The opinion
DAVIDSON, Judge,
dissenting.
Let is be understood at the outset that there is not known to the Liquor Control Act or to the liquor laws of this state a permit to possess whiskey for the purpose of sale in a wet area. Neither the Texas Liquor Control Board nor the Administrator of the Liquor Control Act has authority to issue such a permit.
Art. 666-15, Vernon’s P.C., sets forth the permits authorized to be issued under the Liquor Control Act. Nowhere therein is provision made for the issuance of a permit to possess whiskey for the purpose of sale in a wet area.
The foregoing must be kept in mind in reaching a conclusion here.
The information under which appellant has been here convicted of possessing whiskey in a wet area for the purpose of sale without having procured a permit required for such privilege reads as follows:
*634 “NOW COMES the Criminal District Attorney of Dallas County, State of Texas, and presents in and to the County Criminal Court No. 2 of Dallas County, State aforesaid, that one IRA FULLYLOVE hereinafter styled Defendant, heretofore on or about the 11th day of April, A.D. 195S in the County of Dallas and State of Texas, did unlawfully then and there possess liquor, to-wit: whiskey, in a wet area for the purpose of sale without first having procured a permit from the Texas Liquor Control Board or the Administrator of the Texas Liquor Control Board to so possess such liquor.”
In my opinion there is no such offense known to or prohibited by the statute law of this state. It is not a violation of any law to commit the act appellant is alleged to have committed.
For that reason, I respectfully enter my dissent to the affirmance of this case.
The conviction purports to have been obtained under Sec. (a) of Art. 666-4, Vernon’s P.C., which reads as follows:
“It shall be unlawful for any person to manufacture, distill, brew, sell, possess for the purpose of sale, import into this state, export from the state, transport, distribute, warehouse, store, solicit orders for, take orders for, or for the purpose of sale to bottle, rectify, blend, treat, fortify, mix, or process any liquor in any wet area without first having procured a permit of the class required for such privilege.”
The gist of the offense there created, and without which there would be no offense, lies in the absence of a permit. To be unlawful the act must be done without a permit; if done with a permit, there is no offense.
The legislative history of the statute mentioned reveals that, prior to 1943, the statute read as above set forth except for the words, “of the class required for such privilege.” Those words were added to the statute in 1943 by Chap. 325, Acts Regular Session of the 48th Legislature.
Under the statute as it existed in 1943 there came on to be considered by this court the case of Anderson v. State, 146 Texas Cr. R. 222, 172 S.W. 2d 310 , in which the accused had been convicted under that statute of possessing whiskey for the purpose of sale in a wet area without a permit. In that case, the information followed the language of the statute as it then existed *635 and merely alleged that the whiskey was possessed for the purpose of sale in a wet area “without first obtaining a permit.” It was contended that it was not unlawful to possess liquor for the purpose of sale in a wet area because the law did not authorize the issuance of a permit or license to do that act and therefore no permit could have been obtained or was necessary therefor.
The majority of this court overruled that contention and sustained the statute in the following language:
“We hold that the permit mentioned in the above quoted article, so far as the sale and possession for sale are involved, means a permit to sell, and that such permit carries with it the privilege, and becomes a permit to possess liquor for the purpose of sale in a wet area.”
By that process of reasoning, the majority of the court reached the conclusion that it was unlawful to possess whiskey for the purpose of sale in a wet area without a permit. Yet there was no way for the accused to obtain such a permit and no such permit was authorized to be issued by any agency, department, or individual of the state government.
The late Judge Hawkins, Presiding Judge of this court at that time, vigorously dissented in that case.
At that time, I was, am now, and have been at all times since thoroughly convinced of the correctness of the views of Judge Hawkins as expressed in his dissenting opinion. To my mind, they are unanswerable.
It was the view of Judge Hawkins that the statute required a permit only to sell whiskey in a wet area and did not require or authorize the issuance of a permit to possess whiskey for the purpose of sale in a wet area, and that “the mere possession of liquor in a wet area for the purpose of sale at some time in the future does not warrant any permit.” It was for that reason the conclusion was reached by him that it was not unlawful for one to possess whiskey for the purpose of sale in a wet area without a permit.
In affirming- this conviction, my brethren reject the reasoning of Judge Hawkins and follow that of the majority of the court as it then existed.
*636 But the majority opinion in the Anderson case, supra, does not necessarily authorize the affirmance of this case because of the change in the statute by the act of 1943, as above pointed out.
It will be noted that the statute in force at the time the Anderson case was written did not specify the kind, character, or description of the permit that was required for one to procure, in order to lawfully possess, whiskey for the purpose of sale in a wet area. By the act of 1943, the legislature added to the statute the words, “of the class required for such privilege,” and thereby designated and described the permit as being that which was “required for such privilege.” In other words, by this addition to the "statute the legislature made it certain and definite that the permit, and only permit, which was required was that which was applied to> and made necessary for the doing of the particular act or privilege. Such was in keeping with the views expressed in the dissenting opinion and contrary to the majority opinion in the Anderson case.
So, under Sec. (a) of Art. 666-4, Vernon’s P.C., as it presently exists, for an act to be unlawful it must be done without a permit where a permit is required for the privilege of doing that act. Unless and until a permit is required as a condition precedent to the lawful performance of that act there is no violation of the law.
The law does not know, authorize, or recognize that a permit may be issued to possess whiskey for the purpose of sale in a wet area. No governmental agency is authorized to issue such a permit. To whom would one apply for such a permit? No one ought to be required to secure a permit to do an act when he cannot obtain such a permit from any source.
In keeping with the views expressed, I refer to the dissenting opinion of Judge Hawkins in the case of Anderson v. State, 147 Texas Cr. R. 410, 181 S.W. 2d 78, at p. 80 , where is demonstrated by a practical illustration the unsoundness of the doctrine that one should be held accountable for the doing of an act without a permit when no permit can be obtained authorizing him to do that act.
There is no law which says that it is unlawful to possess whiskey for the purpose of sale in a wet area without a permit. Yet this appellant stands convicted of that very act and, under the holding of my brethren, must pay the penalty assessed.
*637 I can only protest against such miscarriage of justice. This I respectfully do.