Ex Parte Myer

• Decision Date: 23 October 1918
• Docket Number: (No. 5121.)
• Citation: 207 S.W. 100
• Parties: Ex parte MYER.
• Court: Texas Court of Criminal Appeals

207 S.W. 100

Ex parte MYER.

(No. 5121.)

Court of Criminal Appeals of Texas.

October 23, 1918.

On Motion for Rehearing, November 27, 1918.

Dissenting Opinion on Rehearing, December 18, 1918.

Original application for writ of habeas corpus by F. Myer, seeking release from arrest. Order discharged.

Newton & Newton, of San Antonio, Q. U. Watson, of Houston, J. J. Eckford, of Dallas, and Campbell, Amerman & Nicholson, of Houston, for appellant.

B. F. Looney, Atty. Gen., W. A. Keeling and C. M. Cureton, both of Austin, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Relator is under arrest charged with the sale of intoxicating liquors in violation of section 2 of the act of the 35th Legislature, which reads as follows.

"The sale, barter, or exchange of spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication — except for medicinal, scientific, mechanical and sacramental purposes — are hereby prohibited within this state." Acts 35th Leg., 4th Called Session, chap. 24, p. 37.

He seeks release on writ of habeas corpus, insisting that this section of the act of the Legislature is inoperative because in conflict with section 20 of article 16 of the Constitution, which reads:

"The Legislature shall, at its first session, enact a law whereby the voters of any county, justice's precinct, town, city (or such subdivision of a county as may be designated by the commissioners' court of said county), may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."

This clause, except the part in parenthesis, was incorporated in the Constitution adopted in 1876. The part in parenthesis was put in by amendment adopted in 1891. In June, 1876, the 15th Legislature, in obedience to this provision of the Constitution, enacted a local option law providing for the holding of elections in the counties and subdivisions named, and providing that, when at such an election the majority of the votes were cast "for prohibition," the sale of intoxicating liquors, except for medicinal and sacramental purposes, be absolutely prohibited within the prescribed bounds "until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise." The act also contained a provision to the effect that if prohibition carried another election within the same limits should not be held within less than 12 months. Gammel Laws, vol. 8, p. 862.

Prior to the passage of the act of the 35th Legislature mentioned, no effort was made to put absolute prohibition of the sale of intoxicating liquors in effect in the state, or any part of it, except by means of the local option law, which, with certain amendments, is still in force, unless annulled by the act in question, and during the 40 years intervening since its passage such prohibition has been put in force by a vote of the people in localities embracing the greater part of the state. From what has been said it follows that the exact question here presented has never been before the courts. In numerous instances the construction of section 20, art. 16, supra, in connection with the local option laws, has been involved and passed upon. Examples are Lewis v. State, 58 Tex. Cr. R. 359, 127 S. W. 808, 21 Ann. Cas. 656; Ex parte Elliott, 44 Tex. Cr. R. 577, 72 S. W. 837; Cross v. State, 49 Tex. Cr. R. 437, 94 S. W. 1015; Lawhon v. State, 26 Tex. App. 101, 9 S. W. 355; Robinson v. State, 26 Tex. App. 82, 9 S. W. 61; Dawson v. State, 25 Tex. App. 670, 8 S. W. 820; Ex parte Fields, 39 Tex. Cr. R. 55, 46 S. W. 1127; Ex parte Rippy, 44 Tex. Cr. R. 77, 68 S. W. 687; Adams v. Kelley, 17 Tex. Civ. App. 479, 44 S. W. 529; Ex parte Pollard, 51 Tex. Cr. R. 488, 103 S. W. 878; Ex parte Mills, 46 Tex. Cr. R. 224, 79 S. W. 555; State v. Schwartz, 103 Tex. 119, 124 S. W. 420; County v. Beall, 98 Tex. 104, 81 S. W. 526; Fox v. State, 53 Tex. Cr. R. 153, 109 S. W. 370; Keller v. State, 87 S. W. 669, 1 L. R. A. (N. S.) 489; Ex parte Brown, 38 Tex. Cr. R. 303, 42 S. W. 554, 70 Am. St. Rep. 743; Stallworth v. State, 16 Tex. App. 345; Holley v. State, 14 Tex. App. 507; State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166.

It is obvious that section 2 of the act, which prohibits the sale of intoxicating liquors, cannot operate in territory where the local option prohibition law has been adopted by the people, unless we are prepared to abandon the settled construction given by this court to section 20, art. 16, of the Constitution. An example of this construction is found in the case of Dawson v. State, 25 Tex. App. 670, 8 S. W. 820, wherein are announced principles which have so frequently been applied by this court that we deem it not amiss to reproduce, to some extent, the language used in that decision, wherein Judge Willson, writing the opinion, said:

"The extent of the power conferred upon the Legislature" by section 20, supra, was "to enact a law enabling the qualified voters of the localities designated to determine, in accordance with such law, whether the sale of intoxicating liquors shall be prohibited within specified limits. No power was conferred upon the Legislature to prohibit the sale of intoxicating liquors, but such power was vested alone in the qualified voters of the localities named — such power to be exercised by them in the manner to be provided by the Legislature. It is only by a majority vote of the qualified voters of a locality that the sale of intoxicating liquors within the limits of said locality can be prohibited. * * * This will, this power on the subject, is absolute and exclusive in the qualified voters of the locality. * * * If the power exists in the Legislature to deprive the locality of the right to have another election for the period of two years, the same exists to deprive them of such right for ten, twenty, or other number of years. * * * They, the qualified voters, enacted the law; it is their creature, called into existence by their direct agency, and they alone have the supreme and exclusive power, by a majority vote, to repeal it. It is not within the power of the Legislature to add to or take from, or in any manner infringe upon, the law as adopted by the will of the voters, or even, in our opinion, repeal it in that particular locality. Whenever the law has been legally adopted by any particular locality, the subject has passed beyond the domain of legislative action, so that a different law cannot, without the sanction of the qualified voters of that locality, given in a legal manner, be imposed upon such locality. * * * Any other view, it seems to us, would invade the constitutional rights of the people of such localities, and foist upon them a law which, perhaps, they never would have adopted, a law with respect to which their `option' had never been consulted or ascertained; a law enacted not by them, but by the Legislature, without constitutional right."

Deciding that an act of the Legislature changing the offense of violating the local option law making it a felony could not be effective in a county that adopted the law while the offense was a misdemeanor, this court, in an opinion written by Judge Ramsey, after an exhaustive review of the subject, the decisions and legislative enactments says:

"The first time the question * * * came before this court was in the case of Dawson v. State, 25 Tex. App. 670 [8 S. W. 820]. This decision was rendered by this court when composed of Judges White, Hurt, and Willson. * * * While it does not involve the precise question here raised, in principle, the rule there announced is conclusive of the question before us. * * * The decision in that case has been many times questioned and often assailed, but has remained the settled rule of this court from that day until this, and has been in terms applied by the court to the very question here raised. * * * We have thus reviewed, at more length than might ordinarily seem either desirable or necessary, the decisions of this court, which for almost a quarter of a century, through many changes of the personnel of its members, have uniformly and without dissent held to the proposition that it is not within the power of the Legislature to impose upon a community which had theretofore adopted the local option law, penalties and forfeitures which did not exist at the time of such adoption, and which rule had many times, by line upon line and precept upon precept, been enforced and established." Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656.

Adverting to the acts of the Legislature passed subsequent to the rendition of the opinion in the Dawson Case, the court in the Lewis Case states the conclusion that the construction of the Constitution therein had been adopted by the Legislature. This rule of approval of judicial interpretation would likewise apply to the readoption of the clause of the Constitution in 1891. Black on Interpretation of Laws, p. 32.

There are many localities in the state which adopted the local option law at a time when, under its provisions, its violation constituted a misdemeanor. Others adopted it after the offense became a felony, with the benefit of suspended sentence. Under the rule established in the Lewis Case, supra, and often since applied, prosecutions for the sale of intoxicating liquors are punished in some localities by fine and imprisonment, in others by confinement in the penitentiary with the privilege of suspended sentence; and under the principles which are laid down in the Dawson Case, supra, and of which Judge Ramsey, in the forceful language quoted, declares to constitute the settled rule of this court, the Legislature is without power to make in any of these instances the punishment for the sale of intoxicating liquors more severe without the consent of the people affected. The law in question, making the penalty a felony in all cases...