Lewis v. State

Decision Date02 March 1910
Citation127 S.W. 808
PartiesLEWIS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Hill County; W. C. Wear, Judge.

Love Lewis was convicted of violating the local option law, and appeals. Reversed and remanded.

Clarke & Black and McGrady & McMahon, for appellant. A. M. Frazier, Co. Atty., J. W. Marshall, Asst. Co. Atty., and John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Hill county on the 8th day of November of last year, charged with the sale of intoxicating liquors in said county in violation of law, on the 25th day of October preceding, to one Lee White. At a trial had in said court on the 13th day of December, he was convicted as charged, and his punishment assessed at confinement in the penitentiary for a period of one year.

Almost the single question presented, and the only question which we shall discuss, is, in view of the fact that local option had been adopted in said county in 1902, and had not been at any time thereafter voted on, whether appellant could, on conviction for a violation of said law, be punished as for a felony. At the time of the submission of this case, a great number of cases involving the same question were submitted from different parts of the state, and many eminent counsel, both for appellants and the state, on invitation, appeared before us, and discussed the question involved. Because of the interest thus manifested, and in view of the importance of the question to the people of this state, and the fact that the personnel of the court has within recent times been so wholly changed, and an authoritative expression of the court on the question will be awaited with some interest, we have deemed it important to write at length our views on this matter. Our opinion is that, under the law, the act of the Thirty-First Legislature, approved April 24, 1909 (Laws 1909, p. 356), does not and cannot apply to counties which had theretofore adopted local option. Preliminary to a discussion of the matter, it may be worth while to set out in terms the provisions of the law with reference to punishment thereby provided for the violation of its terms.

Section 5 of the act of the 15th Legislature (Laws 1876, p. 27; Gammel's Laws of Texas, vol. 8, p. 863) provides as follows: "When any such election has been held, and has resulted in favor of prohibition, and the aforesaid court has made the order declaring the result, and the order of prohibition, and has caused the same to be published as aforesaid, any person or persons who shall thereafter, within the prescribed bounds of prohibition, sell, exchange or give away, with the purpose of evading the provisions of this act, any intoxicating liquors whatsoever, or in any way violate any of the provisions of this act, shall be subject to prosecution, by information or indictment, and shall be fined in a sum not less than twenty-five nor more than two hundred dollars for each and every violation of any of the provisions of this act." This act was approved June 24, 1876, and took effect 90 days after adjournment. It remained the law of this state until the act of the Twentieth Legislature, passed March 30, 1887 (Laws 1887, p. 70). See Gammel's Laws of Texas, vol. 9, p. 868. The act prescribing punishment for violation of the penal law in selling intoxicating liquors in violation of such law as fixed and provided therein is as follows: "If any person shall sell any intoxicating liquor in any county, justice precinct, city, or town in which the sale of intoxicating liquor has been prohibited under the laws of this state, or if any person shall give away any intoxicating liquor in any such county, justice precinct, city, or town with the purpose of evading the provisions of said laws, he shall be punished by fine of not less than twenty-five nor more than one hundred dollars, and by imprisonment in the county jail for not less than twenty nor more than sixty days."

By the terms of Acts 31st Leg. p. 356, the following provision was established for the punishment of offenders against the local option law: "If any person shall sell any intoxicating liquor in any county, justice precinct, school district, city or town, or subdivision of a county, in which the sale of intoxicating liquors has been prohibited under the laws of this state, or if any person shall give away any intoxicating liquor in any such county, justice precinct, school district, city or town, or subdivision of a county with the purpose of evading the provisions of said law, he shall be punished by confinement in the penitentiary not less than one nor more than three years." It will be seen that the provision of the Thirty-First Legislature is literally a reproduction of the act of the Twentieth Legislature, approved March 30, 1887, except that it uses rather different language (conforming to the present law) with reference to the subdivisions of a county wherein the sale of intoxicating liquors has been prohibited; and it is for this reason that we have thus set out at length the different provisions of the Legislature.

The first time the question here involved, in substance, 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, and was rendered on the 2d day of June, 1883. While it does not involve the precise question here raised, in principle, the rule there announced is conclusive of the question before us. That decision carries intrinsic evidence of the fact that it was carefully considered, and that the arguments in behalf of the state now urged upon us were probably with equal force urged upon the court there. Presiding Judge Davidson, of this court, was then Assistant Attorney General of this state, and represented the state before this tribunal. From his brief preserved in the official report of the case we note that he submitted the following proposition: "While section 20, art. 16, of the state Constitution, confers upon the people the right to determine this question in their respective localities, at the same time it vests the Legislature with the power of regulating the manner and time of exercising this right. The power to determine the question is governed by the law in operation at the time the people of any particular locality attempt to exercise it. The Legislature at its last session having, in conformity with the Constitution, provided the ways and means of doing so, it follows that those who would avail themselves of the constitutional privilege must comply with the law upon the subject in operation at the time the vote is taken. When local option has been adopted, it is not simply for one year, but for all time, or until the people by their vote, taken in the manner as provided by law, revoke it. The fact that at the time local option was adopted it could, under the law then in force, be revoked in one year, conferred no right which would preclude the Legislature from changing the time to two years. A citizen has no vested right in statutory privileges. Cooley's Const. Lim. p. 479. It was perfectly competent for the Legislature to change the time. Such legislation is not retroactive or retrospective, as contemplated by section 16, art. 1, of the state Constitution. The term `retroactive' in the Bill of Rights was designed to embrace laws which are not included in the description of ex post facto, or laws impairing the obligation of contracts, but which destroy or impair vested rights. Laws which affect the remedy or procedure merely are not within the scope of the inhibition against retroactive laws, unless the remedy be entirely taken away, or so incumbered with conditions as to render it useless or impracticable. De Cordova v. City of Galveston, 4 Tex. 470, and cases cited in footnote; Morris & Cummings v. State, 62 Tex. 729; Languille v. State, 4 Tex. App. 312; Rowland & Bro. v. State, 12 Tex. App. 418. The recent act upon the subject of local option elections does not destroy or impair any vested right; neither does it take away any remedy or right of procedure. It simply regulates the manner of exercising the right, by extending the time from one to two years in which elections may reoccur."

In view of the argument thus made, and answering the position then assumed and now urged upon us, Judge Willson, speaking for the court, uses this language: "Section 20 of article 16 of the Constitution provides as follows: `The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice precinct, town or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.' What is the extent of the power conferred upon the Legislature by the foregoing provision? Simply 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. Hence is derived the common name of the law upon the subject; that is, the `Local Option Law.' While it is a general law, in the sense that it may be adopted in any portion of the state, it is nevertheless in its effect and operation when adopted, essentially local, deriving its force directly and entirely from the will of the qualified voters of the locality in which it is adopted, and continues in force in such...

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52 cases
  • Ex Parte Myer
    • United States
    • Texas Court of Criminal Appeals
    • 23 Octubre 1918
    ...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.......
  • Slack v. State
    • United States
    • Texas Court of Criminal Appeals
    • 1 Marzo 1911
    ...case of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and the cases since following that decision. The case of Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, and the cases there cited are relied on as the basis for his opinion in overruling the former decision of this court. We wa......
  • Ex Parte Mode
    • United States
    • Texas Court of Criminal Appeals
    • 13 Octubre 1915
    ...or to add to or detract from such local option law after once voted into existence in the given territory. Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656; Dawson v. State, 25 Tex. App. 670, 8 S. W. 820; Robinson v. State, 26 Tex. App. 82, 9 S. W. 61; Ex parte Cox, 28 Te......
  • State v. Daugherty
    • United States
    • Texas Court of Criminal Appeals
    • 26 Junio 1996
    ...to be applied to that statute." The Marin majority followed the legal principle adopted eighty-six years ago in Lewis v. State, 58 Tex.Crim. 351, 127 S.W. 808, 812 (1910). Accordingly, we must presume the Legislature approved of Garcia 's interpretation of art. 38.23. 1 See also, Gonzales v......
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