Stephens v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Davidson
• Citation: Stephens v. State, 73 S.W. 1056, 7 Tex. Ct. Rep. 970 (Tex. Crim. App. 1903)
• Decision Date: 22 April 1903
• Parties: STEPHENS v. STATE.

73 S.W. 1056

STEPHENS v. STATE.

Court of Criminal Appeals of Texas.

April 22, 1903.

Appeal from Wise County Court; S. G. Tankersley, Judge.

J. M. Stephens was convicted of giving a prescription in violation of the local option law, and appeals. Reversed.

Bullock & Basham, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was indicted for giving a prescription in violation of article 405, Pen. Code—in violation of the local option law.

Motion was made to quash the information, (1) because it charges no offense; and (2) because the law is unconstitutional, wherein it seeks to prescribe a penalty against physicians for giving prescriptions. Article 405, in substance, prescribes the punishment against all parties who undertake to give prescriptions in local option territory, except regular, practicing physicians, and against them if they should give prescriptions without a personal examination of the applicant, which personal examination must disclose the fact that applicant is sick. Article 16, § 20, of the Constitution, requires the Legislature to pass what is termed the "Local Option Law," and, by the terms of the Constitution, these laws are restricted to prohibition of the sale of intoxicants. In Holley v. State, 14 Tex. App. 505, the question was at issue whether the Legislature could pass a statute prohibiting the giving of intoxicants under the authority of the Constitution. The case was very thoroughly discussed by the court, and it was held that the Constitution was restrictive, and that the law authorizing the punishment for the gift of intoxicants in local option territory was invalid and unconstitutional. "A rule of construction is `that, when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference, to add to the condition, or to extend the penalty to other cases.' Cooley's Const. Lim. (4th Ed.) p. 78. This rule is decisive of the controversy. The Constitution defines the circumstances under which the people may prohibit the sale of intoxicating liquors under legislative enactment, and the Legislature have attempted to extend the prohibition to a gift, and have imposed a penalty for giving away intoxicating liquors. This they had no authority to do. On the contrary, the Constitution having specified the bounds within which they were to act, it was a direct assumption and usurpation of unwarranted power to go beyond these bounds." If authority is given expressly, though by affirmative words, upon a definite condition, the expression of that condition excludes the doing of the act authorized under other circumstances. City of New Haven v. Whitney, 36 Conn. 373; 1 Kent, Com. 467, and note; District Tp. of City of Dubuque v. City of Dubuque, 7 Clarke, 262. This same principle is recognized in Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743, and is authority for the statement that the constitutional provision (article 16, § 20) giving the Legislature authority to enact laws with regard to the adoption of local option by the people is exclusive of any other method to be pursued by the Legislature for dealing with the question, at least so far as the same territory is concerned...