Appellant has filed a motion for rehearing herein, and presented it in a way to deserve, and it has received our most thoughtful consideration.
In his first assignment he raises a question not presented in his original brief, and not raised in the trial court, yet it is a fundamental question and he is entitled to have it considered. He contends: "The court erred in affirming the judgment in this case because chapter 20 of the Acts of 1909, levying a tax upon the business of selling liquor by soliciting and taking orders therefor in local option territory, and also levying a tax upon persons, firms, etc., pursuing the business of operating a cold storage in local option territory, is unconstitutional and void." If the Act in question is violative of any provision of the Constitution of this State, of course it is void, and no one should be punished thereunder, and this is a question that we think can be raised at any stage of the proceedings. Appellant states he is aware of the decisions of this court in the cases of Edmanson v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 887, and Ex parte Flake, 67 Tex.Crim. Rep., 149 S.W. Rep., 146, in which we sustained the constitutionality of the Act in question, but he says he does not understand that the statute was directly attacked on the ground of its invalidity by reason of the fact that it is an Act the effect of which is to license the sale of liquor in territory where it is prohibited. If this was the proper construction of the Act we would readily agree with appellant that the Act in question was unconstitutional. Appellant cites us to the case of State v. Texas Brewing Co., 157 S.W. Rep., 1166, a decision by our Supreme Court (Justice Hawkins at the time entering a dissent), as sustaining his contention, and we frankly admit if that court intended to hold that the Act licensed the sale of liquor in prohibition territory, which construction is placed on the opinion in question by appellant, and such opinion is correct in so holding, then its conclusion would be unavoidable; but does the opinion so hold, and if it does, did the Supreme Court properly construe the intent and purpose of the Legislature in enacting that law?
The Act in question reads:
"In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale or intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, association of persons and corporations that pursue the business of selling or offering for sale any intoxicating liquors by soliciting or taking orders therefor *Page 195 in any quantities whatsoever, in any such county, justice precinct, town, city or other subdivision of a county, an annual State tax of four thousand ($4000) dollars, and each county, and also each incorporated city or town may levy an annual tax not exceeding two thousand ($2000) dollars in any such county or incorporated city or town where such business is pursued."
It is a matter of common knowledge in this State that prior to the adoption of this Act in all territory where prohibition had been adopted, liquor dealers residing outside of such territory had adopted the method of sending their drummers and agents into such territory to "solicit orders for the sale of such liquors," and when such persons were prosecuted for transacting such business this court had held that the sale did not take placewhere the order was solicited, although it contemplated a delivery, but the sale took place where the order was received. In Bruce v. State, 36 Tex.Crim. Rep., this court, in an opinion by Judge Hurt, approved the following rule of law announced in Black on Intoxicating Liquors: "It is generally held that where a person living or doing business in one State sends his agent into another State to solicit orders for goods, and the agent there takes orders and sends to his principal's place of business, and the latter fills the orders, and without any special arrangement as to the manner and place of delivery, delivers them to the carrier in his own State, to be transported at the expense of the purchaser to the latter's place, the place of sale is in the State where the agent's principal does business."
In the case of Merriweather v. State, 48 Tex.Crim. Rep., in an opinion by Judge Davidson, this court held that where an agent of a liquor dealer doing business in Waco, McLennan County, sent his agent into Hill County (a prohibition county), the agreed facts stating that "appellant approached the witness and personally solicited him to give him an order for whisky to be sent from the liquor house of E.P. Gates at Waco to the witness at Hillsboro, for which liquor house appellant was then acting as agent in Hillsboro; that witness consented to give the order — the appellant handed witness a printed order to sign — he signed it and handed it back to the appellant; witness did not mail the order, and furnished no postage to send it, and the whisky so ordered was to be shipped to him at Hillsboro the next day, and it came accordingly. The evidence showed that on other occasions appellant solicited and took a number of orders from witness, and various witnesses testified to similar transactions: Held: Thisconstituted a sale in Waco and not a sale in Hillsboro. And the opinion says: `Such has been the holding in this State in an unbroken line of decisions, and such is the holding of the Supreme Court of the United States.'"
In Ex parte Massey, 49 Tex.Crim. Rep., 92 S.W. Rep., 1086, this court held, speaking through Judge Davidson: "It is not the law, if a party solicits or takes an order in a local option district to deliver intoxicants in such district, that it constitutes a sale," citing Weldom v. State, 36 Tex. Crim. 34; Keller v. State, 87 S.W. Rep., 669; James v. State,45 Tex. Crim. 592, 78 S.W. Rep., 951; Sedgwick *Page 196 v. State, 85 S.W. Rep., 813; Parker v. State, 85 S.W. Rep., 1155; Joseph v. State, 86 S.W. Rep., 326; Luster v. State, 86 S.W. Rep., 326; Dupree v. State, 91 S.W. Rep., 578; Newberry v. State, 44 S.W. Rep., 843.
In Keller's case, supra, this question is discussed at length in an opinion by Judge Davidson and the authorities collated. In that case the court was discussing the statute that had been passed by the Legislature which provided, "that in all contracts of sale and shipment of intoxicating liquors from any point within this State, where the terms of said contract is `collect on delivery' that the same is and shall be a sale where said goods are delivered and paid for; and providing further that where orders are solicited and such order is subsequently filled, the sale shall be construed to have been made at the place wheresuch order was solicited." In passing on that statute this court said:
"Now it will be noted that until the Sinclair case, supra, was decided, in November, 1903, the Texas Reports, criminal and civil, so far as we have been able to ascertain, furnish no dissenting opinion from the rule announced in Bruce, Freshman, and that line of cases. So, until more than two years after this Act of the Legislature, it was unquestionably the law, without dissent, that the sale was at the point of shipment, and not at the point of destination, and appellate courts in this State had never questioned that rule. The passage by the Legislature of the above Act can not but be regarded as an express recognition that the rule of law was so well and thoroughly settled and recognized that the sale was at the point of shipment that it required legislation to change it; else this Act was totally unnecessary. By the passage of this Act that body undertook to set aside the well-settled law as understood from the beginning in Texas. It is not only an express recognition by the legislative body that such was the law as to the place where the sale occurred generally, but it is further an express recognition of the fact that in passing the Act they were culling from this general law, and making an exception thereto, sales of intoxicating liquor. They also thoroughly understood that they were leaving by this Act the law as settled in regard to all other sales except intoxicating liquors. Not only so, but that Act is further an express recognition of the fact by that body that the sale of all intoxicants should be under the law as it had been always, except where that sale occurred by virtue of a C.O.D. contract or shipment. We have held this Act unconstitutional, and upon a review of the question we have been confirmed in the correctness of that conclusion. The provision of the Constitution in regard to local option only authorizes the people of a county, a justice precinct, city or town, etc., to prohibit the sale of the intoxicants `within the prescribed limits'; that is, the limits of the territory in which the law has been voted into operation. They could vote on no other proposition, except the prohibition of the sale of the intoxicants `within the prescribed limits' or given territory, because this is the extent of the constitutional authority. The inclusion of this matter is the exclusion of all others. This would prohibit the Legislature or the people voting on local option prohibiting *Page 197 the sale outside the `prescribed limits.' Therefore, if the sale occurs outside the local option territory, the Legislature has no authority to prohibit the purchaser from carrying such intoxicants into the prohibited territory. The question is one only of sale within the local option limits. The Constitution does not make or undertake to make contracts between individuals, nor does it interfere with the right of contract, nor does it undertake to impair the obligation of contracts. It simply prohibited the sale within such territory."
It is thus seen that the Legislature passed an Act declaring that "where an order is solicited and subsequently filled that the sale shall be at the place where the order was taken," and this court, through Judge Davidson, in an exhaustive opinion, held such Act unconstitutional and violative of both the State and Federal Constitutions, and yet our Supreme Court, in June, 1913, in the case cited by appellant, State v. Texas Brewing Co., supra, if it is to be construed as contended for by appellant, says such an Act is not unconstitutional, and that it is the law even without the Legislature so declaring, for it says this law which levies an occupation tax on the business of "making of sales by soliciting and taking orders therefor" necessarily includes the right to deliver the liquor in the county where the order is taken, and therefore the sale is in the prohibition county, and the Legislature is without authority to license the sale of liquor in prohibition territory.
To the proposition that the Legislature is without authority to "license the sale of intoxicating liquor" in territory where prohibition has been adopted (except for the purposes the law authorizes) we readily agree, and do not think that anyone will question that this is the law. Yet we do not think this was the intent nor purpose of the Legislature in passing the Act levying a heavy tax on those who pursued the business of taking orders for the sale of liquor in prohibition territory. This court in an unbroken line of decisions has held and still holds that this is not a sale in the prohibition territory, but that the transfer of title takes place at the point where the order is accepted and filled and delivered to the carrier for transportation to the person who gave the order. The Legislature being confronted with the decisions of this court that they had no authority to declare that the sale was at the point where the order was taken and where it was contemplated the goods should be shipped, and being confronted with the known conditions, that so soon as prohibition was adopted liquor dealers established agencies in the prohibition territory to solicit, take and forward orders for intoxicating liquors, and by such means effectively annulling, or at least impairing the efficiency of the prohibition laws and thereby thwarting the will of the people who adopted the law; and being further confronted with the proposition that soliciting and taking order establishments were often used as a cloak to cover up the illegal sales of intoxicating liquors, sought to regulate and control, if not prohibit, the business of soliciting and taking orders for intoxicating liquors in prohibition territory. And as said by the Supreme Court of the United States in the case of Delemater, 205 U.S. 93, the soliciting and taking of orders for the sale of *Page 198 intoxicating liquors is an accessory business which the State has the right to control or prohibit in prohibition territory since the passage of the Wilson Act by Congress. For a full discussion of this question see the able opinion of Chief Justice White in that case.
The Thirty-first Legislature not only passed the Act in question levying a $4000 license fee on the business of soliciting and taking orders; it also passed an Act making it a felony to pursue the occupation of selling intoxicating liquors in prohibition territory punishable by imprisonment in the penitentiary for not less than two nor more than five years, and making a single sale of intoxicating liquors a felony punishable by imprisonment in the penitentiary for not less than one nor more than three years. (Session Acts, 1909, pp. 284 and 356.)
To say that the Legislature intended in the statute licensing the soliciting and taking orders to license the sale of liquors in the prohibited territory, and then say that one who does so do was guilty of a felony and should be imprisoned in the penitentiary, would be to attribute to them an absurdity of which no sane body of men would be guilty. Sutherland on Statutory Construction says (sec. 218): "It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject is once clearly ascertained and its general intent, a key is found to all its intricacies — general words may be restrained to it, and those of narrower import may be expanded to emgrace it to effectuate that intent." Again in section 288 he says: "Where enactments separately made are read in pari materia, they are treated as having formed in the minds of the enacting body parts of a connected whole, though considered by such body at different dates. Such principle is in harmony with the actual practice of legislative bodies, and is essential to give unity to the laws, and connect them in a symmetrical system, and the object is to carry into effect the intention. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in several parts and provisions. For the purpose of learning the intention, all statutes relating to the same subject are to be compared, and so far as still in force brought in harmony." 1 Kent's Com., 463-4; State v. Williams,13 S.C. 558; State v. Baltimore R.R. Co., 12 Gill J., 399, 433; Wakefield v. Phelps, 37 N.H. 295; Mayor v. Howard, 6 Har. J., 383; Church v. Crocker, 3 Mass. 21; Holbrook v. Holbrook, 1 Pick., 254; Forqueran v. Donnally, 7 W. Va. 114; Earl of Ailesbury v. Patterson, 1 Doug., 28; Harrison v. Walker,1 Ga. 32; Coleman v. Davidson Academy, 1 Cooke (Tenn.), 258; State v. Bell, 3 Fred. L., 506: Henry v. Tilson, 17 Vt. 479; Fort v. Burch, 6 Barb., 60; Ranoul v. Griffie, 3 Md. 54. Again he says in section 292: "The object sought to be accomplished exercises a potent influence in determining the meaning of not only the principal but also the minor provisions of a statute. To ascertain it fully the court will be greatly assisted by knowing, and it is permitted to consider the mischief intended to be suppressed, or the necessity of any kind which induced the enactment." *Page 199 Ruggles v. Illinois, 108 U.S. 526; Big Black, etc., v. Com., 94 Pa. St., 450; Dodge v. Gardner, 31 N.Y. 239; Clark v. Janesville, 10 Wis. 136.
In Am. Eng. Ency., volume 28, page 620, the rule is said to be, "In arriving at the intent of the Legislature in enacting a statute, not only must the whole statute and every part of it be considered, but where there are several statutes in pari materia, they are all, whether referred to or not, to be taken together and one part compared with another in the construction of any material provision. . . . Especially does this rule apply to statutes passed at the same session of the Legislature. If such statutes are in pari materia they must be construed together, and if possible, all must be allowed to stand, and effect must be given to each of them, regard being had to the intention of the Legislature. So contemporaneous legislation, not precisely inpari materia with the statute to be construed, may be referred to on the question of intent. Not only may contemporaneous and prior statutes be considered in construing a given act, but a subsequent statute may often aid in the interpretation of the prior one."
In Cyc., volume 36, under title "Construction of Statutes," it is said: "Every statute must be construed with reference to the object intended to be accomplished by it. In order to ascertain this object it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one; and the statute should be given that construction which is best calculated to advance its object, by suppressing the mischief and securing the benefits intended. . . . In the construction of a particular statute, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law. The endeavor should be made by tracing the history of legislation on the subject to ascertain the uniform and consistent purpose of the Legislature. With this purpose in view, therefore, it is proper to consider, not only the acts passed at the same session of the Legislature, but also acts passed at prior and subsequent sessions."
When our Supreme Court was first organized, in the case of Fowler v. Poor, Dallam, 401, Chief Justice Hemphill said: "It is our duty to construe all statutes in relation to the same subject matter in such a manner that they will stand together and have concurrent efficiency."
In Taylor v. Hall, 71 Tex. 213, Chief Justice Gaines, speaking for our Supreme Court, said: "It is a rule in the interpretation of statutes that all acts relating to the same subject matter may be considered. We must read the Act in question in the light of former legislation," citing Fowler v. Poor, supra, and a number of other cases by our Supreme Court; also Sedgwick on Statutory Law, 247; Bishop on Statutory Crimes, sec. 86, and cases cited.
In Scoby v. Sweatt, 28 Tex. 713, the Supreme Court held, speaking through Chief Justice Moore, "It is universally admitted principle that statutes upon the same subject must be construed together and with reference to each other. If it can be done consistently with their provisions, *Page 200 effect shall be given to all enactments on the subject. This legislative intent is to be ascertained and followed. Where there is apparent conflict, general intention is limited and controlled by special intention."
In Hanrick v. Hanrick, 54 Tex. 101, p. 109, the Supreme Court held: "There is no doctrine in relation to the construction of statutes more certainly settled than this, that all acts in relation to the same subject matter are to be taken in parimateria and considered as one act," citing Scoby v. Sweatt, supra; Neill v. Kosse, 5 Tex. 32; Cannon v. Vaughn, 12 Tex. 402 [12 Tex. 402]; Street v. Commonwealth, 6 Watts Serg., 209; Bank v. Commonwealth, 10 Barr., 448; Brown v. Com'rs, 21 Pa. St., 42; Commonwealth v. Herrick, 6 Cush., 468; Williams v. Potter, 2 Barb. (S.C.), 316; Potters' Dwarris Stat., 189. See also Bryan v. Sundberg, 5 Tex. 417; Selman v. Wolfe, 27 Tex. 69 [27 Tex. 69]; Keenan v. Perry, 24 Tex. 253; Bonner v. Hearne, 75 Tex. 242; Lewis v. Aylott,45 Tex. 190; Duncan v. Taylor, 63 Tex. 645 [63 Tex. 645]; Kampman v. Tarver, 87 Tex. 491 [87 Tex. 491]; Schendell v. Rogan, 94 Tex. 585 [94 Tex. 585]. These citations from our Supreme Court could be continued at length, but we deem it unnecessary, and will now refer to a few of those of our own court so holding. In Ex parte Schmidt, 2 Texas Crim. App., 196, this court held: "It is a well settled rule of construction of statutes, and for the arriving at the legislative intention, that all laws inpari materia, or on the same subject-matter, are to be taken together in order to arrive at the result. All acts in parimateria, said Lord Mansfield, `are to be taken together as one law.' Our Supreme Court says that the same Legislature is supposed to be actuated, in all that it does, by the same mind, and to have at all times had the same object and policy, and that it will not change its mind from day to day during the same session, and nothing short of expressions so plain and positive as to force upon the mind an irresistible conviction will justify a court in presuming that it was the intention of the Legislature that their acts passed at the same session should abrogate and annul one another. The decent respect due a co-ordinate department of the government would seem to forbid that such a presumption be indulged by the courts. Cain v. State, 20 Tex. 355."
In Mock v. State, 11 Texas Crim. App., 56, this court held: "In pursuance of the well settled rule of construing statutes that, in order to determine the legislative intent, it is proper to consider all the statutes in pari materia, we will look to all the laws in force on the subject in order that we may arrive at a proper construction and application of these portions of the penal laws by which those who fail to perform the duties required of them by the general law become amenable to criminal prosecution."
In Walker v. State, 7 Texas Crim. App., 245, this court said: "The object, and only object of judicial investigation in regard to the construction of doubtful provisions of statute law is to ascertain the intention of the Legislature which framed the statute. Every interpretation *Page 201 that leads to an absurdity ought to be rejected. Every legislative act must have a reasonable construction."
In Ex parte Gregory, 20 Texas Crim. App., 210, this court said: "It is provided in our statute that `in all interpretations the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy.' (Rev. Stats., art. 3138, subdiv. 6.) And our Penal Code provides that `every law upon the subject of crime shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects.' (Penal Code, art. 9.) It will be perceived from the provisions of our statute above quoted, that they are in accord with the rules of construction applicable to ordinances. They contemplate a reasonable construction, that is, a construction which will give effect to the intention of the legislative power enacting the law, and in interpreting the law all reasonable intendments which help to sustain and make the law operative are to be indulged and weighed by the court."
These citations and excerpts might be continued on down to the present day, both from the decisions of this court and the Supreme Court, but they sufficiently demonstrate the rule of construction that has always and does now prevail in this State, and with those rules of construction before us, if it is intended by the Supreme Court in the case of State v. Texas Brewing Co., to hold, as contended by appellant, that the law levying a $4000 license fee on those making sales by soliciting and taking orders therefor in prohibition territory, would authorize one to engage in the sale of such liquors in prohibition territory, we can not concur in such construction, but think it wholly wrong. As said hereinbefore, in territory where local option was adopted, and the sale of liquor prohibited, dealers licensed in territory where the sale was permitted, had adopted the policy of securing agents in prohibition territory, or by sending their agents in such territory to solicit orders for intoxicating liquors, and fill such orders by shipping to the one who gave the order. Our court, and the Supreme Court, in the cases above cited, hold that the sale is not where the order is solicited, but at the point where the order is filled and delivered to the carrier. This was the evil confronting the Legislature, and the evil for which they were seeking a remedy — the regulation, if not the prohibition of soliciting and taking orders in prohibition territory to be filled where the sale of liquor was licensed, and the Legislature had no thought of licensing the sale of liquor in prohibition territory, and to give such construction to their language would be doing violence to their intent and purpose and the language of the statute in question. To make it plain that such was not their intent and purpose, it is only necessary to note that the same Legislature increased the punishment for making a single sale of intoxicating liquor in the prohibited territory — making it a felony and punishable by imprisonment in the penitentiary, and to further emphasize that fact, it will be noticeable that this same Legislature, for the first time, made it an offense to pursue the business of selling such *Page 202 liquors in the prohibited territory, punishing such offense more severely than for making a single sale. Taking these three Acts and construing them together as one Act, as all the authorities both in this State and out of it say should be done, we do not think that anyone can reasonably conclude that it was the intent and purpose of the Legislature, in fixing a license fee on soliciting and taking orders for the sale of intoxicating liquors, to license the sale of such liquors in such territory. It was not the intent of the Legislature to license the sale of such liquors in the prohibited territory, but in addition to imprisoning one in the penitentiary if he did do so, they decided to regulate and control the accessory business of soliciting and taking orders in such territory, if not prohibit it by making the license fee so high that no one could afford to pay it, but if anyone should take out the license, to require an application to be filed with the county clerk that he might be known, and the territory in which he would engage in soliciting orders, the better to enable those entrusted with the enforcement of the law to prohibit sales in such territory.
Not only under the well known rules of statutory construction above quoted would it do violence to the intent and purpose of the Legislature to hold that they by this Act intended to license sales of liquor in the prohibited territory, and violence to the language by them used in the statute, but when we consider that this court and the Supreme Court in an unbroken line of decisions have held and still hold that when one solicits an order for intoxicating liquor in prohibition territory, that the sale takes place where the order is filled and delivered to the carrier, with which decisions the Legislature was familiar, to say that they intended by this Act to license sales in prohibition territory, and for that reason the statute was unconstitutional, would be to attribute to them an unreasonable intention, and one which, in the light of the opinions of this court and the Supreme Court, as to the place of sale when an order is taken, would be an absurd intent. The statute is not subject to such construction, and we can hardly think the Supreme Court intended to so hold, but as such construction of their opinion is contended for by appellant, we have discussed it from that viewpoint, and must say if it does so hold we can not follow it. And while we have the utmost respect for the ability and learning of the members of the Supreme Court, and rely upon and follow their opinions in matters of civil law, yet this court has final jurisdiction in criminal matters, and we must follow our judgment. That court is of equal dignity with this court, and their decisions are final in all matters of construing the civil statutes, yet the Constitution of this State has made this court a court of final and supreme jurisdiction in the construction of criminal statutes, and the enforcement of the law against crime. The soliciting and taking of orders for the sale of intoxicating liquors in prohibition territory without paying the fee therein fixed was made a penal offense by the Legislature in this Act in section 5 thereof, and punishable as therein stated. As to the wisdom of enacting this law, it is not our province to discuss nor decide, for in the exercise of the powers conferred on *Page 203 them by the Constitution, the Legislature has seen proper to enact this law, and we can not declare it unconstitutional by giving to the language of the statute a strained construction, and one it is not susceptible of in the light of all the opinions of this court, that a sale did not take place in the prohibited territory by soliciting or taking an order for intoxicating liquors in such territory. It has been held by this court that whenever a legislative Act can be so construed as to avoid conflict with the Constitution, such construction will be adopted by the courts. (Ex parte Mabry, 5 Texas Crim. App., 93.) Again it is held: "In construing legislative Acts, courts must so interpret them as to harmonize their provisions with the Constitution if possible." (Ex parte Murphy, 27 Texas Crim. App., 492.) And our Supreme Court has so held in Pickle v. Finley,91 Tex. 484, wherein Chief Justice Gaines said: "It is a well settled rule of construction that if an Act of the Legislature be capable of two constructions, one of which conflicts with the Constitution, and the other of which does not, the latter must prevail. It is the duty of the courts to construe every Act of the Legislature as to make it consistent if possible with the provisions of the Constitution."
What evil was there which confronted the Legislature at the time this Act was passed? They had passed an Act punishing those who made sales of liquor in prohibition territory, and the same Legislature that passed this Act increased the punishment for making such sales. The evil and only evil to which their mind was directed in the passage of this Act was the one that had grown up wherever prohibition had been adopted — the soliciting and taking of orders for liquors to be filled by licensed dealers elsewhere to be shipped into prohibition territory. They were seeking to regulate and control, if not prohibit this evil, and this evil alone. Their intent and purpose is manifest by the language of this Act alone, but if not, then certainly it is made manifest by the other Acts passed by the same Legislature. To strike down this Act would leave unregulated and unrestrained this evil, and any and all persons could pursue it without leave or license, and thus, in a measure, at least, render ineffectual the will of those people who in their wisdom have seen proper to adopt the prohibition laws to get rid of the evils incident to the sale and use of intoxicating liquors. While we regret to do so, yet if the construction contended for by appellant is the proper construction to give the opinion of the Supreme Court in the case of State v. Texas Brewing Co., supra, and is the one intended by the court, we think it erroneous and an improper construction of the Act of the Legislature, and this court will, as it deems it its duty, enforce its provisions against all who solicit or take orders for the sale of intoxicating liquors in prohibition territory, and we adhere to the opinions in Edmandson v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 887, and Ex parte Flake, 67 Tex.Crim. Rep., 149 S.W. Rep., 146.
We did not hold in the original opinion, and do not now hold that appellant was guilty of selling intoxicating liquors in the prohibited territory, but only that the facts showed that he was guilty of soliciting and taking orders for the sale of intoxicating liquors in the prohibited *Page 204 territory, which orders the facts show when taken in the prohibition territory were forwarded by appellant to a licensed dealer in Palestine, where the sale is licensed, and by the licensed dealer shipped to appellant at Marshall, which town was in prohibition territory. Appellant received the liquor so ordered by him, and placed it on cold storage, where all those who had given orders called and got it when they desired. We agree that the authorities cited by appellant hold that this did not constitute a sale by appellant, but he was not prosecuted for making a sale of liquor in prohibition territory, but was prosecuted and convicted for soliciting and taking orders therefor.
The other questions raised were discussed in the original opinion, and we do not deem it necessary to do so again.
The motion for rehearing is overruled.
Overruled.