Ex Parte Brown

• Citation: 42 S.W. 554
• Parties: Ex parte BROWN.
• Decision Date: 10 November 1897
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

42 S.W. 554

Ex parte BROWN.

Court of Criminal Appeals of Texas.

November 10, 1897.

Appeal from Williamson county court; W. F. Robertson, Judge.

Henry Brown appeals from an order in habeas corpus proceedings remanding him to custody. Reversed.

W. W. Nelms, for appellant. Mann Trice, for the State.

HENDERSON, J.

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 25th 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 25 nor more than 100 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 employé 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 employé of a cold storage, and in the care of the proprietor, agent, and employé 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, § 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 Tex. App. 505; Stalworth v. State, 16 Tex. App. 345; Steele v. State, 19 Tex. App. 425; Ninenger v. State, 25 Tex. App. 449, 18 S. W. 480.

In State v. Gilman (W. Va.), reported in 10 S. E. 283, almost the identical question here presented came before that court; and the views...