Dupree v. State

• Decision Date: 19 May 1909
• Citation: 119 S.W. 301
• Parties: DUPREE et al. v. STATE.
• Court: Texas Supreme Court

Page 301

119 S.W. 301

DUPREE et al. v. STATE.

Supreme Court of Texas.

May 19, 1909.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by the State of Texas against J. M. Dupree and others. There was a judgment for the state, which was reversed by the Court of Civil Appeals (107 S. W. 926), and it certifies questions to the Supreme Court. Questions answered.

G. N. Harrison and J. W. Wayman, for appellants. R. V. Davidson, Atty. Gen., and Jas. D. Walthall, Asst. Atty. Gen., for the State.

WILLIAMS, J.

The questions in this case are presented by a certificate from the Court of Civil Appeals for the Third District, and involve the constitutionality of those provisions of the act of the Legislature approved April 5, 1907 (Laws 1907, p. 156, c. 77), which authorize the issuance of warrants to search places wherein intoxicating liquors are kept for sale in violation of law and the seizure and confiscation of the liquors and other property mentioned in the statute. The certificate shows: That a warrant was sued out to search a place named in it; that liquors were seized under it and replevined by Dupree; that the prescribed steps were afterwards taken, resulting in a judgment in favor of the state against appellant for the amount named in the replevin bond; and that all of the proceedings were conducted in substantial compliance with the statute. The questions stated in the certificate for decision are as follows: (1) Are the provisions of the act in sections 2 to 9, inclusive, in conflict with sections 9 and 19 of the Bill of Rights; and (2) if so, may a recovery nevertheless be had on the replevy bond as a common-law obligation? The certificate states only the question as to a conflict between the sections of the Constitution named in it and the statute, and, at first blush, would seem not to raise some of the questions discussed by counsel for appellants under section 20 of article 16; but as section 19 of the Bill of Rights forbids the taking of the property of the citizen except by due course of law, and as there is no law which authorizes such a taking as that here in question, unless this statute be such, if that statute for any reason should be held void, it would follow that the taking was without due course of law. Hence the certificate authorizes us to consider the objections urged against the statute under the other provision.

The contention that would go farthest in its consequences, if sustained, is that by section 20 of article 16 the Legislature is deprived of any power it might have, in the absence of such a provision, to pass a law like that in question to make it unlawful merely to keep intoxicating liquors for the purpose of selling them in violation of law and to confiscate them when they are found to be so kept. This contention is based upon the construction of that provision by which it is treated as an affirmative delimitation of the power which the Legislature may exercise in the prohibition of the use of intoxicating liquor, defining the extent of that power, and operating, by implication, as a denial of any other prohibitory power than that expressly granted. That theory of construction is stated and applied in the case of Holley v. State, 14 Tex. App. 505, and in many subsequent decisions of the Court of Criminal Appeals, which are based upon a well-known rule for the construction of Constitutions. It is unnecessary to enter into any discussion of it here. The power affirmatively granted by the Constitution and fully recognized in those decisions is that to prohibit, through the prescribed procedure, the sale of intoxicating liquor, and that is all this statute seeks to accomplish. It deals with nothing except the keeping of liquors for the purpose of sale. The proposition that only sales may be prohibited has sometimes been thought to imply the further one that the prohibition can only be enforced by denouncing and punishing as an offense the completed sale. This restricts the power granted within too narrow limits, as we had occasion to hold in Ex parte Dupree, 105 S. W. 493. The purpose of the prohibition is to prevent the thing prohibited, and this provision of the Constitution prescribes no scheme of legislation by which that is to be done, but leaves the choice of the methods to the lawmaking power. There is nothing whatever in the provision which, in our opinion, should be construed as denying the power to prevent the sales which are prohibited by any legitimate remedies appropriate to that end. Prevention of crime is one of the objects to which the most anxious thoughts and the most constant efforts of thoughtful legislators are directed, and the dealing with the steps preparatory to commission is a favorite method. Our Codes are full of instances of this, too numerous and too familiar to need citation.

It is unnecessary, in view of the extensive discussion which the application of this principle in prohibitory legislation has occasioned in other states, that we should enlarge upon it at any length. From the many expressions of it, we quote that of Chief Justice Shaw of Massachusetts in the case of Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 387, an authority upon which appellants so strongly rely to support some of their other contentions: "We think it manifest that the Legislature, in this system of measures, proposes to accomplish one and the same object, by two distinct modes of proceeding. The general is to prevent or diminish the evils of intemperance, by the punishment of an indiscriminate sale of spirituous liquors; but the particular purpose in this series of measures is to prevent such liquors from being kept in any place, by any person, for the purpose or with the intent that they shall be sold. Although crimes and offenses punishable by law consist in acts done, and not in mere unexecuted purposes and intentions, yet, the more effectually to accomplish the great and salutary purpose of laws necessary to the well-being of society, acts and conduct which would be innocent or indifferent in themselves are often declared unlawful, and made punishable, if done with an intent and purpose which will render them noxious or dangerous, and where, should the law wait till the criminal intent is carried out into action, irremediable mischief will be done. The law is preventive as well as remedial. Thus a person may innocently have in his possession counterfeit coin or bank notes; but if he has them in his possession with intent to pass them as true, knowing them to be counterfeit, the intention qualifies the act, and such act may be justly made punishable. This is the foundation of many criminal enactments. The principle is too familiar to require extended illustration."

It is conceded by practically all of the authorities to be within the power of Legislatures, untrammeled by such constitutional provisions as ours, to enforce their prohibition of the sale of intoxicating liquors by arresting the preparation for such sales and forfeiting and destroying the liquors kept and intended to be sold in violation of law. But our Constitution fully and unconditionally authorizes the prohibition of sales in that territory in which the voters, in accordance with the law submitting the question to them have determined that such sales shall be prohibited, and leaves the Legislature unhampered as to the means and methods by which the prohibition may be made effectual. When that upon which the power to prohibit is conditioned, i. e., the decision of the voters in the authorized subdivisions, has taken place, the power of the Legislature to adopt laws to enforce the prohibition, so far as this provision of the Constitution affects it, is as complete as such a power is anywhere. So no reason is found in this provision to prevent the adoption of such measures of prevention as are everywhere recognized as being within the proper sphere of legislative power. Of course such measures must conform to the limitation upon legislative action found in other parts of the Constitution, as must all laws touching the person and the property of the citizen; and this brings us to the consideration of objections against the statute based upon the provisions of the Bill of Rights.

The first section of the act defines as common nuisances: (1) Any place, room, or building, kept, maintained or used for the purpose of selling intoxicating liquor in violation of law, in a county, justice precinct, town, city or designated subdivision of a county, in which the sale of intoxicating liquor has been prohibited; (2) any intoxicating liquor kept or possessed for such purpose, whether kept or possessed in such place, room, etc., or elsewhere; (3) certain named classes of things used as aids in keeping and maintaining such place, etc., or such liquor.

The second section is as follows: "Upon affidavit being made by any creditable person of the county, where the proceeding is begun before the county judge or a justice of the peace of said county, describing the place, room, or building where it is believed by the affiant that intoxicating liquor is being sold in violation of law, or is being kept or possessed for the purpose of being sold in violation of law, or shall name or describe if the name is unknown, any person who has, keeps or possesses any intoxicating liquor for the purpose of sale in violation of law, then and in either event it shall be the duty of such county judge or justice of the peace, as the case may be, to issue a warrant commanding the sheriff or any constable of the county to immediately search such place, room or building, describing the same, or such person giving name or description, and it shall be the duty of said officer to whom said warrant is delivered by the county judge or justice of the peace to immediately search such place, room, or building or such person, and if refused admission into any such place, room, or building or into any place,...