Ex Parte Hopkins

• Citation: 171 S.W. 1163
• Decision Date: 16 December 1914
• Docket Number: (No. 3352.)
• Parties: Ex parte HOPKINS.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1163

171 S.W. 1163

Ex parte HOPKINS.

(No. 3352.)

Court of Criminal Appeals of Texas.

December 16, 1914.

Original application by Lewis Hopkins for writ of habeas corpus. Relator ordered discharged.

Capps, Cantey, Hanger & Short, of Ft. Worth, and John T. Smith, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Applicant was arrested for violating what is known as the Allison Act, found on page 62 of the Acts of the Called Session of the Thirty-Third Legislature. Applicant, as a friend and agent, bought for and carried a bottle of whisky to his friend, bought with the money of his friend, who wanted it for his individual use and not for any illegal purpose. This constitutes the agreed case. It is unnecessary to give further details. In what I shall have to say I will not discuss the general police power of the Legislature.

The Allison Act, as it is called, provides, in sections 2, 3, and 4, that "except as otherwise provided in this act it shall be unlawful for any person, firm or corporation, or any officer, agent or employé thereof in this state" to deliver, receive, transport, or carry any intoxicating liquors to any other person, firm, corporation, or any agent or employé thereof in this state.

It is provided in section 5 of the act that it shall be unlawful for any of these parties living without the state of Texas to convey to any one in Texas intoxicants into local option territory, when such intoxicating liquors are intended by any person interested therein to be received, possessed, sold, or in any manner used in violation of any law of Texas.

Section 6 provides it shall be unlawful to solicit in local option territory or take orders for intoxicating liquors in said territory. Then follows those acts which are said in the act to be not unlawful.

Section 7 provides that certain parties shall not be prohibited from receiving alcohol for use of his or their business. This applies to educational and eleemosynary institutions, and manufacturers and their employés, as well as druggists, provided its use shall be confined to the business and institutions mentioned.

Section 8 provides as follows:

"Nothing in this act shall make it unlawful for any person licensed or authorized under the laws of this state to sell spirituous, vinous or malt liquors, to ship, transport, carry or deliver such liquors to any person within the limits of the territory wherein the sale of intoxicating liquors is permitted under the laws of this state."

Section 8a permits the parties to make wine from their own grapes and to ship under circumstances mentioned in that section.

Section 9 provides it shall not be unlawful for any person for the use of himself or members of his family residing with him to personally carry such liquors.

Section 10 provides that it shall not be unlawful for any person, firm, or corporation, etc., to ship, transport, carry, or deliver intoxicating liquor to any person authorized or licensed under the laws of this state to sell spirituous, vinous, or malt liquors (including dealers licensed and authorized under the laws of this state to sell such liquor for medicinal purposes on prescription in local option territory; and section 11 authorizes priests and ministers to ship when used for sacramental purposes in quantities of one gallon or less). These are provisions of the act thought necessary to be noticed.

So it will be seen by sections 2, 3, and 4 that it is unlawful to ship, transport, or carry intoxicating liquors between points in Texas. This applies to the state generally, except as otherwise provided in the act. Sections 7, 8, 8a, 9, and 10 provide instances in which it is not unlawful to carry or transport intoxicants. So we have it that the Legislature has provided certain things shall be unlawful, and certain things shall not be unlawful. If the act had remained as sections 2, 3, and 4 provided, if they are legal and constitutional, intoxicating liquors could not be transported from one point to another point in Texas under any circumstances; but, when we go to the other sections, we find that it is lawful to ship intoxicating liquors under certain circumstances and for certain purposes. By the terms of section 8 it is not unlawful for any person licensed or authorized under the laws of this state to sell spirituous, vinous, or malt liquors, to ship or transport or carry or deliver such liquors to any person within the limits of the territory wherein the sale of intoxicating liquors is permitted under the laws of this state. As we understand the laws as they apply to the sale of intoxicating liquors, there is no point in Texas where intoxicating liquors may not be sold under some circumstances. In local option territory it is permitted to be sold under certain circumstances. It may there be sold under a license system on prescription, which is recognized by section 10 of the Allison Act to be an existing law, and wine may there be sold for sacramental purposes. So whether it be local option or anti-local option territory, it is permissible to sell under circumstances mentioned in the different statutes at any point in the state. It will be noticed that section 8 does not say the parties must have taken out the license either in wet or dry territory, but, if the sale is permitted under the laws of the state, the shipment under the Allison Act can occur. The permission to do a thing is one thing; doing the thing permitted is another thing. It would seem from the terms of this section that a party may ship from one point in Texas to another point in Texas, if in that territory the sale of intoxicating liquors is permitted. This law authorizes the shipment of intoxicating liquors from any point in Texas to any other point in Texas, and the mere fact that the parties have not taken out license to sell does not abrogate the law granting...