of the law which inhibits the keeping of intoxicating liquors for others. This illustration will serve to show the futility of legislation to hamper or prevent the use or ownership of one's property for a purpose that is not inhibited by the constitutional provision on the subject. That provision inhibits the sale only and was evidently intended by the people to mark the limitation of power of the Legislature on that subject. The people, in saying that a sale of intoxicating liquors might be prohibited, deny to the Legislature the power to otherwise interfere with its use; and the cold storage act was an attempted interference with the use of intoxicating liquors in local option territory, not authorized or warranted by the Constitution, and we accordingly hold it illegal and void, and it is therefore ordered that the relator be discharged.

Reversed, and relator ordered discharged.

HURT, Presiding Judge, absent.