Ex Parte Davis

• Decision Date: 14 May 1919
• Docket Number: (No. 5354.)
• Citation: 215 S.W. 341
• Parties: Ex parte DAVIS.
• Court: Texas Court of Criminal Appeals

215 S.W. 341

Ex parte DAVIS.

(No. 5354.)

Court of Criminal Appeals of Texas.

May 14, 1919.

Dissenting Opinion, October 25, 1919.

Application for habeas corpus on behalf of Ed Davis. Application dismissed.

Scott & Fagan, of Dallas, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

The relator is charged with unlawfully manufacturing intoxicating liquors. He claims that the law denouncing this offense is void. Section 1, c. 24, Acts 35th Legislature, Fourth Called Session, is as follows:

"The manufacture of spirituous, vinous, or malt liquors or medicated bitters capable of producing intoxication—except for medicinal, scientific, mechanical, and sacramental purposes —is hereby prohibited within this state."

The legislative power of the state is by article 3, § 1, of the Constitution, vested in the Legislature, and, except as restricted by other provisions of the Constitution, the Legislature may exert all of the police power of the state, including the prohibition of the manufacture and sale of intoxicating liquors. Joyce on Intox. Liquors, § 83; Rippey v. United States, 193 U. S. 504, 24 Sup. Ct. 516, 48 L. Ed. 767; Mugler v. Kansas, 123 U. S. 625, 8 Sup. Ct. 273, 31 L. Ed. 205; Rose's Notes on U. S. Reports (Rev. Ed.) vol. 13, p. 1183; Kansas v. Durein, 70 Kan. 1, 78 Pac. 152, 15 L. R. A. (N. S.) 909 and note.

Section 20, art. 16, of the Constitution, declares that—

"The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice's precinct, town, 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 liquors shall be prohibited within the prescribed limits."

We have held that this provision prescribed the exclusive means of putting in force a law prohibiting the sales of such liquors, and that the Legislature was not authorized to pass and enforce a law ignoring the power conferred upon the qualified voters of the counties and districts to decide the matter at an election. Ex parte Myer, 207 S. W. 100.

In reaching that conclusion we were controlled by the principle that the clause of the Constitution mentioned conferred upon the qualified voters of the counties and districts named a legislative function; that of deciding whether a law prohibiting the sale of liquor should operate, and from time to time whether it should continue to do so. State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166; Ex parte Mitchell, 177 S. W. 953; Lyle v. State, 80 Tex. Cr. R. 606, 193 S. W. 680.

To the extent that the legislative power is conferred on such qualified voters, it is withheld from the Legislature; but with respect to prohibiting the manufacture of intoxicating liquors, the Constitution does not, as in the case of sales, point out the manner in which it shall be made, nor confer any option upon the people to decide the matter by their votes, and the restriction of the general power of the Legislature touching the prohibition of sales is not to be extended to deny the power to prohibit the manufacture of intoxicants. Baldwin v. State, 21 Tex. App. 293, 3 S. W. 109.

The fact that an express direction necessarily restricting the power of the Legislature touching the prohibition of sales of liquor is embraced in the Constitution, and no restriction expressed therein on the power to prohibit the manufacture of such liquors, indicated that in that particular the Legislature is unfettered.

The theory that section 20, art. 16, of the Constitution, withdraws entirely from the Legislature the right to exert the police power over the control of intoxicating liquors, has been rejected by the courts of this state in numerous instances. In Dupree's Case, 102 Tex. 455, 119 S. W. 301, it is said:

"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. * * * 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 methods to the law making power."

In the case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, the question before the court was the validity of a statute prohibiting the pursuit of the business of selling intoxicating liquors in prohibition territory, This statute was upheld in an opinion citing numerous precedents upon the principle that, while section 20, art. 16, of the Constitution, designated an exclusive method by which the sale of intoxicating liquor might be prohibited, it did not further restrict the power of the Legislature over the subject of intoxicating liquor. The act is so drawn, both as to separation of its parts and express declaration, that the invalidity of one section does not vitiate the whole law. Ex parte Towles, 48 Tex. 413; State v. Duncan, Ann. Cas. 1916D, 1, note.

The contention that the practical effect of the prohibition of the manufacture in the state would retard or render inconvenient the conduct of the business of selling such liquors, and that for that reason would be an indirect violation of section 20, art. 16, of the Constitution, we think is not sound. That subdivision of the Constitution does not confer upon the individual citizen any vested right in the sale of intoxicating liquors. It, as above stated, only confers a political right and legislative power, upon the citizens of the districts named, to decide at an election whether a law prohibiting the sales of such liquors shall be effective within the prescribed limits, and from time to time whether it shall remain so. There is no inherent right in a citizen to sell intoxicating liquors. It is not a guaranteed privilege of a citizen of the state or of the Union. Joyce on Intox. Liquors, §§ 77 and 87; Ruling Case Law, vol. 15, p. 259; 23 Cyc. 75. In prohibiting the manufacture of such liquors the Legislature, in our opinion, exercises a part of the police power embraced within the general power conferred upon the Legislature by the Constitution, and the fact that there is imposed a limitation upon the power of the Legislature to enforce another phase of the police power—that of prohibiting sales—does not imply a denial of its power to prohibit the manufacture of such liquors.

"The courts are not at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words. `When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument.'" Cooley's Const. Limitations, p. 204; Long v. State, 58 Tex. Cr. R. 212, 127 S. W. 208, 21 Ann. Cas. 405.

The relator contends, however, that the act is condemned by the fact that it was passed at a special session of the Legislature and relates to a subject not presented by the Governor. Section 8 of article 4, relating to the authority of the Governor to call an extra session, says:

"His proclamation therefor shall state specifically the purpose for which the Legislature is convened."

And section 40 of article 3 provides that 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. The Governor in his proclamation enumerated the following purposes: To enact a law to prohibit the sale of intoxicating liquors within ten miles of an army camp, to prohibit the sale of such liquors by any persons without a license, and to punish violations by felony, to prohibit the sale of such liquors to any person in uniform or enlisted in the military service. In a subsequent message the Governor elaborated his views upon the subjects mentioned, and in the course of his message used 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 in 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 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."

The construction placed upon the provisions of the Constitution mentioned, with reference to the special session of the Legislature, is that it is confined to the subjects for legislation presented by the Governor, but that it is not restricted in its discretion in the selection of methods and means of effecting the purposes which are embraced within the subject submitted. Long v. State, 58 Tex. Cr. R. 209, 127 S. W. 208, 21 Ann. Cas. 405; Brown v. State, 32 Tex. Cr. R. 132, 22 S. W. 596. In the case last mentioned it is said:

"It was not necessary, nor would it have been proper, for the Governor, in his proclamation, to have suggested, in detail, the legislation desired. It was for the Legislature to determine what the legislation should be."

In Baldwin's Case, 21 Tex. App. 592, 3 S. W. 109, this court said:

"One of the purposes of convening the Legislature in special session is stated in said proclamation to be, `to reduce the taxes, both ad valorem and occupation, so far as it may be found consistent with the support of an efficient State government.' This, it seems...