Ex Parte Hollingsworth

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Morrow
• Citation: Ex Parte Hollingsworth, 203 S.W. 1102, 83 Tex.Cr.R. 400 (Tex. Crim. App. 1918)
• Decision Date: 22 May 1918
• Docket Number: (No. 5027.)
• Parties: Ex parte HOLLINGSWORTH.

203 S.W. 1102

Ex parte HOLLINGSWORTH.

(No. 5027.)

Court of Criminal Appeals of Texas.

May 22, 1918.

Original application for habeas corpus on relation of G. H. Hollingsworth. Application dismissed.

McLean, Scott & McLean and Leonard M. Levy, all of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Relator, restrained under a complaint charging, in substance, that he sold intoxicating liquors in Tarrant county, in time of war between the United States and the German Empire, within ten miles of a United States military camp designated as Camp Bowie, seeks release by original application for habeas corpus on the ground that the act of the Legislature upon which the prosecution is based is in conflict with the state Constitution, and is also in conflict with the law of Congress. The section of the act of the Texas Legislature involved is as follows:

"From and after April 15, 1918, it shall be unlawful for any person in time of war between the United States and any other nation or country to sell, barter or exchange any spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, within ten miles of any part of the land or buildings occupied or controlled by the government of the United States, or any department thereof, and used as a fort, arsenal, training camp, quarters, or place where soldiers are, or may hereafter, be camped, stationed, or quartered; aviation field or school where soldiers, sailors, marines, or aviators are being quartered, drilled, or trained for service in any branch of the United States army or navy, except as herein provided."

Section 5 of the act makes a violation of the provisions of the act a felony punishable by confinement in the state penitentiary for a term of not less than two nor more than five years, without the benefit of the suspended sentence.

The application, after charging that the relator is held by the sheriff of Tarrant county, on a warrant issued by reason of the complaint mentioned, and setting out the constitutional provisions with which it is charged to be in conflict, contains the following:

"Relator further shows to the court that that portion of Tarrant county. Tex., wherein the offense is alleged to have been committed, has not heretofore adopted local option, and the sale of liquors has been lawfully pursued therein for many years continuously up to and including the 15th day of April, 1918, and but for the inhibition of said act above referred to, such acts were and are lawful."

No other facts are set out or proved, but those alleged are conceded to be true.

The act of Congress is chapter 15, First Session of the Sixty-Fifth Congress (40 Stat. p. 76), approved May 18, 1917, entitled, "An act to authorize the President to increase temporarily the military establishment of the United States." Section 12 of the act contains the following:

"That the President of the United States, as Commander-in-Chief of the army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to the officers and enlisted men of the army as he may from time to time deem necessary or advisable."

This section also declares a violation of such regulations if made would be a misdemeanor, punished with a fine not exceeding $1,000 or imprisonment for not more than 12 months, or both. Pursuant to this authority the President of the United States made an order that alcoholic liquor shall not be sold, given, served, delivered or shipped into the zone created, as follows:

"1. There is hereby established a zone five miles wide, circumjacent to the boundaries of every military camp (except that within the existing limits of an incorporated city or town the zone shall not include any territory more than one-half mile from the nearest boundary of such camp)."

From a careful investigation of the subject we state the conclusion that the section of the act of the Legislature upon which the prosecution is founded, in its application to the locality in which the alleged offense took place, was not inhibited by the act of Congress, nor the order of the President thereunder. The act of Congress rests upon the clause of the United States Constitution granting power to raise and maintain armies, and upon that subject is supreme and exclusive of state authority. The state possesses no military power further than that given by the Constitution, relating to its militia and to repel invasion. The war and military power is vested in Congress. U. S. Const. art. 1, § 8; Tarble's Case, 13 Wall. 397, 20 L. Ed. 597; U. S. Const. art. 4, § 4. The state possesses the power to regulate intoxicating liquors within its domain, and this is exclusive of the power of Congress save to the extent that regulations on the subject may be necessary in the exercise of of some other power vested in Congress by the Constitution. Cooley, Const. Lim. (7th Ed.) p. 834; U. S. v. De Witt, 9 Wall. 41, 19 L. Ed. 593. Applied to the present matter, the power of the state, through its constitutional and legislative methods of regulation of the sale and use of intoxicating liquors, obtains throughout the state, except in so far as it may be modified or superseded by the President's order made as an incident to the enforcement of the power of Congress over its armies. The analogy of the rules declared by the Supreme Court of the United States applicable to the power of Congress over the subject of interstate commerce to the exercise of the power involved in this proceeding is not complete. The cases of Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Railway v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Railway v. New York, 233 U. S. 671, 34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138, and numerous others cited by relator, declare the power of Congress over the subject of interstate commerce exclusive, and that when Congress acts all state laws touching interstate commerce are superseded, and in instances the inference from inaction by Congress leads to the same result.

Unlike the subject of intoxicating liquors upon which the state's power is complete, regulation of interstate commerce is not within the scope of the police power of the state. There appears to be a distinction between the power under the interstate commerce clause, where the power of Congress is exclusive, and a regulation of Congress incidental to its military power affecting the subject of intoxicating liquors peculiarly within the domain of state legislation. Even in the construction of police regulations of the state, which incidentally indirectly affect interstate commerce, the rigid rule applied in the cases cited by relator is not enforced. Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182. Illustrative is the expression of the Supreme Court in upholding a police regulation with reference to diseased cattle, which incidentally affected the subject of interstate commerce upon which there existed a federal statute. The court said:

"This question must of course be determined with reference to the settled rule that a statute enacted in execution of a reserve power of the state is not to be regarded as inconsistent with an act of Congress passed in the execution of a clear power under the Constitution, unless the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or stand together." Ry. v. Hober, 169 U. S. 613, 18 Sup. Ct. 488, 42 L. Ed. 878.

So in the case of Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108, making a similar ruling, the court said:

"It should never be held that Congress intends to supersede or, by its legislation, suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said—and the principle has often been reaffirmed—that, in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserve power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together."

Other federal authorities are Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75; McLean v. Railway, 203 U. S. 38, 27 Sup. Ct. 1, 51 L. Ed. 78; Atlantic Coast Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230; Railway v. Eubanks, 184 U. S. 27, 22 Sup. Ct. 277, 46 L. Ed. 416; Asbell v. Kansas, 209 U. S. 251, 28 Sup. Ct. 485, 52 L. Ed. 778, 14 Ann. Cas. 1101.

The act of Congress is indicative of the intent to regulate the prohibition of alcoholic liquors near the military camps and to officers and enlisted men of the army as deemed necessary and advisable by the President. The extent to which the President has deemed it necessary and advisable to make such regulations is embraced in his order establishing a zone around military camps. This order we think is expressive of the extent to which Congress has entered the legislative field of and control of intoxicating liquors. It has not, by entering the field to this limited extent, as incidental to the enforcement of the power granted by Congress to raise and maintain armies, ousted the state from its jurisdiction of the remainder of its domain, nor annulled therein the prohibition laws enacted under the local option clause of the Constitution, nor the regulations in nonprohibition territory prescribed by statute. Savage v. Jones, supra.

Section 13 of the same act of Congress is the same, in substance, as section 12, supra, save that section 13 authorizes the military authorities to prohibit bawdyhouses near military camps. An order establishing a zone within which such prohibition was effective was before the federal court in Ohio, and from the opinion we quote the following:

"That the state in the exercise of its...