Ex Parte Peede
| Decision Date | 14 October 1914 |
| Docket Number | (No. 2949.) |
| Citation | 170 S.W. 749 |
| Parties | Ex parte PEEDE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
Application by Elmer Peede for writ of habeas corpus. From a judgment denying the writ, relator appeals. Writ issued, and relator discharged.
W. Dorsey Brown and S. J. Osborne, both of Kaufman, for appellant. B. F. Looney, Atty. Gen., W. A. Keeling, C. M. Cureton, and C. E. Lane, Asst. Attys. Gen., for the State.
This case involves the proper construction of what is known as the "Allison Law," being chapter 31 of the Acts of the First Called Session of the Thirty-Third Legislature. This act became effective on the 19th day of last November, and soon thereafter this cause was instituted, and on appeal was filed in this court in December. Oral argument was heard, and thereafter time was given both the Attorney General and counsel for relator to file briefs herein, and both have filed able and exhaustive briefs, discussing in almost all its phases legislation relating to the regulation and prohibition of intoxicating liquors.
That portion of the law which may be said to be involved in this decision are sections 2, 3, 4, and 5 of the act, which read as follows:
It will be noted that section 5 of the act is the one that deals with the shipment of intoxicating liquors from one state to another state — what is termed "interstate commerce." It will be further noted that this section does not absolutely prohibit the interstate shipment and transportation of intoxicating liquor, but only such as are "intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this state." Had the Legislature intended to prohibit altogether the interstate shipment of intoxicating liquors, it would have been easy to have had the act so read. If when enacting section 5 it had stopped when reaching the word "which" in line 8 of the Session Acts, said section would have read:
The language then would have needed no construction, for it would have, in clear and unequivocal terms, prohibited the interstate shipment and transportation of intoxicating liquors into prohibition territory. But for some reason the Legislature did not elect to so declare the law. Instead of so doing it elected to prohibit only such shipments as were intended "to be used or possessed in violation of the laws of this state." When they added to section 5 the qualifying words, "which such spirituous, vinous, or malted, fermented or other intoxicating liquor is intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this state," it becomes an issue of fact in each and every case of interstate shipment and transportation of intoxicating liquor whether or not such liquors were "intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this state."
In this case there is a statement of facts, and it may be said to conclusively show that after the Allison Law became effective, H. A. Laird, who resides in Kaufman county, Tex., ordered from the Rush Distilling Company of Ft. Smith, Ark., four quarts of whisky, sending the money therefor along with his order. When the Rush Distilling Company received the order at Ft. Smith, Ark., it delivered to the Wells Fargo Express Company, at its office in Ft. Smith, Ark., the four quarts of whisky to be shipped and transported to Mr. Laird at Kaufman, Tex., and said liquor was transported by the express company to Kaufman, Tex. Relator, Elmer Peede, is agent of the express company at such point, and he refused to deliver the whisky to Mr. Laird unless Mr. Laird would make an affidavit that such liquor was not intended to be received, possessed, sold, or in any manner used in violation of any law of this state; Kaufman, Tex., being situate in prohibition territory. Mr. Laird made this affidavit before Will A. Hindman, a notary public, and delivered it to the express agent, relator Peede, who then delivered to him the liquor. For making such delivery he is being prosecuted in this case.
The affidavit made by Mr. Laird and delivered to the express agent reads:
"Before the undersigned authority, a notary public in and for Kaufman county, Tex., on this day personally appeared H. A. Laird, known to me to be a credible citizen of Kaufman county, Tex., and over the age of 21 years, and after being by me duly sworn on his oath deposes and says that he is the consignee of a certain package of whisky shipped from Ft. Smith, Ark.; that the consignor of said package is the Rush Distilling Company, and that said package of whisky was ordered by affiant for his own personal use, and that of his family only, that said package of whisky was shipped to affiant from Ft. Smith, Ark., since December 1, 1913, and was duly received by the Wells Fargo & Co. Express at Kaufman, Tex., and that said whisky is intended by me to be used by me for my own personal use and the use of my family only, and that no other person than this affiant is interested in such shipment, and said whisky was not ordered, shipped, received, or possessed by me or delivered to me for the purposes of sale, or in any manner to be used by me for any other purpose or in violation of any law of the state of Texas, or of any law of the United States."
Mr. Terry, the county attorney of Kaufman county, testified:
"This prosecution was not instituted upon the theory that the liquor delivered to Laird was ordered, possessed, or delivered for any unlawful purpose; this prosecution was instituted upon the theory that any delivery of intoxicating liquors in a local option county under an interstate shipment is unlawful; there was no evidence upon the examining trial whatever or suspicion that the liquor was intended to be used for any unlawful purpose, and I know of no such evidence now."
It is thus seen that no contention was made that the whisky shipped, transported, and delivered to Mr. Laird was intended to be received, possessed, sold, or in any manner used in violation of the law, but it is frankly admitted and proven that such was not the case, and this prosecution was instituted upon the theory that all interstate shipment and transportation of intoxicating liquors was prohibited by the above-quoted act. Such construction would do violence to the language used in section 5 of the act relating to the interstate shipment of intoxicating liquors, and would make it necessary for the court to strike from said section the words, "which such spirituous, vinous or malted, fermented or other intoxicating liquor is intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this state," and this the court is not authorized to do. It is immaterial whether, in the wisdom of the court, it would be best that such words had been omitted from the law. The court is not the law-enacting agency of the government —that function is conferred upon the Legislature — and all the courts can do is to declare and enforce the law as written and passed by the legislative branch of the government. It is not for us to question or conjecture why the Legislature so provided in that section dealing with the interstate shipment of intoxicating liquors. It may be they questioned their authority to prohibit all interstate shipments of intoxicating liquors, or it may be they thought it not wise to do so, but...
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