Ex Parte Humphrey
Decision Date | 01 November 1922 |
Docket Number | (No. 7065.) |
Citation | 244 S.W. 822 |
Parties | Ex parte HUMPHREY. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Nolan County; W. P. Leslie, Judge.
Habeas corpus on behalf of E. R. Humphrey, charged with violation of the standard weight and measure law. From an order refusing the writ, applicant appeals. Order reversed, and applicant ordered released from custody.
Ed. J. Hamner, Ellis Douthit, C. E. Mays, Jr. and Beall, Beall & Beall, all of Sweetwater, Head, Dillard, Smith, Maxey & Head, and Cecil H. Smith, all of Sherman, and Chas. L. Black, of Austin, for appellant.
E. I. Hill, Dist. Atty., and W. E. Ponder, Co. Atty., both of Sweetwater, and R. G. Storey, Asst. Atty. Gen., for the State.
Relator is charged with the violation of section 8, chapter 130, Acts 36th Leg. (Vernon's Ann. Pen. Code Supp. 1922, art. 992d), which reads thus:
The averment in the complaint charges that the relator:
"* * * Did then and there unlawfully sell and deliver, and cause to be sold and delivered, to Paul H. Sorenson one certain sack of flour weighing 47 pounds, 13 ounces, which said sack of flour was of less weight, and in violation of the standard weight and measure law passed by the Thirty-Sixth Legislature of the state of Texas, in March, 1919, fixing the true standard weight of said sack of flour at 48 pounds net per sack; thereby absolutely prohibiting the sale of such sack of flour so sold the said Paul B. Sorenson by said defendant. * * * and the Commissioner of Weights and Measures on said date allowed no tolerance on flour for shrinkage, against the peace and dignity of the state of Texas."
Upon many grounds the law upon which the prosecution is founded is assailed as invalid, but only such as are deemed necessary to the disposition of the case will be adverted to. On the trial of this habeas corpus proceeding, there was evidence introduced which apparently established, without controversy, that all flour contained a certain percentage of moisture which varied according to atmospheric conditions, and that the variation in the moisture produced a corresponding variation in the weight; that it was not possible to manufacture flour that would not be subject to such fluctuation, both as to moisture and weight. The Legislature apparently took into account this condition by the language italicized in the quotation from section 8 of chapter 130, supra, by attempting to confer upon the Commissioner of Markets and Warehouses the power to provide regulations touching the reasonable variations, tolerances, and exemptions. The construction of the statute upon which the conviction rests appears that in the sale of flour no account is to be taken of reasonable variations in weight. Such an interpretation, we think, is not the necessary effect of the language of the statute in question. In our judgment, the Legislature intended that reasonable variations should be allowed, and made it the duty of the Commissioner of Markets and Warehouses to prescribe regulations therefor. It is true that the word "may" is used in the statute. This, however, is not conclusive against its mandatory effect, so far as the allowance of reasonable tolerances or variations in weight is concerned. Rains v. Herring, 68 Tex. 468, 5 S. W. 369; Dallas v. Railway, 95 Tex. 269, 66 S. W. 835; Rock Island v. U. S., 4 Wall. 435, 18 L. Ed. 419; Smalley v. Paine, 102 Tex. 304, 116 S. W. 38; Smisson v. State, 71 Tex. 222, 9 S. W. 112; Ex parte Young, 49 Tex. Cr. R. 536;1 Lewis' Sutherland, Stat. Const. § 636. Construing the article of the statute of this state in these words, "Provided that for good cause, the court may permit the transcript to be thereafter filed upon such terms as it may prescribe," the Supreme Court of this state said:
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...in defining the elements of the offense. See also Ex parte Maynard, 101 Tex.Crim. 256, 275 S.W. 1070 (1924); Ex parte Humphrey, 92 Tex.Crim. 501, 244 S.W. 822 (1922); International Ass'n of Firefighters v. City of Kingsville, 568 S.W.2d 391 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r......
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