Bowman v. State

• Decision Date: 26 May 1897
• Parties: BOWMAN v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 796

BOWMAN v. STATE.

Court of Criminal Appeals of Texas.

May 26, 1897.

Appeal from Coleman county court; B. F. Rose, Judge.

Frank Bowman was convicted of violating the local option law, and appeals. Affirmed.

Sims & Snodgrass, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of violating the local option law in precinct No. 1 of Coleman county, and his punishment assessed at a fine of $25 and 20 days' imprisonment in the county jail; hence this appeal.

The court did not err in refusing to quash the information in this case. See Key v. State (Tex. Cr. App.) 38 S. W. 773.

Appellant contends that the act of the legislature under which the question of local option was submitted to the voters of precinct No. 1 in Coleman county is unconstitutional and void, because the constitution authorizes the submission to the voters of the county whether the sale of intoxicants shall be prohibited within the prescribed limits; and it is contended that the act of the legislature which authorizes the submission of the question to the people is unconstitutional, because said act, in effect, authorizes the submission to the people of the question of prohibiting all sales of intoxicating liquors, except for sacramental and medicinal purposes, thus authorizing the people to vote, not on the question of the absolute prohibition of the sale of liquor, which the constitution authorizes, but authorizes them to vote on the regulation of sales, or, in other words, to vote to prohibit sales, except for certain specified purposes. Section 20, art. 16, of the constitution, is in the following language: "The legislature shall at its first session enact a law, whereby the qualified voters of any county, justice precinct, town or city (or such subdivision of a county as may be designated by the commissioners' court of said county) may by a majority vote determine from time to time whether the sale of intoxicating liquor shall be prohibited within the prescribed limits." The act of the legislature regarding local option authorizes the submission of the question of local option to a vote of the people, and this is without restriction or limitation. See Rev. St. 1895, art. 3384. Article 3388, in providing for said submission, requires two character of tickets to be voted at said election, one indorsed, "For Prohibition," and the other, "Against Prohibition." This submission is in exact conformity with the provisions of the constitution, and the fact that the legislature has also seen fit to enact "that said vote, when taken, and the majority has declared in favor of prohibition, shall not be construed to prohibit the sale of wines for sacramental purposes, nor alcoholic stimulants, as medicines," etc., does not nullify the submission of the question, which, as before stated, is in conformity with the constitution. The question, as we understand it is not now before us, whether or not the sale for sacramental or medicinal purposes is prohibited by law. The sale in question was not for such a purpose. Whether or not it is the province of the legislature to construe said constitutional provision, or to put a construction upon the vote cast so as to authorize the sale of intoxicating liquors for certain purposes, is not now before us. The construction of the constitution or of a statute is not a matter for the legislature, but for the judiciary. The act authorizing the submission of the question of local option to be voted upon, as stated above, is in accord with the constitution; and article 3385, Rev. St. 1895, is in the nature of a proviso. It would be entirely competent, in construing said act, to uphold that portion of same authorizing the submission of the question as in consonance with the constitution, and to reject that portion of the act which is in the nature of a proviso.

Concede, however, that the constitutional question is here presented; that is, that the act of the legislature authorizing a submission of the question of local option to be voted on by counties, precincts, etc., authorized them to vote, not a total prohibition, but a partial prohibition (that is, that the real question voted on by the people of the precinct in question was, as claimed by appellant, to prohibit the sale of intoxicating liquors, etc., save and except for medicinal and sacramental purposes); then let us see how the matter stands. The contention of appellant, as we understand it, is that the legislature, under the constitution, had only the power to submit the question of the total prohibition of all sales of intoxicating liquor within the local option district, and that when they submitted the question of prohibition the proviso in favor of the sale of intoxicants for medicinal purposes, and wines for sacramental purposes, was beyond their power, and rendered the whole law null and void. In our opinion, such an act would not be violative of said constitutional provision. It is a familar rule of construction, applicable alike to statutes and constitutions, that all laws are to be construed with reference to the existing evils to be remedied. In passing the constitutional provision in question, there was no existing evil in a sale of intoxicants as medicines or for sacramental purposes. By reference to the history of those times, it will be seen that the restriction and abolition of saloons was the subject aimed at. Drunkenness and its attendant evils were...