Joliff v. State

• Decision Date: 29 January 1908
• Citation: 109 S.W. 176
• Parties: JOLIFF v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 176

JOLIFF v. STATE.

Court of Criminal Appeals of Texas.

January 29, 1908.

On Rehearing, March 20, 1908.

Appeal from Grayson County Court; J. W. Hassell, Judge.

W. C. Joliff was convicted of keeping a disorderly house, and he appeals. Affirmed.

Geo. P. Brown and Smith & Wall, for appellant. Looney & Clark and F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Grayson county, Tex., on an indictment charging him with keeping a disorderly house—that is, with keeping a house in which intoxicating liquors were sold and kept for sale, without having first obtained a license to sell such liquors. The case was begun and prosecuted under chapter 132 of the Acts of the Thirtieth Legislature, p. 246. The judgment of conviction is assailed and reversal thereof sought on many grounds; and the claim is made here that said act is unconstitutional and void, as being in contravention of several sections of our state Constitution.

The first proposition submitted, and the first substantial contention made by appellant, is that the act of the Legislature under which the conviction was obtained was invalid, as being violative of section 35, art. 3, of our Constitution. This article is, as follows: "No bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed." It has been held uniformly in this state that a liberal construction will be applied to an act of the Legislature in determining whether or not it violates this section of our Constitution. Breen v. Ry. Co., 44 Tex. 306; Giddings v. San Antonio, 47 Tex. 556, 26 Am. Rep. 321; State v. Parker, 61 Tex. 265; Morris v. State, 62 Tex. 741; Ratigan v. State, 33 Tex. Cr. R. 301, 26 S. W. 407; Tabor v. State, 34 Tex. Cr. R. 631, 31 S. W. 662, 53 Am. St. Rep. 726. The title of the act in question undertakes to amend article 359, c. 4, tit. 10, of the Penal Code of 1895, of the state of Texas, defining what constitutes a disorderly house, so as to include, among other things, any house in which spirituous, vinous, or malt liquors are sold or kept for sale without the proprietor having first obtained a license under the laws of the state as a liquor dealer. The act also contains other definitions of what constitutes, under the law, a disorderly house. In this case, as stated, appellant was charged with keeping a disorderly house, in that he kept a house in which intoxicating liquors were sold and kept for sale without having first obtained a license to retail such liquors.

As stated in the case of Fahey v. State, 27 Tex. App. 158, 11 S. W. 108, 11 Am. St. Rep. 182: "Suppose there be more than one object mentioned in the act. If they be germane or subsidiary to the main subject, or if relative directly or indirectly to the main subject, have a mutual connection, and are not foreign to the main subject, or so long as the provisions are of the same nature and come legitimately under one general denomination or subject, we cannot hold the act unconstitutional." There may be some doubt as to whether article 359a is included within the title of the act in question. It is, however, unnecessary to decide this question. It is certain that the act for which appellant is prosecuted in this case is included, and under the provision of the Constitution above quoted, "but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed." This would give appellant no just ground of complaint. In other words, if it be held that article 359a is not germane, or fairly embraced within the title of the act in question, it is easily separable from the other matters and things named in the title, and its inclusion therein would not have the effect to avoid the subject properly embraced in it. It has been held that courts will sometimes sustain a plural act as to one of the subjects embraced, when the subjects are separable, and there is anything to indicate which is the principal act. This principle is strengthened by a reference to our Constitution as above stated.

Again, it is contended by counsel for appellant that the act in question which prohibits the keeping of a house where spirituous, vinous, or malt liquors are sold, or kept for sale, has been repealed by sections 4, 5, 6, and 27, c. 138. pp. 259, 268, of the Acts of the Thirtieth Legislature, popularly known as the "Baskin-McGregor Bill." We cannot accede to this view. The subject of the repeal of a statute by implication was maturely considered and elaborately discussed by this court in the case of Williams v. State (decided Jan. 22, 1908) 107 S. W. 1121. The views there expressed in effect hold adversely to the contention of appellant here. As confirmatory of the decision in that case, we call attention to the language of our Supreme Court in Cain v. State, 20 Tex. 359: "The rule is that, in the construction of acts of the same session, the whole must be taken and construed as one act, and, to make a latter provision repeal a former, there must be an express repeal, or an irreconcilable repugnancy between them." Again, in the same case, the court say (page 365): "Nothing short of a direct express repeal in terms, or such irreconcilable repugnancy as that both cannot stand together, and one consequently must give place to the other and operate its repeal by implication, has, it is believed, ever been held sufficient to justify a court in holding one act repealed by another passed at the same session." Nor is it believed that the offense named in the act under consideration is in all respects identical with those undertaken to be defined and punished in the Baskin-McGregor bill. Here the ingredients of the offense charged are, and the indispensable things to be proven are, first, a house must be kept; second, spirituous, vinous, or malt liquors are sold, or kept for sale; and, third, the defendant must be without a license. The ingredients of the offense defined in chapter 138 of the Acts of the Thirtieth Legislature, p. 258, are, first, that the defendant must sell such liquor, and he must be without a license. It is not necessary under the last-named act that the business shall be pursued in a house, but throughout said act the location of such business is referred to as a house or place. In the case of Standford v. State, 16 Tex. App. 331, the court say: "`Occupation,' as used in this statute and as understood commonly, would signify vocation, calling, trade, the business which one principally engages in to procure a living or to obtain wealth. It is not the sale of liquor that constitutes the offense. It is the engaging in the business of selling without paying the occupation tax. It does not require even a single sale to constitute the offense, for a person may engage in the business without succeeding in it, even to the extent of one sale. So, on the other hand, a person may make occasional sales of liquor without pursuing or following or intending to pursue or follow the occupation of selling liquor." To hold that the passage of the Baskin-McGregor law subsequent to the act in question operates as a repeal of the act here in question would lead to results which we cannot believe were, or could have been the contemplation of the Legislature, and we are not at liberty to impute to them such intention. For instance, section 23 of the Baskin-McGregor law provides that no license shall issue to any person doing business as a liquor dealer in any house or building used for a gambling house, etc., and if the building in which such business is conducted shall be so used with the knowledge of the licensee, his license shall be revoked. Section 24 of the same act provides that it shall be unlawful to permit in such place of business any boxing, wrestling, or other exhibition, or any gambling table, tenpin alley, etc., or other device for gaming. If, because the Baskin-McGregor law treats and prohibits these things, it shall be held to supersede all prior legislation having any reference to the same, or similar matters, it will operate by implication to repeal and emasculate the law against prize fighting, gambling, as well as the statute in respect to disorderly houses. See Acts 30th Leg., p. 268, c. 138, § 27.

It is next contended, in effect, that the act in question is invalid in that it is not a general law equally operative in all parts of the state, and that same is in violation of section 20, art. 16, of the Constitution. This section is as follows: "The Legislature shall at its first session enact a law whereby the qualified 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." It is urged by the state that the contention of appellant seems to ignore the fact that local option and nonlocal option territory alike have laws regulating the licensing and sale of intoxicating liquors, and that in consequence he overlooks the necessity for a general law, such as the one in question. If, however, the state contends this court should assimilate the act in question to a law by its terms limited to local option territory, then they insist that such act dealing, as it does, with the sale of intoxicating liquors, and being germane to the main subject and considered by the Legislature as a necessary auxiliary to the enforcement of the will of the people, as expressed by the adoption of local option, the same should be...