Ex Parte Massey

• Decision Date: 06 December 1905
• Parties: Ex parte MASSEY.
• Court: Texas Court of Criminal Appeals

92 S.W. 1086

Ex parte MASSEY.

Court of Criminal Appeals of Texas.

December 6, 1905.

On Rehearing, March 14, 1906.

Application by H. E. Massey for a writ of habeas corpus to obtain his release from custody on the charge of soliciting an order for the sale of intoxicating liquor in local option territory. Relator discharged.

Newton & Ward, for relator. M. B. Templeton and Howard Martin, Asst. Atty. Gen., for respondent.

DAVIDSON, P. J.

The last Legislature passed the following statute (Laws 1905, p. 379, c. 159): "That if any person in any county, subdivision of a county, justice's precinct, city or town, in this state, in which the sale of intoxicating liquors has been prohibited by law, shall solicit or receive an order therein for the sale or delivery of any intoxicating liquor in such county, subdivision of a county, justice's precinct, city or town, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than fifty dollars nor more than three hundred dollars, and by confinement in the county jail for any period not less than thirty days nor more than ninety days." Applicant was charge by complaint and information, in two counts, with the violation of this statute. He was arrested, and sued out the writ of habeas corpus before this court.

The first count in the information charged that J. S. Carroll was conducting in the town of Maxwell, Caldwell county, an establishment for the sale of liquor; that local option was in force in Hays county on the 21st of August, 1905, and applicant was the agent of Carroll, and as such agent he solicited and received from Eli Hill, in Hays county, an order for the sale and delivery of one quart of whisky; that it was agreed between Hill and applicant that the order was to be forwarded from Hays county to Carroll, at his place of business at Maxwell; that Carroll reserved the right to reject or fill the order; that if he filled the order the whisky was to be delivered to the American Express Company, a common carrier at Maxwell, in Caldwell county, to be transported by the express company to Hays county, and there delivered to the purchaser, Eli Hill; that when the liquor was delivered to the common carrier at Maxwell it was then and there to become the property of Hill, and the express company was to transport the same as the agent of said Hill. The second count charges that on the 21st of August, 1905, applicant, in said county of Hays, did solicit and receive in said Hays county, from Eli Hill, an order for the sale and delivery in said Hays county of one quart of whisky, the same being an intoxicant.

Under all the authorities in Texas the first count does not charge a violation of the law, even if the whisky had been delivered and reached its destination in Hays county. The allegations set out in the first count would constitute a sale at the point of shipment, had there been a contract and the goods shipped, and not at the point of destination. Bruce v. State, 36 Tex. Cr. R. 53, 39 S. W. 683; Weldorn v. State, 36 Tex. Cr. R. 34, 35 S. W. 176; Keller v. State (Tex. Cr. App.) 87 S. W. 669; James v. State (Tex. Cr. App.) 78 S. W. 951; Sedgwick v. State (Tex. Cr. App.) 85 S. W. 813; Parker v. State (Tex. Cr. App.) 85 S. W. 1155; Joseph v. State (Tex. Cr. App.) 86 S. W. 326; Luster v. State (Tex. Cr. App.) 86 S. W. 326. Sims' Case (Tex. Cr. App.) 87 S. W. 689, is directly in point in regard to the right of the principal to ratify or reject such orders. So, under the order set out in the first count, if the sale had been consummated it would not have been in Hays county, but at Maxwell, Caldwell county, and that it is necessary to have a sale in the prohibited territory to constitute a violation of the local option law. We deem it unnecessary to further discuss the first count of the indictment. The second count charges that the order was solicited not only in Hays county, but the delivery was to occur in Hays county. We suppose this was intended to charge a state of case that would require the shipper to deliver the property in Hays county, and the property to remain his until it reached the consignee in the local option territory; in other words, that by the terms of the act in question the Legislature intended only to prohibit the soliciting and taking of orders in the local option territory, when the contract was to be consummated by the sale and delivery of the goods in the local option territory. But the further question is still involved in a general way that the Legislature intended to prohibit the soliciting of orders in local option territory, where the ultimate object of the consummation of that contract was the sending of the goods into the local option territory, without reference to where the sale might be consummated, in or out of the local option territory.

It is not the law, if the party solicits or takes the order in a local option district to deliver intoxicants in such district, that it constitutes a sale. If this is the final termination of the matter, there would be no sale. There might not even be a contract for a sale. If the solicitation ended the transaction, there would be no contract. Why? Because the parties solicited either failed or declined to accept the terms offered by the party soliciting the order. If there was an acceptance and an order given, still there would be nothing but a contract to deliver or sell at some future period. This is not sufficient. Why? Because there must be a sale, and such sale must be within the prohibited territory in order to come within the provisions of article 16, § 20, of the Constitution. This section alone furnishes the authority for local option legislation, and limits the authority of legislation to the prohibition of sale "within the prescribed limits" where the law is operative. It is a well-known rule, sanctioned by all legal authority, that, where the Constitution provides how a thing may or shall be done, such specification is a prohibition against its being done in any other manner. This is but the application of the familiar rule that the expression of one thing is the exclusion of any other, and therefore is decisive of legislative authority. This doctrine was fully discussed in Holley's Case, 14 Tex. App. 516, and quite a number of subsequent cases. The recent case of White v. State (Tex. Cr. App.) 85 S. W. 10, is strongly in point. See, also, Stallworth's Case, 16 Tex. App. 346, Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743, Stephens v. State (Tex. Cr. App.) 85 S. W. 797, and numerous authorities already cited, supra. In White's Case, supra, there was an agreement to sell and deliver the intoxicating liquor in the local option district, and the money was paid to the solicitor by the party from whom the order was sought. Before delivery of the goods, the solicitor of the order canceled the contract and returned the money to the would-be purchaser. Under this state of case, it was held not to be a violation of the law, because there was no consummation of the contract; that is, no sale had been made. The solicitation had only merged into a contract for the delivery of the goods. But the sale did not occur; that is, the goods were not delivered. The writer did not participate in the decision in that case, and the report of the case shows his absence. It may be safely asserted that a solicitation of an order is not even a contract; that, if accepted and merged into a contract, then it is not a sale, but simply an agreement to sell. It is nothing more than an executory contract, and by its very terms excludes the fact that a sale has been consummated. On the very face of the agreement the stipulations are for a sale at some future time. The act in question not only seeks to punish that which is not a sale, but provides a penalty for the doing of an act which the law itself recognizes not to be a sale, and which, by the terms of the agreement, cannot be a sale. The punishment denounced is for soliciting an order for the sale or for a delivery. This solicitation may be rejected, or, if accepted, it is not necessary that it be executed in order to call for a punishment under the terms of the act in question. It excludes the idea that the intoxicant is delivered. The offense is complete by the terms of the law without a delivery, or even without a contract for delivery. A sale is not necessary. The party would be punished whether the sale was in fact consummated or not. This is so clearly in violation of the terms of the constitutional provision cited supra that we deem it almost unnecessary to discuss it.

Again, the law is violative of the federal Constitution and the Wilson act of Congress regulating interstate commerce. The act in question makes no exception in favor of interstate commerce shipments or contracts. It punishes alike, whether the solicitation is for state or interstate shipments. That it is violative of the federal laws cannot be questioned in the face of 100 years of decisions by the courts, federal and state. This, it occurs to us, would render the act void. See Western Union Tel. Co. v. State, 62 Tex. 630; Kimbrough v. Barnett, 93 Tex. 313, 35 S. W. 120; T. & P. Ry. v. Mahaffey, 84 S. W. 646, 11 Tex. Ct. Rep. 858; State v. Hamey (Mo.) 65 S. W. at page 949; State v. Indiana & O. Oil, Gas & Mining Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579; Louisville & N. R. Co. v. Railroad Commission of Tenn. (C. C.) 19 Fed. 679. To hold otherwise would impute to the legislative and executive departments a purpose to discriminate against the citizens of this state in favor of those of other states, and an intent to punish our citizens for an act which would be entirely innocent if done by the citizens of other states. To hold that the Legislature intended such discrimination would not only be a reflection on that branch of the government as to their intelligence, and a criticism upon their sense of fairness and justice, but...