Ex Parte Davis

Relator was charged with manufacturing intoxicants in violation of an Act passed by the Fourth Called Session of the Thirty-fifth Legislature, p. 37, which prohibits the sale, manufacture, transportation and solicitation of orders for sale of intoxicants. This legislation had for its central thought and controlling and only purpose making Texas a completely "dry" State, and the abrogation of the local option provision of the Constitution, which is Article 16, Section 20. To make this effective, the sale, manufacture, shipment, and solicitation of orders involving sales were prohibited. The evident purpose was to completely substitute Article 16, Section 20, supra, by this piece of legislation. The prohibition of the sale, manufacture, transportation and solicitation of orders for selling was only incidental to the main purpose, which was placing under complete prohibition the State in its entirety. The prohibition of sale would not and could not accomplish this. It was, therefore, necessary to include the other inhibitions. The section of the Act prohibiting the sale was held to be unconstitutional in Ex parte Myer, 84 Tex.Crim. Rep., 207 S.W. Rep., 100, as being in conflict with and the attempted abrogation of said Article 16, Section 20, supra, with its downfall the other inhibitions passed. They were so interwoven with and necessary to prevent selling that they could not legally stand. These provisions are not severable. Western Union Telegraph Co. v. State, 62 Tex. 630; Ex parte Massey, 49 Tex.Crim. Rep.; State v. Hamey, 65 S.W. Rep., 949; Ex parte Woods, 52 Tex.Crim. Rep..

The Act under consideration cannot be regarded as a regulation. It is drastic in its prohibitory requirements, and leaves nothing to regulate, unless it be as applied to intoxicants to be used in sacramental, scientific, medicinal and mechanical purposes. At the same called session there were other Acts passed prohibiting and regulating the sale of intoxicants. One of these, the zone law, was held to be regulatory. Ex parte Hollingsworth,83 Tex. Crim. 400, 203 S.W. Rep., 1102. Two other acts, pp. 9 and 10, prohibited selling without license. These latter Acts amended previous statutes so as to change them from misdemeanors to felonies. Another Act, p. 36, amended Article 7447, Rev. Civ. Stats., as therein stated, so as to prohibit license under circumstances stated in the Act. Another Act, p. 57, prohibits transportation of intoxicants into local option territory with stated exceptions and exemptions. These are all in conflict with the State-wide Act, and in conflict with other statutes of prior Legislatures, and with each other.

That the Legislature cannot repeal Article 16, Section 20 of the Constitution, is placed beyond discussion. All decisions so hold. Robertson v. State, 5 Texas Crim. App., 155; Holly v. State, 14 Texas Crim. App., 505; Dawson v. State, 25 Texas Crim. App., 670; Lewis v. State, 58 Tex.Crim. Rep.; Ex parte Myer, 84 Tex.Crim. Rep., 207 S.W. Rep., 100; State v. Texas Brewing Co., 106 Tex. 121; Ex parte Dupree, 101 Tex. 150 [101 Tex. 150]; Dupree v. State, 102 Tex. 455 [102 Tex. 455]. Legislation in aid of its enforcement may be enacted, but none in conflict can be sustained. See above cited cases.

The Act under consideration applies to the State in its entirety by the legislative enactment, while Article 16, Section 20, applies locally to counties and subdivisions, and made operative only by referendum vote, which is the exercise of primary sovereignty. State v. Texas Brewing Co., supra, and other cases above cited. When thus tested local option laws have the same force and effect as the Constitution itself, and are placed beyond the police power to annul or repeal. Same authorities. Partial prohibition under Article 16, Section 20, and total statutory prohibition for the State, cannot exist at the same time. The Constitution is supreme and must prevail. Statutory prohibition must fail. The Constitution set the limit for prohibition, and limits the Legislature. It limits also the Governor in relation to called session of the legislature.

Prior to the enactment of this Act it was legal to solicit for sales and ship from regulated territories into prohibition districts, and even to sell in prohibition districts under specified exceptions and license tax. Rev. Civil Statutes, Articles cited later herein. State v. Texas Brewing Co., 106 Tex. 121; Bruce v. State, 35 Tex.Crim. Rep.; Ex parte Massey, 49 Tex. Crim. 62; Snearly v. State, 40 Tex.Crim. Rep.; Edmonson v. State, 64 Tex.Crim. Rep.; Keller v. State, 87 S.W. Rep., 661; Parker v. State, 48 Tex.Crim. Rep.; Golightly v. State, 49 Tex.Crim. Rep.. For further cases see 5 Rose's Notes, p. 1095.

Chief Justice Brown, in State v. Texas Brewing Company, supra, speaking of the inviolability of the local option law, said:

"All powers of government reside in the people; and the officials of the different departments exercise delegated authority; . . . These departments and officials do not act, nor can they as from original authority or power. All are subordinate to the Constitution, and it to the ``inherent power of the people.'" He further said: "But the section of the Constitution quoted provides a method — a referendum — by which the voters of a given territory may exercise the sovereign power of legislating upon this subject, which places the law adopted by them above legislative authority, as if it had been embraced in the Constitution, and we must so consider the local option law adopted by the voters of Clay county, for that, like the Constitution, is the exercise of primary sovereignty; therefore what is prohibited by the local option law to be done in Clay county, as to sale of intoxicating liquors, cannot be authorized by the Legislature to be done there." Our Constitution nowhere provides for, authorizes, or even contemplates laws for prohibition, or local option in any territory within the State or subdivision thereof, except and only by the voters of the same. It is beyond the power of the Legislature to negative this provision. Ex parte Myer, supra, and other cases.

The Act under consideration is attempted prohibition legislation in direct opposition to and subversive of the local option laws where operative, and is an attempt to abrogate and render nugatory Article 16, Section 20. The Legislature is powerless to enact prohibition in any portion of the State. Ex parte Hollingsworth, and Ex parte Myer, supra, Article 16, Section 20, monopolizes the subject. This Act does not stop here. It repeals all license laws pertaining to intoxicants, even those passed at the same session. Acts Fourth Called Session, Thirty-fifth Legislature, Sec. 6b, p. 39. It is there provided that, "on and after the taking effect of this Act, no officer or court of this State shall be authorized to issue or renew any license purporting to authorize the sale of spirituous, vinous or malt liquors, or medicated bitters, capable of producing intoxication, except as provided in this Act, and all licenses heretofore issued for such sale and out standing when this act becomes effective shall become null and of no effect." This is emphatic language, sweeping in purpose, and if legal, complete in its effect. It would, if valid, cancel all such licenses and tax, and inhibit further license or tax. Among other laws coming within this repealing clause is that which levies and authorizes license in local option territory for soliciting orders for sale of intoxicants. Rev. Civil Stats., Art. 7479. The law authorizing keeping cold storages in such territory. Rev. Civil Stats., Art. 7480, as well as handling shipments under C.O.D. Same, Art. 7483. It would repeal statutes authorizing shipments into such territory when sale occurred in regulated territory. Same, Arts. 7379, 7393, 7394; Arts. 606, 606g, 662i. I Vernon's Ann. P.C., p. 326; 1 Branch's Ann. P.C., p. 718, and those statutes which permitted the specified sales in Rev. Civil Stats., Arts. 7428, 7429, 7430, 7431, as well as the authorized license therefor. Same, Art. 7467. It would abrogate the granted authority for soliciting orders for sale in such territory after paying the authorized tax and securing license for such purpose. Same, Art. 7479. It would repeal Revised Civil Statutes, Art. 7432, Branch's P.C., Art. 613, p. 727; 1 Vernon's Ann. P.C., Art. 606n, p. 326, which exempts those engaged in the "planting or growing of a vineyard to ship, transport, carry or deliver, any grape juice or wine made by him from grapes so grown to any person within the limits of any territory in this State in which the sale of intoxicating liquors is permitted under the laws of this State." It would abolish Art. 140 Branch's P.C., p. 400, which punishes officers for failure of duty in regard to collecting required taxes and issuing necessary license to sell intoxicants. It would repeal all statutes permitting and authorizing sale of intoxicants in non-local option territory at wholesale and retail. Branch's Ann. P.C., Arts. 611, 612, pp. 724, 725, and those enactments by the same called session, pp. 9, 10 and 36. It would extinguish all bonds required from dealers in intoxicants. These statutes are regulatory in their nature and provisions, and require licenses issued authorizing such business. Under Sec. 6b these were rendered inoperative — repealed.

In Sec. 7, however, of the same Act, p. 39, it is further enacted that: "This act shall be cumulative of all laws in force in the State of Texas, and of all acts of the Fourth CalledSpecial Session of the Thirty-fifth Legislature prohibiting andregulating the sale of intoxicating liquors, and it is expresslyprovided that no law now in force in this State prohibiting orregulating the sale of intoxicating liquors, or any act of the Fourth Called Special Session of the Thirty-fifth Legislatureprohibiting or regulating the sale of intoxicating liquors is repealed hereby, but all such laws and acts shall remain in fullforce and effect."

Secs. 6-b and 7 of the State wide Act are contradictory and directly in conflict with each other. They cannot both stand. Nor is it possible to reconcile this sweeping repealing section 6-b with Section 7 which expressly sets it at naught, and perpetuates all laws the former section repealed. These incongruities and conflicts, repugnances and want of definiteness and coherence would render the act invalid. Branchs Ann. P.C. Arts. 1, 3, 6 and 9, and authorities thereunder collated; French v. State, 14 Texas Crim. App., 76. It is also in conflict with the transportation act of the same Legislature, p. 57. This latter Act applies to local option territory which the State-wide repeals.

Again, the central point around which all sections of this Act revolve and in which the whole Act centers is absolute prohibition throughout the State. Without it none of its provisions would have found place, and were only enacted to carry out the main purpose to enact and put in force State-wide prohibition. They were not intended to be and are not severable. When the several parts of an act are dependent one upon the other so that it cannot be presumed the Legislature would have passed it without intending that all should stand, then the whole act must fall if a part is unconstitutional. Western U.T. Co. v. State, 62 Tex. 630; Ex parte Massey, 49 Tex.Crim. Rep., 65; State v. Hamey, 65 S.W. Rep., 949; Ex parte Woods,52 Tex. Crim. 575. For this reason the Act is invalid. Much stronger would the reasoning be where all the provisions were a part of and necessary to the main and only purpose of the legislation.

There is another reason why this Act is unconstitutional and void. It was passed at a called session of the Legislature. The Governor issuing his proclamation did not specify the matter of State-wide prohibition, nor the manufacture, transportation, or solicitation for sale of intoxicants as connected with such prohibition, either Statewide or local option, as required by Article 4, Section 8, of the Constitution. It ordains that, "The Governor may, on extraordinary occasions, convene the Legislature . . . His proclamation therefore shall statespecifically the purpose for which the legislature is convened." Nor did he while that body was in session authorize it to enact such legislation. Const., Art. 3, Sec. 4. That section provides that: "When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session, or presented to them by the governor; and no such session shall be of longer duration than thirty days."

An inspection of the proclamation issued by the Governor and his communications with and to the Legislature do not disclose any suggestion from him that he submitted for their consideration the matters contained in the provisions of the State wide prohibition act. Neither does it directly nor indirectly include the question of local option. His nearest approach to such matter is to be found in the following language:

"I am not unmindful of the fact that as a means of accomplishing the results here sought many people advocate statutory state-wide prohibition, with more or less confidence of its ultimate success. I do not assume for a moment to pass judgment upon the constitutionality of such a law, yet all admit that eminent lawyers have expressed the opinion that a law along this line is in conflict with the Constitution of the State.

"The zone law, however, is deemed to be in the nature of a regulatory rather than a prohibitory act, and involves merely the exercise of that police power with which the State is fully clothed do deal with the barter, sale and exchange of liquor. In other words, it is indicated that statutory prohibition would offer the possibility of vigorous contest in the courts, while a zone law would not be open to successful attack through court procedure.

"The need of the hour is immediate for efficient suppression of an admitted evil. The measure that is strong because of its certainty is to be preferred over a measure that in reaching too far may incur the risk of failing entirely.'

A fair construction of this language does not convey but excludes the idea and conclusion that the Governor submitted or intended to submit State-wide prohibition, or the manufacture of intoxicants, for legislative action. It does not allude even to local option legislation. It rather fixes the conclusion that he neither submitted, nor intended to submit either. He limited the suggestion to the matter of a zone law. His language is all sufficiently plain why he submitted one and did not and would not submit the other matters. There was no reason for submitting the zone law had he submitted State-wide prohibition, for the State-wide act would have completely covered every inch of State territory, and if valid would have prevented sales to every one, soldier or citizen, within the State's entire limits. There could have been no possible reason for a zone law if State-wide prohibition was enacted. State-wide acts cover all territory; zone laws but a limited section. They are in direct conflict, one being only regulatory, the other severely prohibitory. Their purposes were totally repugnant with each other.

Article 3, section 40, supra, is mandatory, has been so held, and should be. Casino v. State, 34 Tex.Crim. Rep.; Ex parte Wolters, 64 Tex.Crim. Rep.; Wells v. Mo. Pac. Ry., 19 S.W. Rep., 530. It is useless to cite other cases in support of that proposition. The cases of Brown v. State, 32 Tex. Crim. 119, and Long v. State, 58 Tex.Crim. Rep., harmonize with and support the stated proposition. In the Long case Judge Ramsey, speaking for the court, said: "The case of Casino v. State, supra, is also authority for the proposition that this section is mandatory (speaking of Art. 3, sec. 40), and that where an Act has been passed at a special session on a subject not embraced in the Governor's proclamation, his approval cannot make it valid, and that an act passed at such special session within the purview of such call is, and by the courts will be declared to be, unconstitutional. By inference, if not directly, this view is sustained by the case of Brown v. State, 32 Tex. Crim. 119. The approval of the Act by the Governor adds no sanctity to the legislation. In his approval of the act he expressly states he did not authorize such act, but adopted it on account of "the superior wisdom of the Legislature" in passing it.

No rule of fair intendment or construction should hold otherwise if mandatory provisions of the Constitution are to obtain or be maintained, and no such rule would bring the statutory State wide Act within the Governor's proclamation or communication with the Legislature in the language he employed in regard to the zone matter. The conclusion cannot be justified that the language mentioned intended a zone law should be enacted covering the State in its entirety, even as a regulatory measure much less as State wide prohibition. The purpose of the zone law was to regulate zones, and for this purpose only was it submitted by the Governor. If it can be held that the Governor approved this act, such approval did not validate the act or justify its passage. Casino v. State, supra; Wells v. Mo. Pac. Ry., 19 S.W. Rep., 530. For same discussion of the Governor's approval of this act, see dissent in Ex parte Fulton, 86 Tex.Crim. Rep..

There are other interesting questions, but enough has been said to show that the State wide act, including the manufacturing phase, is unconstitutional and void. All phases of the amendment of the Constitution substituting Article 16, Section 20, in recent election are here pretermitted from discussion.

The applicant ought to be ordered discharged.