Longmire v. State

The opinion of Judge Harper herein is the severest blow to the enactment of valid laws regulating the use, handling, dealing in and sale of intoxicating liquors, and their enforcement, that has ever been rendered by this or any other court, as I see it. With all due respect, I think it is extreme and radical against their enactment and enforcement. It is directly contrary to all the legislation of this State on that subject from its creation, down to the enactment of the Allison Act. Followed to its logical sequence, it wipes the Allison Act from the statute book.

Prior to the Allison Act it was known of all men that the offices of the express companies doing business in the prohibition territory of our State were successfully used by the dealers as the distributing place of their intoxicating liquors. The express companies' offices took the place of, if they were not in reality, saloons in our prohibition territory. It was in this way, principally, the "bootlegger" got his supply of such liquor to carry on, and prospered, in his unlawful avocation of sneaking around and selling it.

It has always been the boast of the liquor dealers that "prohibition don't prohibit." That "more liquor is sold in prohibition territory after prohibition is adopted than before." In some of our prohibition territory this was, perhaps, true, in a large measure, if not wholly, because of the fact that our express companies were used by the dealers as saloons, and to stock up the "bootleggers" from day to day. These conditions became intolerable to our people in such territory, and they loudly called upon our executive and legislative departments to stop this state of affairs.

The people in our prohibition territory had constitutionally and legally, by the proper majority vote, determined they wanted such laws enacted and enforced, as would effectually make "prohibition prohibit," and prevent "more liquor from being sold in such territory after prohibition had been adopted than before." They had a right to demand such laws and their enforcement. No one had the right to say them nay. Every law-abiding citizen ought to have done what they reasonably could to respond favorably to their just demand. Our Governor, in proper response to this demand, at the first special session of our Thirty-third Legislature in July, 1913, called upon, and authorized our Legislature to enact such legislation. To the gratification of both "pro" and "anti" *Page 640

said Legislature nobly responded, and enacted the Allison Act, which was approved by our Governor on August 21, 1913. This Act, in truth and in fact, had the effect to "make prohibition prohibit." It stopped the express companies from being saloons in prohibition territory. It stopped the liquor dealers from daily, through the express companies, stocking up the "bootleggers" and sending them out on their unlawful avocation. It is well known all over the State that from the time the Allison Act went into effect (or rather, was supposed to go into effect), November 17, 1913, until the decision in the Peede case was rendered, October 14, 1914, prohibition was actually and in fact in force and effect in all prohibition territory in our State; but that since then old conditions have returned — the express companies in our prohibition territory have again become saloons, and through them our prohibition territory is flooded with liquor, the "bootlegger" is thereby daily supplied, and he is again "spreading himself as a green bay tree."

As my brethren, in the Peede case, 75 Tex.Crim. Rep., 170 S.W. Rep., 749 , from my viewpoint, erroneously held that non-residents of our State, through the express companies, could with impunity, ship and deliver liquor in any quantity, at any and all times, to any and all persons, provided they got it under the guise it was for their "personal use or that of their families," they just had to hold, that the resident liquor dealers of our State could also so ship and deliver it with like impunity. Hence their decision in this case.

I concur in that part of Judge Harper's opinion wherein he holds:

1. That with reference to the shipment and delivery of intoxicating liquor wholly within this State, "Our State legislative body alone has authority to deal, and in so far as it may be necessary to protect the public health, public morals and public welfare, their will as expressed into law is final and supreme." (Italics mine.)

2. "The police power includes the right to regulate, control and prohibit occupations which endanger the health, morals and safety of the general public. The police power is inherent in government, and may be exercised by every sovereign State through its law-making agency, independent of any specific or general grant of constitutional express authority." Again, "the police power is not abrogated by the local option law (constitutional provision), but it is the duty of the Legislature to enforce the will of the people." (Italics mine.)

3. That under section 20, article 16 (our local option constitutional provision), "the Legislature has not only the authority but it is under obligation to pass all such laws as may be necessary to render that right effective — to pass all needful laws to prevent illegal sales." That "the purpose of prohibition is to prevent the thing prohibited, and this provision of the Constitution prescribes no scheme of legislation by which this may be done, but leaves the choice of methods to the law-making power. There is nothing in the provision which should be construed as denying the power to prevent the sales which are prohibited by any legitimate remedies appropriate to that end. Prevention of crime is one of the objects to which the most anxious thoughts and the most *Page 641 constant efforts of thoughtful legislators are directed, and the dealing with the steps preparatory to commission is a favorite method." And

4. "Instead of section 20, article 16, being an implied limitation on the power of the Legislature to pass all necessary laws to render effective the prohibition law wherever adopted, if the Legislature had not already possessed the authority by virtue of being the representation of sovereignty the authority to pass all necessary law, to render effective the prohibition law wherever adopted, would be necessarily implied by virtue of said provision."

But what does it avail to hold in general platitudes, the Legislature unquestionably has all this power and authority and duty, and then when it properly exercises that power and authority and complies with that duty, and has enacted a valid law which, if enforced, will prevent the unlawful sale of liquor in prohibition territory, to say to it, and the people in such territory, "Oh! no; you have gone too far (or not far enough). You have enacted a law which will actually make `prohibition prohibit,' and which will prevent the express companies from being saloons, and the `bootlegger' from, through the express companies, daily stocking up, and plying his unlawful avocation in our prohibition territory, and thereby actually prevent sales

of liquor in such territory. As you have done this, we will now hold, that the judges of this court, and not you, have the say of what law you may pass to effect these objects, — we will hold that you shall not thus prevent unlawful sales in such territory. You may do so some other way, but not this way." Of course this is not the exact language of the opinion herein, but as I see it, is unquestionably to that effect.

In other words, as I see it, the effect of the opinion herein is to tear from the statute book the Allison Act, because section 9 thereof permits "any person for the use of himself or the members of his family residing with him to personally carry such liquor" into prohibition territory. That because the law does not expressly say to every person, "touch not; taste not; handle not" the unclean thing, therefore the Legislature can make no reasonable regulation by which you can touch and taste it, and yet prevent you and others from making unlawful sales thereof.

Both the legislative and executive departments of our State, — the legislative by enacting, and the executive by authorizing and approving the Allison Act, under their constitutional oaths, which is the same the judges of this court take, said that said Act and section 9 thereof, was a reasonable regulation, and had for its object, and would have the effect, as it did have the effect, to prevent unlawful sales of liquor in the prohibition territory of this State. But Judges Harper and Davidson, in substance, say: "Nay, verily — we will say it will have no such effect, and, therefore, our say shall prevail over what both you other two great departments of this State say."

By this decision I think the people of the State must take notice that where our Constitution says the Legislature alone

shall have power and authority to enact laws to enforce prohibition as in its judgment is best, *Page 642

and it is the bounden duty of the Legislature to do so, yet, henceforth, two members of this court can substitute their

judgment for that of the Legislature and Governor, and that hereafter when the legislators want to enact such a law they must first get this court, in advance, to tell them that their judgment accords with that of the judges of this court. In some States such an emergency, as to the constitutionality of proposed legislation is provided for, but, of course, where that is the case, provision ought to be made whereby the judges will stand "hitched" — be concluded by their advance opinion. Our Constitution provides for no such matters. It seems to be customary with us that if the legislators are in doubt of the constitutionality or validity of a proposed law to sometimes submit such questions to our Attorney General's department; and likewise, after an Act is passed by the Legislature, and is submitted to the Governor for his approval or veto, if in doubt, the Governor submits the question to the Attorney General. Of course, the Attorney General's opinion is not conclusive nor binding on either the legislators or Governor, nor is the opinion of either, or all of them, binding on this court, or any member of it — it merely may have weight and be more or less persuasive.

The State of Mississippi has prohibition laws in some of its territory just like our laws. For the purpose of more effectively preventing unlawful sales of liquor therein, it passed a law making it an offense to sell malt liquor, which has no alcohol whatever therein, in such territory. The Supreme Court of the United States in Purity Extract Co. v. Lynch, 226 U.S. 192 , expressly held said law valid, saying: "It was competent for the Legislature of Mississippi to recognize the difficulties besetting the administration of laws aimed at the prevention of traffic in intoxicants. . . . In thus dealing with a class of beverages (beer) which in general are regarded as intoxicating, it was not bound to resort to a discrimination with respect to ingredients and processes of manufacture which, in the endeavor to eliminate innocuous beverages from the condemnation, would facilitate subterfuges and frauds and fetter the enforcement of the law. A contrary conclusion, logically pressed, would save the nominal power while preventing its effective exercise." Further saying: "With the wisdom of the exercise of that judgment (of the Legislature), the court has no concern. . . . To hold otherwise would be to substitute judicial opinion of expediency for the will of the legislative — a notion foreign to our constitutional system."

That court cites many other cases in that opinion, all to the same effect. And to the same effect is Patsone, etc., v. Penn, etc., 232 U.S., 138 , reported in the issue of February 15, 1914, of the Law. Co-op. U.S. Supreme Court advance opinions. In my dissenting opinion in the Peede case I cite and quote some of them. They are applicable here.

Carried to its necessary logical sequence, Judge Harper's opinion herein makes void and invalid all those provisions of the Allison Act which makes it an offense for any druggist, owner, etc., of any educational, etc., institution, hospital, owner, etc. (secs. 7 and 13), to make the affidavit therein required; and also that provision in said sections *Page 643

which makes it an offense for any of such persons to fail or refuse to file such affidavit with the clerk, because, as the Legislature has made it lawful for said persons to get liquor for their lawful uses, it is without authority to hamper them with making or filing such affidavit. So, also, would those provisions of our statute making it an offense to label shipments of liquor to prohibition territory (art. 606, P.C.), and making it an offense to deliver such shipment of liquor to any other than the consignee in person, and other of our laws, because as every person has the right to get liquor for his own use in any and every way and in all quantities, the law must not hamper him by any such restrictions as will make it the least inconvenient to him to get liquor, even though the Legislature is trying its best, by such regulations, to thus prevent the unlawful sale of such liquor.

But, as I see it, it is entirely useless for me to further discuss the question. The fiat has gone forth that the Allison Act must be held invalid and void, at least so far as it makes prohibition prohibit, and it is so held in Judge Harper's opinion in this case, and in the companion case of Ex parte Lewis Hopkins, in an opinion written by Judge Davidson, this day delivered.

I most respectfully but earnestly dissent.