Ex Parte Flake

• Decision Date: 11 October 1911
• Citation: 149 S.W. 146
• Parties: Ex parte FLAKE.
• Court: Texas Court of Criminal Appeals

149 S.W. 146

Ex parte FLAKE.

Court of Criminal Appeals of Texas.

October 11, 1911.

On Motion for Rehearing, June 26, 1912.

Original writ of habeas corpus by Tom Flake to obtain discharge from arrest under an indictment for keeping a cold storage in prohibition territory. Relator remanded.

S. C. Padelford and Odell & Johnson, all of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Relator was indicted by the grand jury of Johnson county, charged with the offense of unlawfully pursuing the business of keeping, maintaining, and operating what is commonly known as a cold storage, where intoxicating liquors were kept on deposit for others, in a county in which the sale of intoxicating liquors had been prohibited. Upon being arrested, he sued out a writ of habeas corpus, in his application contending that the law under which he was indicted was unconstitutional and void on the several grounds alleged in his application, each of which we will discuss hereafter.

The act in question reads as follows: "In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, association of persons and corporations that pursue the business of keeping, maintaining or operating what is commonly known as a `cold storage' or any place by whatever name known or whether named or not, where intoxicating or nonintoxicating liquors or beverages are kept on deposit for others, or where any such liquors are kept for others under any kind or character of bailment, an annual state tax of two thousand ($2,000.00) dollars. Counties, incorporated cities and towns, where such business is located, may each levy an annual tax of not exceeding one thousand ($1,000.00) dollars upon each such place so kept, run, maintained or operated." Section 2, Acts of 31st Legislature, c. 20, p. 53. Section 3 of said act provides for the application to be filed with the county clerk, and the conditions upon which he will issue a license.

Relator contends this is a tax for revenue, and not a police regulation. When we take into consideration the history of such laws and regulations, the purpose and the intention of the Legislature in enacting them, and the entire act, of which this section is a portion, together with other laws and regulations passed at that session of the Legislature, we do not think the contention can be maintained. It is a matter of current history, known of all men, that such places had been established in that portion of our state where the sale of intoxicating liquors had been prohibited, and in many instances had been used as a blind or cover whereby the illegal sale of intoxicants might be indulged in by the keeper and manager. When we take these things into consideration, the amount of license fee or tax, and, as said by relator, which is beyond the amount that could reasonably be expected to be realized annually in pursuing the business, no person, we think, can seriously contend that the Legislature intended this as a revenue measure, but that it is one of the regulations passed in aid of the enforcement of the local prohibitory law, and to remove one of the evils that had proven a serious impediment to the enforcement of the local option law wherever adopted. We hold that it is not an exercise of the taxing power, but a police regulation, and in discussing the different grounds in relator's application we will treat the law as a police regulation, and not a tax for revenue purposes.

In the first ground relator contends the law is unconstitutional and violates and is inimical to the fourteenth amendment of the Constitution of the United States. In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, the Supreme Court of the United States says in holding it the right of the state to pass police regulations: "This conclusion is unavoidable, unless the fourteenth amendment of the Constitution takes from the states of the Union those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. 359, 28 L. Ed. 923, that the fourteenth amendment had no such effect." In that case it is said: "But neither the amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people." That the regulation of intoxicating liquors is within this power has been affirmed by all the courts. In what is termed the License Cases, 5 How. 504, 12 L. Ed. 256, the United States Supreme Court says: "The police power extends, not only to things intrinsically dangerous to the public health, such as infected rags and diseased meats, but to things which, when used in a lawful manner, are subjects of property and commerce, and yet may be used so as to be injurious or dangerous to the life, the health, or the morals of the people. Gunpowder, for instance, is a subject of commerce, and of lawful use, yet because of its explosive and dangerous quality all admit the state may regulate its keeping and sale. And there is no article which the right of a state to control or prohibit the manufacture of within its limits is better established than intoxicating liquors. This power is inherent in a sovereign state, and may be exercised unless the Constitution of the state inhibits it in so doing." Our Constitution specifically provides a mode whereby it may be determined whether or not the sale of intoxicating liquors shall be prohibited in a given territory, and, where the people elect to so decide, by this clause of the Constitution no power is taken from the state to enforce it, but we deem it the duty of the Legislature to enact all necessary laws to accomplish that end.

The second contention is that the act is inimical to and violates section 35, art. 3, of the Constitution of this state, in that it contains more than one subject. We do not think this contention well founded, for, if we view it as a police regulation, it embraces but one subject, object, and purpose—the regulation and prohibition of the liquor traffic in territory where it has been prohibited. For a discussion of this question, see Ex parte Walsh, 59 Tex. Cr. R. 409, 129 S. W. 118, and authorities cited.

It is also contended that the act is violative of our Constitution, in that it deprives the citizens of the state of Texas and all other persons of the equal right of pursuing the occupation and business of cold storage within the local option districts. The law bears equally on all citizens who seek to do the character of business defined in the act—makes no exceptions. The same restrictions are placed around each applicant, and any citizen meeting the requirements can obtain a license to pursue the business.

The contention is made that the act is in violation of section 13, art. 1, of the Constitution, in that it imposes excessive fines and penalties and cruel and unusual punishment. The courts of this state have sustained the law making it a felony to sell a single drink of intoxicating liquor in the prohibited territory, and this in making the failure to pay the fee required to obtain a license a misdemeanor, assessing a fine in double the amount of that sum as the penalty for its violation, is the usual penalty prescribed for failure to pay the fees assessed under our occupation tax and license laws.

The next contention is it is violative of and inimical to section 19, art. 1, of the Constitution, in that "it deprives citizens of Texas of their property rights, privileges, and immunity of following such occupations, and so exercising the rights of a free man, and deprives the citizens of this state of said property rights, privileges, and immunities, the license fee being so large as to be prohibitive of the business."

In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, the Supreme Court of the United States declares the law to be: "It is, however, contended, that, although the state may prohibit the manufacture of intoxicating liquors for sale or barter within her limits for general use as a beverage, `no convention or Legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others.' The argument made in support of the first branch of this proposition, briefly stated, is that in the implied compact between the state and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty, or property without due process of law, and with which the state cannot interfere, that among those rights is that of manufacturing for one's use either food or drink, and that while, according to the doctrines of the commune, the state may control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself. It will be observed that the proposition, and the argument made in support of it, equally concede that the right to manufacture drink for one's personal use is subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself by legislation...