Ex Parte Massey

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Henderson
• Citation: Ex Parte Massey, 92 S.W. 1083 (Tex. Crim. App. 1905)
• Decision Date: 15 November 1905
• Parties: Ex parte MASSEY.

92 S.W. 1083

Ex parte MASSEY.

Court of Criminal Appeals of Texas.

November 15, 1905.

Rehearing Denied March 14, 1906.

Application by H. D. Massey for writ of habeas corpus to obtain his release from custody on a charge of violating the local option law. Relator remanded.

Newton & Ward, for relator. Howard Martin, Asst. Atty. Gen., for respondent.

HENDERSON, J.

This is an original application for the writ of habeas corpus, which was granted by Hon. W. L. Davidson, during vacation, and made returnable to the full court at this term. The agreed statement of facts shows that local option was in force in the county of Hays on the 21st day of August, 1905; that applicant, Massey, was then and there engaged in the business or occupation of keeping and storing spirituous, vinous, and intoxicating liquors for others; and that he permitted persons, among others, Jack Liley, to drink a bottle of beer within his said place of business. In other words, the state claims that relator had violated the act of the Twenty-Ninth Legislature (Gen. Laws 29th Leg. p. 91, c. 64) regulating the occupation of keeping or storing spirituous, vinous, or intoxicating liquors for others within any county, justice's precinct, subdivision of a county, city, or town, in which the sale of spirituous, vinous, or intoxicating liquors had been prohibited under the laws of this state, by permitting such intoxicating liquors to be drunk within his said place of business. A violation of this statute is made a misdemeanor, punishable by a fine and imprisonment. Applicant was arrested on complaint charging a violation of said law, and, as stated before, sued out a writ or habeas corpus, claiming that said law was unconstitutional and void.

One ground of his contention is that said act is void, because section 20 of article 16 controls legislative power in regard to legislation applicable to intoxicating liquor in local option territory, and that the Legislature is without power or authority to pass any other legislation, applicable to local option territory, than that authorized by section 20 of article 16 of the Constitution. To support his contention on this behalf he refers us to Holley v. State, 14 Tex. App. 505; Stallworth v. State, 16 Tex. App. 346; Stephens v. State (Tex. Cr. App.) 85 S. W. 797; Ex parte Brown, 38 Tex. Cr. R. 306, 42 S. W. 554, 70 Am. St. Rep. 743. Both the Holley and Stallworth Cases relate to the power of the Legislature inhibiting the giving away of liquor in local option territory, and it was held that the constitutional provision in question limited the power of the Legislature to the prohibition of the sale of liquor. The case of Stephens is authority for the proposition that the state law prohibiting a gift to minors is in force in the local option territory, and would seem to contravene the relator's position. In Ex parte Brown, the question was as to the validity of an act of the Legislature which prohibited the keeping of a cold storage for the purpose of keeping and storing intoxicating liquors for others in local option territory. It was there held that it was not within the police power of the state to prohibit the keeping of such a cold storage. The opinion in said case appears to have been based upon two grounds: First, that the Constitution (article 16, § 20), which authorized legislation prohibiting the sale of intoxicating liquor in the local option territory, measured the power of the Legislature to deal with the liquor question in any other manner; and, second, that intoxicating liquors were regarded both in the state and nation as property, and the attempt to prevent the holding or use of such property, for no illegal or improper purpose, was an invasion of the fundamental rights of the citizen. In the discussion of the question, it seems to have been assumed that the act in question, inhibiting the keeping of a cold storage, was an attempt on the part of the Legislature to deal with the liquor question in a manner not authorized by the Constitution. If such be the case, there can be no question that, under the Constitution as construed by our authorities, which we think are correct, any attempt on the part of the Legislature to deal directly or indirectly with intoxicating liquors, save as prescribed by the Constitution, would be without authority of law and void. The provision of the Constitution authorizes the people to inhibit the sale of intoxicating liquors in local option territory. Then would the keeping of a cold storage in such territory be an infringement of said provision? A closer scrutiny of the question renders this proposition at least doubtful, as it is not a direct assault on the local option law, but appears to be outside of the law. Whether or not this be correct, the holding of the court in Ex parte Brown is unquestionably sound on the proposition that the attempt of the Legislature to prohibit the keeping of a cold storage in local option territory was a direct invasion of the inalienable rights of the citizen. The question there was, not the regulation in the keeping of a cold storage, but the absolute prohibition. Here, however, the question is one purely of regulation. Regulation is not prohibition. On the contrary, it apprehends the existence of the thing to be regulated. Unquestionably a person may keep a cold storage in local option territory without any infringement or impairment of the local option law. But it cannot be assumed that, because he can pursue such business, the Legislature is without authority under its police power to regulate the keeping of a cold storage. We do not understand that the police power of the state is abrogated or suspended in local option territory, or that state laws which are applicable to such territory are inoperative. It has been held by this court that the state law regulating gifts of liquor to minors is operative in local option territory. Stephens v. State (Tex. Cr. App.) 85 S. W. 797. We have also held it was competent to tax the legal sales of intoxicating liquor for medicinal purposes under state laws and that this was not antagonistic to article 16, § 20, of the Constitution. Snearley v. State, 40 Tex. Cr. R. 507, 52 S. W. 547, 53 S. W. 696. It has never been suggested that the sale of liquor in local option territory for medicinal purposes, which is regulated by law, is unconstitutional on that account. As has been often held, intoxicating liquor is peculiarly a subject of police regulation. See Ex parte Rippy, 44 Tex. Cr. R. 72, 68 S. W. 687; Amer. & Eng. Ency. of Law, vol. 22, p. 926. So we have laws inhibiting the drinking of liquor at the place where sold, except in saloons proper,...