Ellison v. Texas Liquor Control Board

• Decision Date: 31 July 1941
• Docket Number: No. 11315.,11315.
• Citation: 154 S.W.2d 322
• Parties: ELLISON et al. v. TEXAS LIQUOR CONTROL BOARD et al.
• Court: Texas Court of Appeals

154 S.W.2d 322

ELLISON et al. v. TEXAS LIQUOR CONTROL BOARD et al.

No. 11315.

Court of Civil Appeals of Texas. Galveston.

July 31, 1941.

Rehearing Denied October 2, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Walker County; Max Rogers, C. G. Dibrell, and Lex Smith, Judges.

Class suit by F. V. Ellison and others for and on behalf of druggists in dry areas holding permits under Texas Liquor Control Act to sell liquor for medicinal purposes, and for physicians, against the Texas Liquor Control Board and others, to have declared unconstitutional an act of the Forty-Seventh Legislature further regulating the prescribing of liquor for medicinal purposes and transportation, storage, and sale thereof, and to restrain the enforcement of the provisions thereof, wherein the Red Arrow Freight Lines, Incorporated, intervened. From an adverse judgment, plaintiffs and intervener appeal.

Judgment affirmed and temporary restraining order dissolved.

Rawlings & Sayers, Nelson Scurlock and Scott Daly, all of Fort Worth, and A. T. McKinney and Gordon M. Burns, both of Huntsville, for appellants.

Gerald C. Mann, Atty. Gen., Geo. W. Barcus, M. C. Martin, Fred Chandler, and Ocie Speer, Asst. Attys. Gen., and E. J. Miller, of Brownwood, for appellees.

CODY, Justice.

This suit was brought by appellants, plaintiffs below, to have declared unconstitutional, and to restrain the enforcement of the provisions of, House Bill No. 373 enacted by the Forty-Seventh Legislature, Vernon's Ann.P.C. art 666—15 (11, 18, 19). The suit was brought as a class suit for and on behalf of druggists in dry areas holding permits under the Texas Liquor Control Act, before the passage of House Bill No.373, to sell liquor for medicinal purposes, and for physicians. The Red Arrow Freight Lines, Inc., a common carrier, intervened in the suit attacking the provisions of House Bill No. 373 as unconstitutional which makes it unlawful for a carrier to hold or store liquor consigned to the holder of a medicinal permit for a longer period than seventy-two hours; the suit was brought against appellees, which include all law enforcement officers of the State as well as the Texas Liquor Control Board, its administrator and agents. The court below granted a temporary restraining order against the enforcement of the act, and thereafter the case was tried in the district court of Walker County before the Honorable Max Rogers, Judge thereof, who invited to sit and consult with him at the hearing the Honorable Charles G. Dibrell and Lex Smith, District Judges. The court rendered judgment for appellees, and the judgment shows that the temporary restraining order theretofore granted had expired by its own terms. The plaintiffs and intervenor have duly perfected their appeals to this Court. A temporary restraining order was by this court, on July 14, 1941, granted against the enforcement of the act during the pendency of the appeal.

The validity of the statute is attacked on these grounds: (1) That the act is an amendment of Section 15, Article 1, of the Texas Liquor Control Act, but, appellants contend, the Legislature failed to re-enact and publish at length the amended section as required by the Constitution; (2) that the caption of the act is misleading and deceptive and not germane to the subject thereof; (3) that the bill in the form in which it was signed by the Governor was not actually passed by both houses of the Legislature as required by the Constitution; (4) that the Legislature was without power to pass an act in the guise of a regulatory measure which imposes upon the people in dry areas more onerous burdens, penalties and forfeitures than existed at the time local option was adopted in such dry areas; and (5) that numerous provisions of the statute were invalid because they were unreasonable and discriminatory and deprived the plaintiffs and intervener of their constitutional and inherent rights.

It is the universal rule of construction of statutes, when their constitutionality is challenged, that they shall be construed, wherever possible and consistent with reason, so that they may be held to be constitutional. Eppstein v. State, 105 Tex. 35, 143 S.W. 144; Trustees of Independent School District v. Johnson County Democratic Executive Committee, 122 Tex. 48, 52 S.W.2d 71; Joliff v. State, 53 Tex.Cr. R. 61, 109 S.W. 176; Brown v. State, 57 Tex.Cr.R. 269, 122 S.W. 565; Joy v. City of Terrell, Tex.Civ.App., 138 S.W. 213, error refused. It will be borne in mind, without further reference in this opinion to said rule of construction, that in passing upon the points raised by this record, we are applying this rule.

The caption of the act, which appellants contend is misleading and deceptive and violative of Section 35, Article III, of the Constitution, Vernon's Ann.St. reads: "An Act further regulating the prescribing of liquor for medicinal purposes and transportation, storage, and sale thereof, by amending Subsections (11) and (18) of Section 15, Article I, Chapter 467, Acts of the Second Called Session of the Forty-fourth Legislature, as amended by House Bill No.5, Acts of the Regular Session of the Forty-fifth Legislature, and by the addition of a new Subsection (19) to said Section 15, Article I; prescribing penalties; providing saving clause; and declaring an emergency."

The following portions of H.B.373 are quoted to show how subsections (11), (18), and (19) are tied into the Texas Liquor Control Act:

Section 1 of H.B.373, reads, in part, as follows:

"Section 1. That Subsection (18), Section 15, Article I, Chapter 467, Acts of the Second Called Session of the Forty-fourth Legislature, as amended by House Bill No. 5, acts of the Regular Session of the Forty-fifth Legislature, be further amended so as to hereafter read as follows:

"`(18) Medicinal Permits. The owner of a pharmacy properly qualified as a pharmacy * * *.'"

Section 2 of H.B.373 reads, in part, as follows:

"Sec. 2. Amend Section 15, Article I, Chapter 467, Acts of the Second Called Session of the Forty-fourth Legislature, as amended by House Bill No. 5, Acts of the regular Session of the Forty-fifth Legislature, by the addition of a new subsection (19), to read as follows:

"`(19) Physician's Permits. A physician licensed by the State Board of Medical Examiners, authorizing the administration * * *.'

"Sec. 3. Amend Subsection (11), Section 15, Article I, Chapter 467, Acts of the Second Called Session of the Forty-fourth Legislature, as amended by House Bill No.5, Acts of the Regular Session of the Forty-fifth Legislature, so as to hereafter read as follows:

"`(11) Carrier Permit. The word "carrier" when used in this Section shall mean and include water carriers, * * *.'"

Now when reference is had to H.B.No.5 of the Regular Session of the Forty-Fifth Legislature, Subsection (18), which it is the purpose and intention of Section 1 of H.B.373 to amend, is unmistakably identified; and the effect of H.B.373 is to amend said subsection (18) of H.B.No.5, by substituting in its place said subsection as it stands amended in H.B.No.373. In H.B. No.5, aforesaid, the subsection (18)— which is amended by Sec. 1 of H.B.373, aforesaid—is identified exactly as referred to in and by said H.B.373.

What has been stated with reference to subsection (18) is equally true of subsection (11).

And when we refer back to the caption or title to H.B.373 it is seen that the title states the act is one amending subsections (11) and (18) of Section 15, Article I, Chapter 467, Acts of the Second Called Session of the 44th Legislature, as amended by H.B.No.5, Acts of the Regular Session of the 45th Legislature. It is difficult to think of language that would more clearly convey the meaning which is expressed by the words employed in said caption. We therefore overrule appellants' contention that the act is unconstitutional because of alleged violation of Section 35, Article III, of the Constitution.

Appellants contend that the act is void because it violates Section 36, Article III of the Constitution, which reads: "No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length."

It is not meant by this provision that every act which amends the statutory law shall set out at length the entire law as amended. Under such a rule, legislation would in many instances be impracticable. "`The practice which it was the purpose of the provision in question to prohibit was that of amending a statute by referring to its title, and by providing that it should be amended by adding to or striking out certain words, or by omitting certain language and inserting in lieu thereof certain other words. * * *'" Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061, as approved and quoted in Clark v. Finley, 93 Tex. 171, 54 S.W. 343, 345. See also 59 C.J., p. 879, § 462. And subsection (18) and subsection (11), as amended and re-enacted and published at length as a part of H.B.373, comply with the requirements of Article III, Section 36, of the Constitution; and subsections (18) and (11) are sections within the meaning of said constitutional provisions. It is for convenience, and to avoid confusion, that said "sections" are termed by the Legislature "subsections".

It was not required by said constitutional provision, Section 36, Article III, that the Legislature re-enact and republish that portion of the Texas Liquor Control Act which is designated by the Act as Section 15 thereof, simply because "subsections" (11) and (18), which were amended and re-enacted and published at length, are identified and designated as "subsections (11) and (18) of Section 15, Article I, Chapter 467, Acts of the Second Called Session of the Forty-Fourth Legislature, as amended by House Bill No.5, Acts of the Regular Session of the Forty-fifth Legislature." As already stated, these "subsections" are sections, and if the Texas...