The same question is involved in this case, as I understand it, as in the Edmanson case, 64 Tex.Crim. Rep.. The facts, however, are very different. The statement in the Edmanson case shows that about twenty witnesses for the State testified they went to Edmanson's cold drink stand and gave him orders for intoxicating liquors. These orders were telephoned to Belton to a saloon and the whisky would come usually upon the next train. In some instances the whisky would be shipped in the name of the party ordering it and they would get it front the depot. In other instances appellant delivered the whisky at his place of business. Furness testified he was a member of the firm of Warren Furness. They were in the saloon business, and appellant began ordering whisky from their firm in September and continued this until the following January. In September, October and November his orders averaged about ten dollars a day. During the month of December he ordered between four and five hundred dollars worth of whisky. Edmanson collected the money from all the parties from whom he took the orders and settled with the liquor dealers at Belton. Under the decisions Edmanson was pursuing the business of selling whisky in Lampasas, where his cold drink stand was situated. When he took the orders and the money and sent for the whisky, or when he sent for the whisky and took their money after the whisky reached him and he delivered it there, when ordered in his name, as I understand the decisions in Texas, this was a sale by Edmanson, and the Edmanson case was decided upon that theory.
In the instant case, however, there was a club at Marshall, a subordinate club formed in connection with the Elks Lodge. Quite a number of the members of the Elks order desired to drink beer, others did not. So they organized this subordinate club with by-laws, rules and regulations governing it. Among other matters, they would agree among themselves as to who was to order the beer. Sometimes one *Page 205 member would volunteer his services for a week or such matter and then another. Sometimes the club would select a member. To get their money together for sending for the beer they placed a box in a room and each member desiring beer would put his money in an envelope and place it in that box with his name written upon the envelope. If the party desired twenty glasses of beer he would put a dollar in the envelope. In other words, the amount of money placed in the envelope would indicate the number of glasses of beer the party would desire, rating it at five cents a glass. It was agreed among the parties that this box was put there for that purpose, and they would designate some member of the club to get that money and send it to the place from which the beer was to be shipped. Appellant, a member of this club, was attending to this matter for the club at the time which covers this prosecution.
Without going further into detail, my brethren hold that appellant was, therefore, soliciting orders from members of the club. I do not understand the facts that way, nor do I believe it is a legitimate deduction or conclusion from the statement of the facts. Nor did he or any member contemplate purchasing from appellant. As a member of the club, at the instigation and request of other members of the club, he agreed for the week covering this prosecution to order beer for them. They were soliciting him rather than he soliciting them. They placed the money in the box. He did not solicit them to do it. They appointed him as their agent to take that money and order the beer. Under no possible construction fairly imposed could he be charged with soliciting orders for the sale of beer. He did not sell a single glass of beer, nor offer one for sale, nor contemplate either selling or offering for sale, and no witness, as I understand it, undertook to testify that he did. For the beer a ticket was issued to the party for the number of glasses of beer covering the amount of the money he had deposited in the box. If it was a dollar he got a ticket for twenty glasses of beer. When that was exhausted he could get no more beer until the next order, when he would have to make another deposit. Appellant sold no beer but simply gave the party a ticket indicating the number of glasses of beer he was entitled to have for the money that he had previously deposited. I do not care to make a further statement of the facts. It is also agreed that local option was in effect at Marshall, where all these matters occurred.
Appellant was prosecuted under the Act of the Legislature authorizing any person who desired to sell intoxicants by taking orders to do so by paying the tax specified in the Act of the Legislature. He was charged with a violation of this statute. Had he paid the tax, then he could have sold all the intoxicants he pleased, and take in all the orders he desired, under and by virtue of the terms of that legislative Act, according to the opinion of the majority, but because he did not pay this tax this affirmance was ordered. See Acts of 1909, page 53. That Act by its terms clearly and definitely authorized a party to sell intoxicants in prohibition territory upon payment of the tax. So that there may be *Page 206 no mistake I quote the legislative Act: "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 of 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 orders therefor 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." Then follows the clause authorizing incorporated cities or towns to levy a two thousand dollar tax, which is one-half of the State tax. No fair construction can be placed on this Act except that it justifies and authorizes one on payment of the required tax to pursue the business of selling intoxicating liquors by soliciting or taking orders. That is the language of the statute. This is so understood and held in the Edmanson case. In the Edmanson case I entered my dissent for several reasons, which is shown in the dissenting opinion as reported in 64 Tex.Crim. Rep..
Among other grounds of that dissent, I here notice and reiterate two: First, where local option is in effect, the Legislature is powerless to authorize the sale of whisky or any intoxicant in local option territory; that it is so by the Constitution, and every decision, until the recent opinions by this court, so hold. The first case in Texas reviewing the effect of the local option law was Robertson v. State, 5 Texas Crim. App., 155. The only question in that case was whether or not the State law authorizing selling under saloon license was paramount to the local option law after the local option law had been voted into effect. Upon that question the case came to the Court of Appeals, and the court held, in accordance with the terms of the Constitution, power had been vested in the majority of the voting citizenship of the given territory to vote out the sale of whisky and it at once became the controlling law. This is so by virtue of article 16, section 20, of the Constitution; and it also held when the people had so voted the saloon must cease its selling immediately upon the local option law going into effect; that the local option law was the paramount law, and this, as I understand, has not been questioned until recently. The Edmanson case is in direct conflict with the Robertson case and the Constitution. The Robertson case was followed by a great number of cases, some of which I shall cite: Boone v. State, 12 Texas Crim. App., 184; Donaldson v. State, 15 Texas Crim. App., 24; Ex parte Lynn, 19 Texas Crim. App., 293; Robertson v. State, 12 Texas Crim. App., 541; Gibson v. State, 34 Tex.Crim. Rep.; Rathburn v. State, 88 Tex. 281. Other courts of the Federal Union have followed the same construction. See Rauch v. Com., 78 Pa. St., 490; State v. Yewell, 63 Md. 120; 1 So. Rep., 632; Com. v. Jarrell, 5 S.W. Rep., 763; 5 Dakota, 433, 25 Fla. 347; Bagley v. State, 103 Ga. 388; Com. v. Mueller, 81 Pa. St., 127; Wheeler v. State, 64 Miss. 462; Young v. Com., 14 Bush, 161; 38 Mo., 566; Black on Intoxicating Liquors, 90 to 198.
The second proposition that I desire to here reiterate in that dissent *Page 207 was, at the same session of the Legislature, at page 284, that body passed an Act punishing a citizen for pursuing the business of selling intoxicants in local option territory by confinement in the penitentiary for a period of from two to five years. How these two Acts can stand together is, to my mind, incomprehensible. It is not the law that the Legislature can license the sale of intoxicating liquors in local option territory, because the people have voted it out, and by their vote, under the terms of the Constitution, that law became as sacred as the Constitution, and was inviolable until the people in the same territory had again voted on the question and repealed the law by their vote. The Legislature could not repeal it, nor could they change the status of the local option law in the given territory. It requires the vote of the people to vote it in and vote it out. This is so by all the authorities, and so thoroughly that they need not be cited. For both reasons this law should be held invalid. I do not understand how it is possible for the Legislature to license crime or authorize the pursuit of a business in violation of law. This Act authorizing the selling of whisky by taking orders in local option territory would be, if the sale occurred, in direct conflict with the local option law, and, therefore, where the party is pursuing that business he would necessarily be selling in violation of the local option law. Pursuing such business is a felony, and in many of the counties in Texas today it is a felony to make one sale in local option territory, without even pursuing the business of selling. To say that the Legislature of Texas could license crime would be imputing to that body an act that if directly made would be to charge them with dereliction in office. No such motive ought to be imputed to that department of the government. If the Legislature could license the crime of violating the felony statute under local option law, then that body could license crime for any other felony. If the Legislature can authorize a license to a party to violate the local option law by selling intoxicants, the same power could authorize the party to pursue the business of committing robbery, arson, murder, horse stealing, etc. These are all felonies as is the pursuit of the business or occupation of selling intoxicants in local option territory.
So we have the strange anomaly that an Act of the Legislature is upheld which authorizes the sale of whisky in local option territory by taking orders and another Act passed at the same session and by the same Legislature, but subsequently enacted, which punishes the party by incarceration in the penitentiary for the same selling. It will be noticed that the Act authorizing this manner of selling in local option territory became effective on the 24th day of February, 1909. The statute prohibiting the pursuing of this business and affixing a penitentiary punishment to it was approved on April 15, 1909, and became effective ninety days after adjournment of the Legislature. So it was and is the later Act. This latter Act was in aid of local option, because it punished the party who pursued the business of violating the local option law with a heavier punishment than where he was only making one sale and not pursuing the business. It is another singular anomaly to hold that the *Page 208 State of Texas could take this money of its citizenship, authorizing him or them to do that certain thing, and at the same time incarcerate him in the penitentiary for doing the particular act which that body had authorized him to do, and for which the State had demanded and accepted his money and authorized him to do. But this is one of the many incongruities growing out of this character of legislation in recent years. I might mention another one of these incongruities. The same Legislature, at page 51, Acts 1909, enacted what is known as "Non-Intoxicating Malt Liquor" law. Under that statute the Legislature affixed a punishment, authorizing the license to the citizenship of Texas where they desired to sell non-intoxicating beer and malt drinks. This was upheld in Ex parte Townsend, 64 Tex.Crim. Rep.. In that case I also entered a dissent showing the incongruities and incompatibilities of that Act with other Acts of the Legislature and the decisions of this court. In Moreno v. State, 64 Tex.Crim. Rep., my brethren, overruling a long line of cases, held that they judicially knew the term or word "beer" meant intoxicating liquors. With this view they were not satisfied, but went further and said they did not have to rest their opinion upon judicial knowledge, because the Legislature of Texas had determined what it took to constitute an intoxicant, and had defined it. In support of this they quoted an article from what is known as the Fitzhugh-Robertson saloon license law. The cited section is 34 of that Act, and reads as follows: "The term `intoxicating liquor,' as used in this article shall be construed to mean fermented, vinous or spirituous liquors, or any composition of which fermented, vinous or spirituous liquors is a part; and all the provisions of this article shall be liberally construed as remedial in their character." It will be noticed that under the saloon law, when it comes to selling intoxicants, this provision authorizes the holder of the license to sell all of these different things whatever may have been their compound or ingredients under their saloon license, and especially confined the term "intoxicating liquors" to the saloon license Act, for it uses the term "intoxicating liquors" in the quoted section. That it did not apply to local option territory can not be gainsaid or ought not to be. I cite section 27 of the same Act wherein it provides as follows: "This article, or any of the provisions thereof, shall not be construed to be in conflict with any local option law now or hereafter to be in force in this State, and no license to any retail liquor or retail malt dealer shall be issued or shall be effective at any place where local option law is in force and operation." This expressly provides that this Act shall not be operative in local option territory, and not only so, the same provision of exclusion is made in section 18 and section 14 and section 9 and section 1 of this same Fitzhugh-Robertson Act. But my brethren in the Moreno case transferred and applied the saloon license provisions in and to local option territory, in the face of the statute and the Constitution, which provide that the local option law shall prohibit sales of intoxicating liquors. The reasons for my dissent are stated in the Moreno case, and I do not care here to review that matter, nor the reasoning for that dissent. I refer to it simply *Page 209 for this reason, that in another case, in the same volume, Ex parte Townsend, supra, my brethren sustained the Act of the Legislature licensing sale of non-intoxicating liquors in same territory. In the Moreno case they held there were no non-intoxicating liquors in Texas, quoting the definition of intoxicating liquors above cited. If section 34 of Fitzhugh-Robertson Act is applied to intoxicants in local option territory, then it was a matter of impossibility that there should be any non-intoxicating malt, vinous or spirituous liquors. They would all be intoxicating without reference to amount of alcoholic body contained. So we have another incongruity: the license Act of non-intoxicating liquors upheld by my brethren, in the face of the Moreno case, which held there was no such thing in Texas as non-intoxicating liquor. I do not care to follow this further.
Then we have another singular anomaly. The statute under which appellant was indicted for pursuing the business without paying the license tax, and under which he was convicted and the judgment affirmed, was, as before stated, enacted in 1909. What is known as the Allison bill was passed in 1913, found on page 125 of the Acts of the Thirty-third Legislature and as amended on page 62, First Called Session of the Thirty-third Legislature. Under the terms of the latter Act no shipment of intoxicants could be made into local option territory, providing a heavy punishment if such shipment occurred. Under the terms of the Allison bill the only way a party could get intoxicants would be to go into the wet territory, get the intoxicants and carry same home in person. He could not ship it by common carriers. If this law is valid, and my brethren hold in the recent case of Ex parte Muse that it is constitutional, without specifying whether all of its provisions are or are not constitutional, but in a general way held it constitutional, then it repeals the Act under which appellant was convicted. If this Act is constitutional, which prohibits the shipment of whisky into local option territory, then it necessarily repealed the license law for selling by soliciting orders. The two laws are absolutely incongruous, incompatible and flatly contradictory, and the Allison bill is the later Act, and, of course, would supersede any prior conflicting legislation, if valid. The Allison bill was in full force and effect for what it is worth at the time of the affirmance of the judgment. It is too well settled in Texas to be questioned now, both by statute and decision, that where a law is repealed either at the time of the trial of a party or at the time of the decision of it in the appellate court, he is entitled to his discharge. It would be unnecessary, I think, to cite cases in support of this proposition at this late date.
I have mentioned these statutes to show the anomalous condition of legislation and decisions in regard to these various matters and how incongruous and contradictory all this legislation is and has been for some time. These different Acts place the law of Texas certainly in a very curiously absurd condition. In one Act a citizen is authorized to sell whisky by paying the license, and in another Act the same Legislature *Page 210 provides that if he does so sell he shall go to the penitentiary as a felon. The saloon license Act of the Legislature which defines intoxicating liquors to include everything in which vinous, spirituous or malt liquors enter as a compound or part, was held by the majority of this court to apply to local option territory in the face of the statute which expressly forbids, and then sustains the law licensing non-intoxicating liquors which does contain spirituous, vinous and malt liquors. Then we have the Allison bill which wipes out and punishes for all shipment, and the affirmance of the judgment in this case for failing to get his license to order and ship the ordered beer. These may be classed as the beatitudes of our jurisprudence on this subject. I can not, therefore, concur with my brethren, first, because the Legislature had no authority to license the sale of intoxicants in any form by soliciting orders or any other way in prohibition territory. It would be a violation of the local option law and punished as a felony to follow that character of business or occupation. Second, the Legislature can not tax nor license crime, and, third, appellant did not solicit orders from anybody, therefore did not violate the soliciting order statute, even if it was in effect and a valid law; and did not sell or offer to sell through orders or otherwise; fourth, if as a matter of fact or law, the Allison bill is constitutional, it supplanted the other law, and appellant's case should have been reversed and the prosecution dismissed, because the law under which he was convicted was not in force at the time of the disposition of his appeal. I have not cited nor commented upon the recent decision of the Supreme Court reviewing this soliciting order statute, but I call attention to it. It will be found in 157 S.W. Rep. at page 1166. Chief Justice Brown's opinion in the case is so clear and forceful that it may be said to be unanswerable. The views expressed in that opinion are in strict accord with what I have understood the law to be and decided since the first appeal reviewing the local option clause of the Constitution of Texas. Judge Harper admits, in his opinion on rehearing in this case, that if the license authorized the sale of intoxicants in the given territory the law would be unconstitutional, but the Edmanson case does not so hold, because in that instance the party under the testimony of many of the witnesses was selling directly in violation of the local option law, and the judgment in that case was affirmed, not that he was violating the local option law but that he failed to take out license to do so. I quote in this connection from Judge Brown's opinion:
"Under such license it could by solicitation or taking orders sell and deliver intoxicating liquors in Clay County, because a sale implies a delivery of possession of personal property. Authority to pursue the business of selling intoxicating liquors in a county includes authority to deliver the liquor in that county, because the business could not be pursued if no sales were made, and no sale could be without delivery, actual or constructive. The words, `by soliciting or taking orders,' do not limit the effect of the sale to pass title, nor do they exclude the delivery of the thing sold at the place where the business is pursued. Those words are descriptive of the method of selling. The local option *Page 211 law and the Constitution prohibited the sale of intoxicating liquors in Clay County, and the Legislature could not authorize the pursuit, by any method, of the business of selling such liquor there. The State can not levy an occupation tax on a business that, being pursued, would be a violation of the law and Constitution. Such license would not protect the licensee against prosecution for sales made under it." Of course, that business would have to be pursued in the particular county where the prosecution was had, because the statute expressly provides that before he can engage in that business he must file with the county clerk of the county in which the business is to be pursued an application in writing for license to engage therein, and shall state the county or portion of the county in which the business is to be pursued, and if within the corporate limits of any incorporated city or town, that fact shall be stated, etc., Judge Brown, commenting upon this phase of it, said: "It is beyond all question that the license must have been issued by the clerk of the county in which the business was to be pursued, and the business of selling intoxicating liquors in Clay County, by any method, being unlawful, it was not the subject of taxation by the State or county."
I have written the above on the lines indicated in my dissent, largely for the purpose of calling the attention of the Legislature to the condition of our laws and their incongruities, in obedience to the statute which requires the judges of the State to call the attention of the Legislature to such defects, conflicts and incongruities as appear to be in the way or render inefficient the enforcement of the laws.
The information includes another count against appellant charging him with a violation of the cold storage Act of the Legislature of 1909, page 53. But for the opinion written in the case by the majority, I would hardly think that to be a serious question, but it seems to have been included in the decision. Briefly stated, the substance of the facts disclose that the club, of which appellant was a member, provided suitable means for storing their beer on ice for the purpose of preserving it while they were using it. It excludes the idea that any person had access to what is termed the cold storage except the club itself or its members. It was not kept for any purpose except to store and keep on ice the property of the club. No one outside of the club ever placed any commodity on the ice, nor was anyone permitted to do so. Nothing was kept in the refrigerator nor was any offer ever made to receive anything from outsiders to be kept for storage. It was limited in its purpose exclusively to the use of the members of the club or to the club itself. If this was a cold storage plant within the meaning of the Act of the Legislature, then every refrigerator could and would be a cold storage plant wherever kept in ordinary business houses or in private families. The Act of the Legislature of 1909, page 53, provides that in all local option territory a party may pursue the business of keeping, etc., "what is commonly known as a cold storage or any place by whatever name known or whether named or not, where intoxicating or non-intoxicating liquors or beverages are kept on deposit for others, or where *Page 212 any such liquors are kept for others under any kind or character of bailment (by paying) an annual State tax of two thousand dollars." As before stated, the club provided a place for the keeping on ice of their beer. It was the beer alluded to in the former part of the opinion that was shipped in for the use of the members of the club on the terms and under the plans already detailed. The testimony excludes the idea that any outsider ever kept anything in storage on this ice. Our statute provides that words and phrases used in the Penal Code shall be taken and accepted in their commonly understood meaning, unless the Legislature shall give it a special definition. So we have the general statute which provides that the term "cold storage" shall be used and understood in its common and ordinary acceptation, but the statute did not stop there; it emphasizes the fact that it must be what is "commonly known" as a cold storage, or place where these interdicted matters are kept on deposit for others. The testimony excludes a violation of the cold storage Act quoted. It was not kept for anybody except the club members where the club had provided for storing their beer. I do not purpose to follow this matter to any great length, and will cite the case of Stewart v. Atlanta Beef Co., which was a Georgia case, reported in 44 Am. St. Rep., 119, by Judge Lumpkin of the Supreme Court of Georgia. Quoting from that opinion the following language is used: "The obvious meaning of the phrase, `doing a cold storage business,' is, carrying on the business of storing commodities in a cool place for hire or reward. It would certainly not be contended that one who, for his own comfort or convenience, kept fruits, meats, or other perishable goods in a refrigerator, box or room cooled artificially, would be carrying on a cold storage business. It would make no difference in principle if a person engaged in the sale of such articles kept by them, for the purpose of preservation until sold, in such a room or other place. The real business thus conducted would be that of a dealer in such commodities, and the method employed for storing and preserving them would be a mere incident to that business. The business of storing for hire the goods of other people is of an entirely distinct character. The difference between the two classes of business indicated is very plain, and the proposition that a dealer in goods of any kind who merely uses a cold storage receptacle for preserving his wares until sold is not engaged in carrying on a cold storage business, is so manifestly beyond contention that, to our minds, it does not admit of elaboration or discussion; and it is entirely immaterial what may be the size of the receptacle, room, or other place in which the goods are stored. We, therefore, are fully satisfied that the defendants in error were not liable to the tax imposed by the clause quoted in the first headnote, from the general tax Act passed in 1890, it appearing beyond dispute from the evidence that these parties used the cold storage process for no other purpose than to preserve their own commodities, and that they did not receive or store, for hire or otherwise, any goods whatever for other persons." The statute under consideration in the quoted case imposed a tax upon all packing houses doing a cold storage business in that State, whether carried on *Page 213 by the owners thereof or by their agents. This was a provision in the Georgia statute.
The cold storage article enacted by the Texas Legislature punishes only for a violation of the license Act when the cold storage was kept for receiving deposits of others than the owners or interested parties in the cold storage. Neither appellant nor the club, or both combined, kept a "cold storage" within contemplation of the terms of the Act of 1909. This is so obviously so that it would need no discussion. Cold storage as "commonly known" means keeping such cold storage as a matter of business for hire or reward, a receptacle for storing commodities and things of that sort belonging to others, and not to the owners of the cold storage.
For the reasons indicated I have entered the above views as some of the reasons for dissenting from the majority opinion.