Fitch v. State

• Decision Date: 02 March 1910
• Citation: 127 S.W. 1040
• Parties: FITCH v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 1040

FITCH v. STATE.

Court of Criminal Appeals of Texas.

March 2, 1910.

On Motion for Rehearing, May 4, 1910.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

W. I. Fitch was convicted of pursuing the business of selling intoxicating liquors in local option territory, and he appeals. Reversed, and dismissed on rehearing.

W. W. Ballew and Scott, Sanford & Ross, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was tried and convicted on an indictment charging him with pursuing the business or occupation of selling intoxicating liquors in local option territory in violation of law, and his punishment assessed at three years in the state penitentiary.

There was enacted by the Thirty-First Legislature an act making it a felony to pursue the occupation of selling intoxicating liquors in local option territory. See page 284, Laws 31st Leg. This act is as follows:

"Section 1. If any person shall engage in or pursue the occupation or business of selling intoxicating liquors except as permitted by law, in any county, justice precinct, city, town or subdivision of a county in which the sale of intoxicating liquor has been or shall hereafter be prohibited under the laws of this state, he or she shall be punished by confinement in the penitentiary not less than two, nor more than five years.

"Sec. 2. In prosecutions under this act, where it is proven that there is posted up at the place where such intoxicating liquor is being sold, United States internal revenue liquor or malt license to any one, it shall be prima facie proof that the person to whom such license is issued, is engaged in and is pursuing the business and occupation of selling intoxicating liquors within the meaning of this act.

"Sec. 3. In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of this act, it shall be necessary for the state to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment.

"Sec. 4. The inadequacy of the laws of this state to prohibit the unlawful sale of intoxicating liquors in the counties, justice precincts, cities, towns and other subdivisions of this state where the sale of intoxicating liquor has been prohibited by law, creates an emergency and an imperative public necessity, demanding the suspension of the constitutional rule requiring bills to be read on three several days, and the rule is so suspended, and that this act take effect and be in force from and after its passage, and it is so enacted."

On the trial of the case in the court below appellant made a motion to quash and dismiss the indictment upon the ground that the Legislature had no power to change the penalty for the alleged violation of the local option law after the people of a county, subdivision of a county, precinct, etc., have adopted said law, and that the Legislature had no power to create new offenses and greater penalties than those in force when said law was adopted, and that the district court of McLennan county was without jurisdiction of said offense because of the above facts. The indictment alleged that the appellant engaged in the occupation of selling intoxicating liquors in justice precinct No. 5 of the county of McLennan, and that this business was unlawfully carried on by the appellant after the qualified voters had adopted local option in said precinct. We are confronted here with the question whether the offense charged in this indictment is an amendment to the law with regard to sales, or whether said act creates a new, separate, and distinct offense, and whether the Legislature had power to legislate, create, and define new offenses other than those in force when local option was adopted, after the adoption of local option. At the threshold of the consideration of this case we are confronted with this proposition: After the adoption of local option in any given territory is all legislative power withdrawn, and is the Legislature prohibited from passing any additional legislation, defining new offenses and prescribing new penalties for these offenses? Commencing with the Dawson Case, 25 Tex. App. 670, 8 S. W. 820, through an unbroken line of decisions down to and including the case of Lewis v. State (this day decided) 127 S. W. 808, it has been held that any act of the Legislature amending the penalty attached to the sale of intoxicating liquors within local option territory will not apply to territory that has adopted local option previous to that act of the Legislature. However, in none of these cases is the contention made or is it announced that after the people have adopted local option, the Legislature is denied the right to pass all needful legislation to make effective the law that has been adopted by the people; and, when the people adopt local option, they not only have a right to make the demand upon the Legislature, but the obligation is binding upon the Legislature under the Constitution of the state, to see that all necessary legislation is enacted to make successfully effective the enforcement of the law in the prohibited territory. Section 20, art. 16, of the Constitution, directs the Legislature to pass laws whereby the people from time to time may determine whether the sale of intoxicating liquor shall be prohibited within the prescribed limits. Under this constitutional provision, unless there are some restrictions growing out of the local option law as adopted by the people, which may be construed as a part of the law itself, the power of the Legislature to enact all suitable and necessary laws for the enforcement of the will of the people on the subject of local option is not in the least interfered with or limited, nor does it require or authorize the Legislature to submit to the voters the law which may thereafter be enacted to enforce prohibition. The same would be within the power of the Legislature to enact, and it would become immaterial that the act was not the law at the time local option was adopted.

The first act of the Legislature passed under the Constitution was in 1876, and that act (Laws 1876, c. 33), which has been amended frequently since, provided for a punishment for the sale of intoxicating liquors in prohibited territory. That was the only offense defined by the Legislature. A penalty was prescribed by that law, making it a finable offense only. In 1887 that law was amended (Laws 1887, c. 104) defining sales and adding a penalty therefor, with the additional penalty of imprisonment in the county jail. This has remained the law ever since until the act of the Thirty-First Legislature. At the time of the adoption of local option in precinct 5, McLennan county, the Legislature had designated no new offenses within local option territory. If this law passed by the Thirty-First Legislature can be construed as an amendment to the law defining and punishing a sale of intoxicating liquors, then we think that it would have to pass out and could not be enforced in territory that had already adopted local option; but, if it is a separate and distinct offense, we think that the Legislature would have the right to define such an offense, prescribe the penalty for the same, and that said offense could be enforced in territory where local option prevailed at the time of the passage of such a law. The Legislature could have enacted a law simply submitting to the people the question of whether they would have local option or not, and subsequently have enacted a law defining offenses, in order to carry the result of the vote of the people into effect. See Ex parte Dupree, 101 Tex. 150, 105 S. W. 493. And if the only crime that had been defined by the Legislature at the time that matter was submitted to the people was simply a sale with the penalty attached to it, and the people voted on the law with that offense defined, this would not take away from the Legislature the right to define new offenses within the prohibited territory. All legislative power is vested in the Legislature, and cannot be exercised by any other body, except as provided by the Constitution. We, therefore, hold that the power to legislate for the efficient enforcement of local option laws is not taken away from the Legislature after the adoption of local option, but only for those offenses that are defined and punishment attached which were in existence at the time the people adopted local option, and that if new offenses grow out of the violation of this law that cannot be covered by the laws already in existence, the duty and obligation rests upon the Legislature to see that efficient laws are passed to meet each new emergency. If an element should invade local option territory opposed to the enforcement of local option laws, and should throw its force against the will of the people, and by its craft and cunning devise schemes and means to defeat the purpose of the law, and invent a method whereby, through the forms of law, they should evade the crime that had been defined by the Legislature, it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses and prescribing penalties for the new conditions that may arise because the same was not an offense at the time that local option was adopted. As said by this court in Ezzell v. State, 29 Tex. App. 521, 16 S. W. 782: "The Legislature is not only empowered to pass such laws, but it is obligatory upon said body to pass same and make them effective. It is not a question of delegated power, but is a command to that body to enact laws for the purpose and object stated in said provision of the Constitution (that is, section 20, art. 16). The authority to create the law carries with it the power to provide adequate penalties to punish violations thereof when the laws have been put...