Ex Parte Fulton

• Decision Date: 14 May 1919
• Docket Number: (No. 5337.)
• Citation: 215 S.W. 331
• Parties: Ex parte FULTON.
• Court: Texas Court of Criminal Appeals

215 S.W. 331

Ex parte FULTON.

(No. 5337.)

Court of Criminal Appeals of Texas.

May 14, 1919.

Original application for a writ of habeas corpus by A. M. Fulton. Application dismissed and relator remanded to custody of sheriff.

Puckitt, Mount & Newberry, of Dallas, for appellant.

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

MORROW, J.

This is an original application for a writ of habeas corpus. The record discloses that at the time of the offense charged, the sale of intoxicating liquors was prohibited throughout Dallas county by the adoption of the local option law. It is charged in separate counts of the indictment that relator "did have and keep" intoxicating liquors in a public road in Dallas county, and that in said county he unlawfully transported such liquors for other than sacramental, medicinal, mechanical, or scientific purposes. He demands release on the proposition that "to have or keep" intoxicating liquors in a public road in prohibited territory, or to transport such liquor in such territory, is not illegal when not intended for an illegal or unlawful use.

Both counts in the indictment relate to alleged violations of the amended Allison Shipping Law, embodied in chapter 67, Acts 33d Leg. and chapter 31, Acts 35th Leg. 4th Called Session, wherein it is declared unlawful "to have or keep" intoxicating liquors for personal use or otherwise in a public road or other public place in a district in the state in which the local option prohibition law is in force, and also prohibits the transportation of such liquors in such district, each of said provisions containing exceptions, namely, that it is not unlawful "to have or keep" such liquors in the home, nor to personally carry it into such district for personal use.

It affirmatively appears that the offense charged took place in Dallas county in which at the time the sale of intoxicating liquors was prohibited by the adoption of the local option prohibition law by vote of the people in accord with the Constitution and Laws of the state. The right and power of the Legislature to pass the laws mentioned is challenged. The reason for relator's contention is not made quite clear to the writer. His references to chapter 24, Acts 35th Leg. 4th Called Session, the state-wide prohibition law, occur to the writer as not pertinent, for the reason that the Allison law, supra, was passed at the same session of the Legislature at which the state-wide law was passed, and, the Allison law having special reference to those areas in the state in which the sale of intoxicants was prohibited under the local option law, its provisions with reference to the shipment and transportation would prevail in such territory over any provisions in chapter 24, supra, upon the same subject. Such is the effect of the rule that in the construction of acts of the same session of the Legislature the whole must be taken and construed as one act. Cain v. State, 20 Tex. 355; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176.

In view of the construction given section 20, art. 16, of the Constitution by this court and the Supreme Court in various decisions rendered, we are unable to concur in the suggestion that the limitation upon the legislative power therein contained would have the effect of condemning the law in question. That that section is restrictive of the method of prohibiting sales of such liquors is held in Ex parte Myer, 207 S. W. 100, to which we are referred, but that that restriction is not extended to prevent the Legislature from passing laws in aid of the enforcement of the prohibition against sales, has been so often declared that its reassertion would seem superfluous were it not done in response to the points urged by the learned and able counsel for the relator. The laws in question were, in the opinion of the Legislature, adapted to making the enforcement of the local option prohibition law in districts in which it was in force more effective. With that end in view the transportation into such territory and the keeping in a public place therein, with the exceptions named, have been denounced as a felony. The principle that would condemn them was involved against the so-called blind tiger law which, to the same end and by similar means, fixed a penalty for the sale of such liquors in prohibited territories by means of a blind tiger, which penalty was in excess of that for making sales under the local option law. The contention was answered by the court in the following terse language by the present presiding judge:

"We think the statute defining and prohibiting the sale of liquor by means of a blind tiger is not violative of a constitutional provision, and it is within the power of the Legislature to prohibit sales of intoxicants in this manner, and prescribe a higher punishment for this character of sale than is provided against other characters of sale." Schwulst v. State, 52 Tex. Cr. R. 427, 108 S. W. 698.

The Supreme Court, in passing upon the power of the Legislature to authorize the use of the writ of injunction by officials as an auxiliary to the enforcement of the local option law, affirmed the existence of such power. Ex parte Dupree, 101 Tex. 150, 105 S. W. 493. And in Dupree v. State, 102 Tex. 455, 119 S. W. 301, 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 same principle was applied in Snearley's Case, 40 Tex. Cr. R. 510, 52 S. W. 547, 53 S. W. 696, in which a license regulation applicable to the sale of intoxicating liquors for the purposes permitted by the local option statute in prohibited territory was upheld; and in Fitch v. State, 58 Tex. Cr. R. 377, 127 S. W. 1040, the court rejected the contention here made touching the extent of the restriction imposed on the Legislature by section 20, article 16, in giving sanction to the law which created the offense of pursuing the business of unlawfully selling intoxicating liquors in prohibited territory and fixing a punishment therefor more severe than that imposed under the local option law for making individual sales of such liquors. While at the time they were rendered there was expressed a conflict of views by members of the court in Snearley's Case and in the Fitch Case, these decisions have been uniformly followed (Gearheart v. State, 81 Tex. Cr. R. 540, 197 S. W. 187), and the correctness of the Schwulst Case, supra, has not been challenged.

We are referred by counsel to Ex parte Hopkins, 75 Tex. Cr. R. 611, 171 S. W. 1163, and to Longmire v. State, 75 Tex. Cr. R. 616, 171 S. W. 1165, Ann. Cas. 1917A, 726. In these cases the original Allison Act (chapter 67, Acts 33d Leg.) was construed; and, while there was lack of harmony among the judges touching its provisions, the conclusion reached by the majority, so far as it bears upon the present question, was that it was within the legislative power to provide that the citizen could not carry intoxicating liquors into districts of the state in which the sale was prohibited, except for his personal use or for that of members of his family. That the provisions of the law in question, with the limitations named, are not obnoxious to the Constitution of the United States is, we think, demonstrated by the enactment of the so-called Webb-Kenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699 [U. S. Comp. St. § 8739]) by Congress and its enforcement and construction by the United States Supreme Court. An example is found in Clark Distilling Co. v. Western M. & R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845. The question arose upon the application of the Webb-Kenyon Law to a statute of West Virginia, which is quite similar to the statute in question, in that it made unlawful the having or keeping of intoxicating liquors in a public place for personal use or otherwise, and also prohibited their transportation. The Supreme Court held that the extreme provisions of the state law in question did not render inoperative, upon shipments of intoxicants to the state of West Virginia, the act of Congress. From the decision we take the following quotation:

"It is only necessary to point out that the considerations which we have stated dispose of all contentions that the Webb-Kenyon Act is repugnant to the due process clause of the Fifth Amendment, since what we have said concerning that clause in the Fourteenth Amendment as applied to state power is decisive.

"Before concluding, we come to consider what we deem to be arguments of inconvenience which are relied upon, that is, the dread expressed that the power by regulation to allow state prohibitions to attach to the movements of intoxicants lays the basis for subjecting interstate commerce in all articles to state control, and therefore destroys the Constitution. The want of force in the suggested inconvenience becomes patent by considering the principle which after all dominates and controls the question here presented; that is, the subject regulated and the extreme power to which that power may be subjected. The fact that regulations of liquor have been upheld in numberless instances which would have been repugnant to the great guaranties of the Constitution but for the enlarged right possessed by government to regulate liquor has never, that we are aware of, been taken as offording the basis for the thought that government might exert an enlarged power as to subjects to which under the constitutional guaranties such enlarged power could not be applied. In other words, the exceptional nature of the subject here regulated is that basis upon which the exceptional power exerted must rest and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guaranties of ...