The indictment is objected to on the ground that it fails to set out all of the constituent elements of the offense. *Page 525 The special objection urged is that it fails to charge that appellant engaged in selling liquor under prescription. While the indictment fails to make this averment directly, it occurs to me that the allegations set out in it sufficiently show this fact. The essential elements of the offense are the sale of intoxicating liquor, or the being engaged in the business of selling intoxicating liquor, in local option territory, under a prescription, without having obtained a license therefor. The indictment substantially charges that appellant was engaged in the occupation of selling intoxicating liquors in certain local option territory (describing it) without having paid the tax levied thereon (giving the amount of the tax on the occupation, — State and county), and without having first procured a license. Only one character of sale of intoxicating liquor is permitted in local option territory, and tax is levied on this particular character of sale; and allegation in the indictment that the occupation was pursued in the local option territory, without having paid the tax, and without having procured a license therefor, I think is sufficiently definite as indicating the particular occupation appellant is charged with pursuing. This is not a case where two or more occupations in regard to selling liquor can be pursued in the given territory, as was formerly the case where the law authorized a sale and license in quantities less than a quart, and a license for selling in quantities of a quart and over, and levied a different tax. Here only one character of sale is authorized, and only one tax is levied; and the allegation that the occupation was pursued in the given territory, with the amount of tax stated, and that appellant had no license, includes the idea that he was pursuing the only taxable occupation in said territory, in regard to the sale of liquor, on which a tax could be levied. There was no danger here that the party was misled as to the particular offense for which he was indicted, and a conviction thereunder would bar another prosecution for the same offense. I think this is in accord with the view announced in the authorities cited in the dissenting opinion. Woodward v. State, 5 Texas Crim. App., 296; Hewitt v. State,25 Tex. 722.
It is insisted that the law imposing a tax on the occupation of selling liquor in local option territory is without authority. Of course, if it can be shown that the law in question is violative of any provision of our Constitution, or possibly of some fundamental right outside of the Constitution, then the proposition advanced by my Brother DAVIDSON is unassailable. While this is not an entirely new question, it has not been before this court in its present shape until now. Both Gibson's Case, 34 Texas Criminal Reports, 218, and Rathburn's Case, 88 Tex. 281, were predicated on the law of 1893; and it was simply held that no tax was levied in local option territory by virtue of the Occupation Tax Act of 1893. In Ex Parte Bains, 39 Texas Criminal Reports, 62, the decision was predicated on the idea that the Act of 1897 (see Acts Twenty-fifth Legislature, page 223), levying an occupation tax in local option territory, was operative upon, and changed the status of, the local option *Page 526 law, after it had been voted on by the people. As authority in support of the opinion, a number of cases were cited, in which the question involved was unquestionably an innovation or change in the local option law in the given territory, after local option had been voted on by the people, and made operative in such territory. As in Dawson's Case, 25 Texas Criminal Appeals, 670, where the Legislature extended the time in which another vote could be taken on prohibition to two years, instead of one year, as theretofore, the court held that this enlargement of time could not be extended to territory where local option was in force at the time the new act went into effect. And see Robinson v. State, 26 Texas Crim. App., 82; Lawhon v. State, 26 Texas Crim. App., 101. Whatever may be said as to the correctness of those decisions, I do not think the doctrine they announce can be applied to the question here presented. True, I agreed to the Bains Case, but the distinction did not then occur to me, as in that case the tax was attempted to be enforced in territory which had adopted local option prior to the passage of the occupation tax act; but such is not the condition in this case. However, as suggested above, I do not believe the Bains Case was correctly decided, as, in my opinion, there is a vast difference in an act which changes the time in which a new vote can be taken in territory where local option has been defeated or carried and an act which proposes to tax the occupation of selling intoxicating liquor in local option territory. The one act is directly operative on the local option law, and the other does not interfere with the law, although it may interfere with the traffic in liquor in the territory in question, by an occupation tax. So much for the status of the law bearing on this subject prior to this case.
Now, if we recur to the clause of the Constitution itself on this subject, it absolutely prohibits all sales of intoxicating liquors; and so careful was the Legislature in enacting a law under this section of the Constitution that the character of vote authorized was in exact accord with the provisions of the Constitution; the kind of ticket prescribed being "For or against prohibition." In a subsequent section it is provided that the vote so taken shall not be construed to prohibit the sale of wines for sacramental purposes, nor alcoholic stimulants in case of actual sickness. Rev. Civ. Stats., arts. 3384, 3385. It was even doubted that the Legislature had power to eliminate such sales, and the question was not settled until the decision in Bowman v. State, 38 Texas Criminal Reports, 14. In that ease it was held that by the adoption of said provision of the Constitution it was not intended to interfere with the sale of intoxicating liquors for medicinal purposes, or wine for sacramental purposes. So these matters were left as they existed aforetime. I do not understand that, because the sale of intoxicating liquors as a medicine was eliminated by the prohibition amendment as construed by the courts, this affords a constitutional guaranty of free liquor in such local option territory. Nor do I understand that the constitutional amendment on this subject authorized the Legislature to pass an act *Page 527 excluding the State from the power to tax any occupation for the sale of liquor that can be legitimately pursued in the given locality; for, if this be so, then it is according special privileges to those who may be inside such territory, not permitted to others who may be outside. Taxation is one of the highest attributes of sovereignty, and, where the occupation is taxable under any circumstances, the burden is upon those who claim that the sovereign has relinquished this right or power to show it. The claim put forth that the tax levied on the sale of intoxicating liquor in local option territory is a thrust at local option, and that the two can not exist together, is a mere pretense. The tax, with the provisions necessary to procure a license, is as much in aid of prohibition as the prescription of a physician; indeed, every regulation which has for its purpose, and which reasonably tends, to confine the sale of liquor for purely medicinal purposes, is a protection to prohibition; and everyone must know, who has lived in prohibition territory, or who is conversant with the history of local option in our State, that without such legislation local option would be a mockery, a delusion, and a snare. If the sale of intoxicating liquors for medicine was not safeguarded by law; if, as is claimed, the citizen has a constitutional guaranty, or an inalienable right, to sell intoxicating liquor in local option territory for medicinal purposes, without any regulation or restraint, — dives, "hop joints," and "bind tigers," already numerous, would be tenfold more so; and then, indeed, would we have that character of prohibition which does not prohibit. The fact that the occupation of selling intoxicating liquors under a license in local option territory can only coexist with local option in such territory is no argument against its validity. No man is forced to pursue an occupation in such territory, and he can not complain although the Legislature may fail to provide some means by which he may recover the tax paid by him in case local option should be repealed.
Nor can it be said that is class legislation, for the tax equally applies to all persons under the same conditions. I do not understand that the question of the taxation of the sale of wine for sacramental purposes is involved in this case, but, if it was, does that furnish a reason that the law is unconstitutional, or an infringement upon the inalienable right of the citizen? If so, then the same argument would equally apply to territory outside of local option. But I have never heard it contended that it was unconstitutional, or violative of fundamental right, that wine used for sacramental purposes was purchased from those who paid an occupation tax thereon for selling it. In local option territory, as elsewhere, the paying of a tax on an occupation is simply rendering to "Cæsar the things that are Cæsar's." Furthermore, if it be insisted that the Legislature might put the license so high as to prohibit the sale of intoxicating liquors for medicinal or sacramental purposes in local option territory, this argument would equally apply to outside territory, and would equally prohibit the sale in such outside territory for such purposes. The traffic in intoxicating liquors is peculiarly *Page 528 a subject for police regulation, and the courts have invariably upheld such regulation by the Legislature. How far the courts may go we do not, understand to be involved in this case, nor is it necessary to decide that question.
As stated before, this is a case of first impression under the Act of 1897 (see Acts Twenty-fifth Legislature, page 223), and there can be no question that the Legislature by this act intended to levy a tax on the occupation of selling intoxicating liquors for medicinal purposes in local option territory. The language is clear and unambiguous, and, in my opinion, the pursuit of this occupation is the pursuing of an occupation made punishable by and embraced under article 411a, of the Penal Code, as this article comprehends every occupation on which a tax is levied. The law authorizes the occupation of selling intoxicating liquors for medicinal purposes under certain regulations prescribed by statute, including a prescription by a, physician in local option territory; and I can see no reason why the Legislature can not levy a reasonable tax on such occupation, and such a tax neither violates the Constitution nor any inalienable or fundamental right of the citizen.
[NOTE. — Appellant's motion for rehearing was overruled June 2, 1899, without a written opinion. — Reporter.]