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merce clause, where the power of Congress, tions in nonprohibition territory prescribed is exclusive, and a regulation of Congress by statute. Savage v. Jones, supra. incidental to its military power affecting Section 13 of the same act of Congress is the subject of intoxicating liquors peculiarly the same, in substance, as section 12, supra, within the domain of state legislation. Even save that section 13 authorizes the military in the construction of police regulations of authorities to prohibit bawdyhouses near the state, which incidentally indirectly af-military camps. An order establishing a fect interstate commerce, the rigid rule ap- zone within which such prohibition was efplied in the cases cited by relator is not fective was before the federal court in Ohio, enforced. Savage v. Jones, 225 U. S. 501, 32 and from the opinion we quote the followSup. Ct. 715, 56 L. Ed. 1182. Illustrative ing: is the expression of the Supreme Court in That the state in the exercise of its police upholding a police regulation with reference power has the right to legislate, and in purto diseased cattle, which incidentally affect the morals of its citizens, and may prosecute
suance of that right has legislated, to control ed the subject of interstate commerce upon the keepers of bawdy houses, is freely concedwhich there existed a federal statute. The ed; but their conviction and sentence for that court said:
offense in the state court, han action been "This question must of course be determined ecution in this court. Cross v. North Carolina,
taken against them there, would not bar proswith reference to the settled rule that a statute 132 U. S. 131, 139, 10 Sup. Ct. 47, 33 L. Ed. enacted in execution of a reserve power of the 287; Sexton v. California, 189 U. S. 319, 323, state is not to be regarded as inconsistent with 23 Sup. Ct. 543, 47 L. Ed. 833; Byrne, Fed. an act of Congress passed in the execution of Crim. Proc. § 211. The attitude of the gova clear power under the Constitution, unless ernment is that Congress, not in the exercise the repugnance or conflict is so direct and pos- of the police power, but in the exercise of the itive that the two acts cannot be reconciled or war power conferred upon it by the federal stand together." Ry. v. Hober, 169 U. S. 613, Constitution, may also, as a matter of right, 18 Sup. Ct. 488, 42 L. Ed. 878.
prohibit the presence of such places within the So in the case of Reid v. Colorado, 187 prescribed territory without encroaching on the
jurisdiction of the state." U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108, Casey (D. C.) 247 Fed. 365.
United States v. making a similar ruling, the court said:
We refer to the above as emphasizing the "It should never be held that Congress intends to supersede or, by its legislation, sus- view that the military regulation of alcopend the exercise of the police powers of the holic liquors is not exclusive of the state's states, even when it may do so, unless its pur- police power on the subject. The question pose to effect that result is clearly manifested. This court has said-and the principle has oft- of whether the federal rules and this state's en been reaffirmed-that, in the application of law can coexist and be enforced in the this principle of supremacy of an act of Con- same territory is not involved, and not degress in a case where the state law is but the cided; it appearing that relator's alleged exercise of a reserve power, the repugnance or conflict should be direct and positive, so that offense was not committed within the fedthe two acts could not be reconciled or con- eral zone. sistently stand together.”
We are also of the opinion that that part Other federal authorities are Silz v. Hes- of the act of the Legislature under which terberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. relator is prosecuted for the sale of the liq75; McLean v. Railway, 203 U. S. 38, 27 uor complained of, as applied to the place at Sup. Ct. 1, 51 L. Ed. 78; Atlantic Coast Co. which the sale is charged to have occurred, v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, is not a prohibition of the sale of intoxicat52 L. Ed. 230; Railway v. Eubanks, 184 u. ing liquors in conflict with section 20, art. S. 27, 22 Sup. Ct. 277, 46 L. Ed. 416; Asbell 16, of the state Constitution, but a regulav. Kansas, 209 U. S. 251, 28 Sup. Ct. 485, tion of the sale consistent with and support52 L. Ed. 778, 14 Ann. Cas. 1101.
ed by the numerous authorities in this state The act of Congress is indicative of the interpreting the power of the Legislature to intent to regulate the prohibition of alcoholic regulate the sale of intoxicating liquors in liquors near the military camps and to of- localities where the sale is not prohibited ficers and enlisted men of the army as deem- under said article of the Constitution. Ever ed necessary and advisable by the President. since the Constitution of 1876 was adopted The extent to which the President has deem- the prohibition law has been made effective ed it necessary and advisable to make such under the local option laws in counties and regulations is embraced in his order estab- districts 'deciding, by vote, to put it in force, lishing a zone around military camps. This and in the remainder of the state the sale order we think is expressive of the extent of intoxicating liquor has been conducted unto which Congress has entered the legisla- der laws regulating it. The legislative powtive field of and control of intoxicating liq- er to prohibit, having never been asserted, uors. It has not, by entering the field to this has not been determined by the courts. limited extent, as incidental to the enforce- The decisions of this and the Supreme ment of the power granted by Congress to Court of the state relating to the subject raise and maintain armies, ousted the deal with the two phases mentioned, namestate from its jurisdiction of the remainder ly: First, defining the limits of legislative of its domain, nor annulled therein the pro- authority over the subject in subdivisions of hibition laws enacted under the local option the state which by vote have declared in faing on the various acts enforcing the power, never been consulted or ascertained; a law of the lawmaking branch of the government enacted, not by them, but by the Legislature, to regulate the sale of intoxicating liquors
without constitutional right." in those parts of the state where its sale has
Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. not been prohibited under the local option W. 554, 70 Am. St. Rep. 743, declared the clause of the Constitution.
cold storage act void, an act making it unIn the first class mentioned are found the lawful to keep intoxicating liquors for others cases relied on by relator to sustain his con- on cold storage in districts where the sales tention that the provision of the act under were prohibited under the local option statwhich he is held is an attempt to exercise ute. The language of the court, in part, is a power not possessed by the Legislature by as follows: reason of the restrictions upon its power
“That provision inhibits the sale only, and
was evidently intended by the people to mark coming from section 20, art. 16, of the Con- the limitation of power of the Legislature on stitution, which is as follows:
that subject. The people, in saying that a “The Legislature shall, at its first session en- sale of intoxicating liquors might be prohibited, act a law whereby the qualified voters of any deny to the Legislature the power to otherwise county, justice's precinct, town, city (or such interfere with its use; and the cold storage subdivision of a county as may be designated by act was an attempted interference with the the commissioners' court of said county), may, use of intoxicating liquors in local option terby a majority vote, determine from time to time ritory, not authorized or warranted by the Conwhether the sale of intoxicating liquors shall stitution.” be prohibited within the prescribed limits." See Ex parte Flake, 67 Tex. Cr. R. 216,
He cites Holley v. State, 14 Tex. App. 516; 149 S. W. 146. Dawson v. State, 25 Tex. App. 670, 8 S. W.
Stephens' Case, 73 S. W. 1056, held an act 820; Ex parte Brown, 38 Tex. Cr. R. 295, 42 of the Legislature void, making it unlawful S. W. 554, 70 Am. St. Rep. 743; Stephens v. to give a prescription for intoxicating liqState, 73 S. W. 1056; Lewis v. State, 58 uors in local option territory. It quotes and Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. follows the Holley Case, supra. 656; State v. Texas Brew. Co., 106 Tex.
State v. Texas Brewing Co., supra, held 121, 157 S. W. 1166.
an act of the Legislature, levying a tax upon Holley's Case was one in which the court the pursuit of the business of taking orders held a statute invalid which authorized the for the sale of intoxicating liquors in proqualified voters of a subdivision of a county hibited territory, void upon the ground that, to prohibit the sale, exchange, or “gift” of under the facts of the case, taking orders intoxicating liquors for the reason that sec- would amount to a sale, which, being prohibtion 20, art. 16, of the Constitution only au-ited in local option territory, could not be lithorized the people in a local option district censed. Judge Brown, writing the opinion, to determine whether the "sale" of intoxicat- used the following language: ing liquor shall be prohibited.
"All powers of government reside in the peoIn Dawson's Case, supra, the question ple, and the officials of the different depart
ments exercise delegated authority. However, arose upon this state of fact: When the lo- the Legislature can exercise all legislative powcal option law was put in effect the statute er not prohibited by the Constitution. But the covering it provided that it might be repeal section of the Constitution quoted provides a
method (a referendum) by which the voters of ed by vote of the people after one year. Sub a given territory may exercise the sovereign sequently the Legislature amended the act power of legislating upon this subject, which providing that the election for its repeal places the law adopted by them above legislacould not be held until the expiration of two the Constitution, and we must so consider the
tive authority, as if it has been embraced in years. An election was held within less than local option law adopted by the voters of Clay two years, resulting against prohibition. county, for that, like the Constitution, is the Dawson was discharged by the court on his what is prohibited by the local option law, to
exercise of primary sovereignty. Therefore, contention that the election resulting against be done in Clay county, as to sale of intoxicatprohibition repealed the law in the terri- ing liquors, cannot be authorized by the Legistory involved, holding that the Legislature lature to be done there." was without power to change by amendment In the Lewis Case, 58 Tex. Cr. R. 351, 127 the time within which the repeal could take S. W. 808, 21 Ann. Cas. 656, the previous place after prohibition had been adopted. cases cited were reviewed by Judge Ramsey From the opinion we quote as follows: who wrote the opinion. The conclusion
"Our view is that the amendatory act of reached was that by reason of the judicial July 4, 1887, in each and all of its provisions, interpretation of the constitutional provision was intended to and does operate only in localities which have adopted since it went into mentioned, and the subsequent implied adopeffect, or may hereafter adopt, local option in tion of that construction by legislative enaccordance therewith, and that said provisions actment, a statute making the penalty for a cannot and do not, and were not intended to, violation of the law prohibiting the sale of operate in localities which prior to their going into effect, had voted upon and adopted the law intoxicating liquors a felony would not operas it was prior to such amendatory provisions. ate in the district which adopted the proAny other view, it seems to us, would invade hibition when the penalty for its violation the constitutional rights of the people of such was a misdemeanor. Consequently, upon the localities and foist upon them a law which, perhaps, they never would have adopted, a interpretation of the Constitution given in law with respect to which their option' had the cases mentioned, the penalty for the violation of the local option law in the several | any part of the districts defined, the procounties of the state varies according to the hibited districts including about eight-ninths status of the legislative enactment at the of the territorial limits of the city. It was time that prohibition was adopted in the urged that in these districts there was estabparticular counties. Among other authorities lished prohibition, which it was claimed was on the subject are Ex parte Dupree, 101 Tex. available only under the terms of article 16, 150, 105 S. W. 493; Dupree v. State, 102 $ 20, of the Constitution. The ordinance was Tex. 459, 119 S. W. 301; Segars v. State, 40 sustained, the court using the following lanTex. Cr. R. 577, 51 S. W. 211; Ex parte guage: Flake, 67 Tex. Cr. R. 216, 149 S. W. 146 ; "The ordinance does not prohibit the sale of Johnson v. State, 75 Tex. Cr. R. 177, 171 s. intoxicating liquors in the city of Marshall, W. 211; Longmire v. State, 75 Tex. Cr. R. the sale to the business portion of the city.
but regulates the same in the city by confining 616, 171 S. W. 1165, Ann. Cas. 1917A, 726; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W.
The principle announced in Cohen v. Rice, 1040.
supra, has been accepted as sound and apThe judicial view of the restrictive effect plied in numerous instances by this court, as of section 20, art. 16, of the Constitution on in Ex parte King, 52 Tex. Cr. R. 383, 107 S. the legislative power in districts in which W. 549, construing a provision of the spethe prohibition has been put in operation by cial charter of Ft. Worth granting authority vote of the people shed only an indirect light to prescribe saloon limits of said city. The on the power possessed by the Legislature in court, holding the provision valid, used the districts such as that in which relator is following language: charged with offending, where such prohibi- to empower the city council by special charter
"The Legislature of this state is authorized tion has not been put in effect under the lo- to prescribe the boundaries and limits within cal option law. Laws regulating the sale which the sale of liquor shall be prohibited by and use of intoxicating liquors in districts law, and such local authorities may define and
limit the area within which alone such sales of the state where the sale was not prohibit may be lawful. This was distinctly ruled in ed under the local option law have been en- the case of Cohen v. Rice, 101 S. W. 1052, by acted by the Legislature in great variety Judicial District, in which case writ of error
the Court of Civil Appeals of the Fifth Supreme and number, and in many instances their was refused by our Supreme Court. This is in validity has been passed on by the courts. accordance with, and is well settled by, the Illustrations are: Article 155 of the Penal authorities." Code, relating to C. 0. D. shipments, held Similar ruling was made with reference to valid in L. Craddock & Co. v. Wells Fargo an ordinance of the city of Dallas in WilExpress Co., 58 Tex. Civ. App. 551, 125 S. liams v. State, 52 Tex. Cr. R. 371, 107 S. W. W. 59. Article 630, P. C., prohibiting sales 1121, and with reference to an ordinance of: of intoxicating liquors on election days. See Texarkana in Ex parte Abrams, 56 Tex. Cr. Anderson v. State, 39 Tex. Cr. R. 34; 44 S. R. 465, 120 S. W. 883, 18 Ann. Cas. 45. To W. 824. Article 1054, P. C., prohibiting the the same effect, is Garonzik v. State, 50 Tex. sale or gift of such liquors to minors upheld Cr. R. 535, 100 S. W. 374, and Le Gois v. in Hogan v. State, 66 Tex. Cr. R. 514, 147 State, 190 S. W. 724. See, also, Paul v. S. W. 601. Articles 595 and 623, P. C., State, 48 Tex. Civ. App. 25, 106 S. W. 448, relating to sales to habitual drunkards. Ar- and Andrews v. Beaumont, 51 Tex. Civ. App. ticle 630, P. C., relating to sales at religious 625, 113 S. W. 615. assemblages, held valid. Keith v. State, 38 We have some statutes and decisions apTex. Cr. R. 680, 44 S. W. 847.
plicable to nonlocal option districts, prohibThe sale in the instant case took place in iting the sale of intoxicating liquors to cerTarrant county, within ten miles of Camp tain persons in certain localities, and at cerBowie, at a place where the sale of intoxi- tain times. This restriction is confined to a cating liquors is not prohibited under the part of Tarrant county near United States local option law, and has been lawfully pur- military posts or camps during the war. sued up to the passage of the act of the Leg
The conclusion that this is a regulation islature in question, which is the only in- within the scope of the principle discussed hibition against its sale making it unlawful. in Cohen v. Rice, supra, and cases following The case of Cohen v. Rice, 101 S. W. 1053, it is difficult to escape. The provisions redecided by the Court of Civil Appeals åt Dal- viewed in the case of Cohen v. Rice, supra, las, the Supreme Court denying writ of er-are stated in the opinion as follows: ror, was one in which an application for state of Texas granted to the city
“(1) In March, 1903, the Legislature of the mandamus was sought to coinpel the tax col- a special charter, and section 16 of article 1 of lector to issue Cohen a license as a retail the city charter reads as follows: "The city liquor dealer. The city of Marshall was a council shall have the power to prescribe by place in which the sale of intoxicating liq. sold or given away within the corporate limits
ordinance that no intoxicating liquors shall be uors was permitted. The mandamus was re- of said city in any certain prescribed district fused because of an ordinance of the city in said corporation in which there are more made under legislative authority, which pro- be accurately defined by said ordinance.', (2)
resident than business houses, said districts to hibited the issuance of license to any person The city council in June, 1906, adopted an city charter, defining the resident districts of And I further hold there is no constituthe city, which ordinance provides that it shall tional provision, state or national, which dibe unlawful for any person, firm, or corpora- rectly or by implication forbids or preliquors within any or either of the prescribed vents it. districts situated within the corporate limits of the said city of Marshall."
DAVIDSON, P. J. (dissenting). There The effect of this ordinance was to with- are two propositions involved that I desire draw a part of the territory of the city of to mention, and incidentally discuss briefly: Marshall from the operation of the laws in First, that the act under consideration was force in that city, permitting the sale of in- intended to operate upon the military forces toxicating liquors under the license law, and of the United States at training camps, forts, to prohibit the sale of such liquors in the arsenals, shipyards, and aviation camps as a territory thus withdrawn. The effect of sec- regulation and discipline of their conduct and tion 1 of the act of the Thirty-Fifth Legisla- in their contact with the citizenship of Texas, ture in question is to withdraw a part of and therefore it is a war measure, and exthe territory of Tarrant county from the pressly so stated in the act itself, to wit, that operation of the laws, permitting the sale it was to last during the war and pass out of such liquors, and to prohibit the sale of of existence at the termination of that war. such liquors in the territory thus withdrawn. Second, that it is not a regulatory act, but The analogy is obvious. While, as stated, the Legislature would reference to prohibiting the sale, shipment
While, as stated, the Legislature would one drastic in its action and purpose with have no right to pass a law conflicting with into the alleged zone, and use of intoxicating the constitutional provisions, express or im- liquors by the military forces of the United plied, on the supposition that it possessed
States. Eliminating the military phase of such power as a war measure, the judicial it and its correlated connection, this law knowledge of the court that the country is would have no standing in court for any at war; that the state by large appropria
I, therefore, concur with tions is aiding to the extent of preparing the
Judge MORROW in the statement that the militia for service in the federal army,
hat at several points in the state of Texas the Legislature has no authority, express or imUnited States authorities have located mili- plied to enact the statute under consideration
as a war measure, but I cannot concur with concentrated large numbers of troops; that him in his holding that the act may be used as the conditions produced are abnormal to an a police regulation. Police power of the state extent that Congress has authorized, and the does not pertain to nor include war measmilitary authorities have adopted stringent ures or the control in any of the army and regulations with reference to alcoholic liq- military matters of the United States. That uors and other sources of vice in the vicin- belongs exclusively to the federal govern
. ity of these camps, may be considered, in ment. The control of the army and all miliaid of the legal presumption in favor of the tary laws and discipline pertaining to regu
lation and control of the army and its manvalidity of laws, in determining the reasonableness of the exercise of the police power agement and maneuvers were delegated to ableness of the exercise of the police power the federal government by the state in the of the state in the present instance.
federal Constitution. The state of Texas, The Constitution affords relator no guar- therefore, has no authority to declare war or anty of the privilege of selling intoxicating enact war measures. If it be used as a part liquors in any specified locality in Tarrant of the police power, then we have, in addicounty, nor in any particular portion of any tion to the police power, and overriding miliof its political subdivisions or defined dis- tary law, and that phase of government retricts; nor has he shown that his authority sorted to when the police power has failed, to sell these liquors within the limits of the and thereby it becomes dominant over civil county, or within limits of any of the sub- authority. This would be violative of article divisions or districts thereof, in which the 1, $ 24, of the state Constitution, known as sale of such liquors is permitted under the the Bill of Rights. It prescribes that: license laws, is unreasonably abridged by the
“The military shall at all times be subordinate enforcement of the regulation under con- to the civil authority.” sideration.
The application for writ of habeas corpus Instead of the military controlling the pois dismissed.
lice power of the government that power
should be superior to the military in state PRENDERGAST, J. (concurring). I hold matters, as evidenced by this provision of the the act is valid as a necessary and reason- Constitution. See, also, State v. Sparks, 27 able regulation.
Tex. 705. That this is a war measure seems And I also hold it valid under the inalien- to be certain from the wording of the act, able police power of the Legislature as which is shown throughout the entire bill straight prohibition in the prescribed zones, from caption to emergency
termination. as a necessary aid to the successful prosecu- That my personal views may not be substition of the war.
tuted for the statute, quotations will be made
from the act. It is known as House Bill No. 1 necessity that the constitutional rule requiring 9. The caption provides: .
bills to be read on three several days be sus“An act to prevent and prohibit in time of and after April 15, 1918, and it is so enacted.
pended, and that this act become effective from war the sale, barter, or exchange of spirituous, vinous and malt liquors, or medicated bitters It will be noted from these quotations that capable of producing intoxication, within ten the only reason for the enactment of this bill miles of any fort, arsenal, training camp, cantonment, aviation field or school where soldiers, was to prohibit during the war between the sailors, marines or aviators are being quartered, United States and Germany the sale of inheld or trained, or quartered, or where ships are toxicating liquors in ten-mile zones around being built under contract with the government of the United States in time of war, in any forts, camps, arsenals, and shipyards to the branch of the army or navy of the United soldiers within said ten-mile zone. It assigns States."
no other reason and states no other proposiThere are other matters mentioned in the tion. This is interdicted by the federal Conenacting clause, but they all pertain, as does stitution, for the federal government has abthat already quoted to a state of war. solute control of the army and military matSection 1 of the act provides that:
ters to the exclusion of the state. This does “From and after April 15, 1918, it shall be not militate against the right of the state of unlawful for any person in time of war between Texas to repel invasion of its territory, but the United States and any other nation or coun- here there is no pretense of an invasion of try to sell, barter or exchange any spirituous, vinous or malt liquors, or medicated bitters Texas soil, or that the bill was enacted becapable of producing intoxication, within ten cause of that reason. Every feature of the miles of any part of the land or buildings oc- bill and word of it excludes that idea. The cupied or controlled by the government of the act, therefore, may be stated in a general United States,” etc.
way to be a war measure, designed to control Section 2 provides:
the military department of the United States "It shall be unlawful for any person, firm or corporation, in time of war between the United army and navy and shipyards, and is a proStates and any other country, to ship or trans- hibition law of the most stringent and drasport by or over any common carrier, express, or tic form. service car, any spirituous, vinous or malt liq
Judge MORROW is also correct in his stateuors, etc., into the zone or territory within 10 miles of any part of the land or buildings oc- ment that the bill as a war measure is not cupied or controlled by the United States gov- justified by either express or implied power ernment or any department thereof," etc.
in the state Constitution, or that might be exSection 2a provides:
ercised by the Texas Legislature. This would "It shall hereafter be unlawful for any per- be placing the military above the civil auson in time of war between the United States and any foreign country, to sell, barter, or ex- thorities, as well as an invasion of the power change any spirituous, vinous or malt 'liquors, conferred upon the federal government. It etc., within ten miles of any place used as a would be an attempted resumption of that yard or place where ships are being built under delegated authority. As a general proposicontract with the government of the United tion, it is here stated as a safe rule that no States." Section 3 provides:
implied power exists, unless it is preceded "It shall be unlawful for any person, in time by or bottomed upon an express grant of auof war between the United States and any other thority. In this instance there was not only country, to carry, in any manner, any spiritu- no express or implied authority for the enous, vinous or malt liquors, etc., into the zone actment of this bill, but Texas by her deor territory within ten miles of any part of the liberate act conferred that power upon the land or buildings occupied or controlled by the United States government or any department federal government. This excludes state au
. thereof,” etc.
thority to declare war or to enact war measSection 3a excepts out of the provisions the ures. A discussion of that subject would be sale of wine for sacramental purposes and here without any particular profit. That we alcoholic liquors used as medicine, under are engaged in a great war is evidenced by circumstances prescribed in the act. Section the current history of the times, and this 5 provides a penalty of not less than two nor shows practically a war of world-wide promore than five years for each separate viola- portions, in which the government of the Unittion of any of these provisions. Section 6 ed States is taking a bold foremost posiprovides for injunction proceedings. Section tion and entering into it with the strongest 7 gives preference to cases arising under this hand possible. The direction of these affairs act to other cases on the docket. Section 8 has been confided to the federal government, provides that, if any section, or part of this with the President as Commander-in-Chief of act be held unconstitutional or invalid, such the armies, and it is not the province of Texas holding shall not affect any other portion of to undertake to direct war measures. Milithe act. Section 9 is the emergency clause, tary laws, therefore, belong to the federal and reads as follows:
and not the state government.
As before “Whereas, there are many points in Texas stated, this act cannot be justified as a war where soldiers, sailors, marines and aviators are measure, and, that being its only purpose, it being trained for service in the army and navy is illegal and void. of the United States, near which liquor is being
The application for the writ of habeas corsold to the great injury and detriment of the morale and efficiency of said troops, there ex- pus is dismissed and denied in Judge MORists an emergency and an imperative public ROW'S opinion because, as stated, applicant