Entering my dissent from the opinion of the majority of the court, I desire to state a few reasons therefor.
The indictment set out in that opinion is correctly copied from the transcript, and alleges that appellant, in a local option county, pursued the occupation of selling spirituous, vinous, and malt liquors and medicated bitters, — said occupation being then and there taxable by law, — without first obtaining a license therefor, and the tax due the State on said occupation was $200, and that levied by the county was $100. Several grounds were urged in the motion in arrest of judgment.
1. The opinion holds this indictment valid under the Act of the Twenty-fifth Legislature (Laws 1897, p. 223). If the opinion is correct, then, by paying the tax and securing the license in a local option district, any person can sell intoxicating liquors of any character, and in unlimited quantities. The indictment does not undertake to aver the restricted license provided for by said act. If the wording of the act in question means anything, it is that, in local option territory, license may be obtained to sell only on prescription, and in quantities of a quart or less. If the court is correct, it would be unnecessary to aver that the accused was pursuing the occupation of selling such intoxicants upon prescription, and in quantities of a quart or less; and the party may be justified, under the license, in such territory, in selling without restriction as to prescription or quantity. Is this right or wrong? Would the indictment allege selling by wholesale, by the gallon or more, by the gallon or less, by prescription or by retail? It is fundamental in this State that, before a party can be punished, there must be a penal law, created by legislative enactment, authorizing the punishment. The court can not make a crime, nor enforce a punishment, without such penal statute. It is also fundamental that the indictment must charge the offense denounced by the statute. This can not be dispensed with by courts, any more than by legislative enactment. Hewitt v. State, 25 Tex. 722; State v. Horan, 25 Texas Supp., 272; "Huntsman *Page 516 v. State, 12 Texas Crim. App., 619. Article 5060a provides: "There shall be collected from every person, firm, corporation, or association of persons, for every separate establishment selling such liquors or medicated bitters within this State and located within a county, subdivision of a county justice precinct, town or city, in which local option is in force under the laws, the sum of $200 provided the same shall not be sold in such locality except on prescription and in compliance with the law governing sales in such localities; provided, further, that nothing in this article shall be so construed as to exempt druggists who sell spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, on the prescription of a physician or otherwise in either locality as above set forth from the payment of the tax herein imposed; provided, further, that this article shall not apply to the sale by druggists of tinctures and drug compounds, in the preparation of which, such liquors or medicated bitters are used and sold on the prescription of a physician or otherwise, and which tinctures and compounds are not intoxicating beverages, prepared in the evasion of the provisions of this chapter of the local option law." Article 5060c provides that, where the party desires to take out such license, he shall file with the county clerk his application under oath, which shall designate the place in which he is to engage in the sale of such liquors, and, if in a city or town in which the streets are named and houses numbered, this shall be specified, and it shall further state the quantity, — whether one gallon or more, or one gallon or less; provided that, in the locality where local option is in force, not more than one quart shall be sold at one time, and to the same person. Said application shall also state whether the liquors to be sold are to be drunk on the premises, or to be sold on prescription in local option territory, and the applicant shall pay the collector of taxes of the proper county all taxes due, and shall, in addition, file with the county clerk a bond as required by the succeeding articles of this chapter. Before an indictment can be valid, under this law, for pursuing the occupation in local option territory, it must set out by proper averments the constituent elements of the offense. Now what are these? (1) That local option is in force; (2) the party is selling in such territory on prescription, in quantities of a quart or less, without first having obtained a license for that purpose, and the indictment must aver that the seller is not a druggist selling tinctures and drug compounds which the law authorizes. State v. Duke, 42 Tex. 455; Smith v. State, Id., 464; State v. Clayton, 43 Tex. 410; Woodward v. State, 5 Texas Crim. App., 296. A casual inspection of the indictment will show that none of the legal requirements, except the first, were charged. It should have alleged selling on prescription, and in quantities of a quart or less. Without these averments, the indictment is vicious. The license limits the sale to a quart or less. Therefore a license can not issue authorizing such sale in excess of a quart. A license to sell liquor is the creation of the statute. Selling outside of such statute can not be the subject of license. If the party were to sell in excess *Page 517 of a quart, an indictment would not lie under this law. Nor can the license issue for selling otherwise than on prescription, as the law only undertakes to require a license for sales on prescription, and in limited quantities as stated. Therefore there would be no authority to require a license. I have made these observations in view of the fact that the court saw proper to hold the indictment good, without averments constituting the offense under the act in question. If the opinion of the court is correct, a party could be punished as well for failure to obtain a license outside this statute as for not procuring it under its terms, and a crime would be thus made by the court, independent of legislative enactment. Having made the offense, the court must also, in addition, create a punishment, as was done in this case. Hewitt v. State,25 Tex. 722; State v. Horan, 25 Texas Supp., 272; Huntsman v. State, 12 Texas Crim. App., 619.
2. In order to justify an indictment, there must not only be a statute denouncing the crime and affixing a punishment, but that statute must be legal; that is, it must be within the scope of legislative authority. If the Legislature has no authority to create the offense, then, of course, no indictment would lie. If the well-settled rules of legislative and constitutional construction are to be observed, the Act of the Legislature seeking to license the sale of intoxicants in local option territory must be held invalid, Under all the decisions in Texas, local option, when put into operation in a given territory, supersedes and suspends all laws in conflict with it. This question first came before the court in Robertson's Case, 5 Texas Criminal Appeals, 155, and has been followed without a break until the opinion in this case. How local option and license to sell can be in force in the same territory at the same time, I can not understand. It has always been held in Texas that an occupation tax can not be levied, or license issued, authorizing the sale of intoxicants, in localities where such intoxicants have been prohibited. Robertson's Case, 5 Texas Crim. App., 155; Gibson v. State,34 Tex. Crim. 218; Rathburn v. State, 88 Tex. 281. But, if a license can be issued to sell under the Act of 1897, it can not be done without let or hindrance as to quantity, and outside the restrictions of that statute.
Again, levying a tax and requiring a license in prohibition districts is utterly at variance both with the Constitution and local option laws. Article 16, section 20, of the State Constitution, requires the Legislature to pass laws whereby the people of counties, and named subdivisions of such counties, may from time to time vote to prohibit the sale of intoxicants. In obedience to this, the Legislature passed laws whereby the people of the mentioned territory can every two years vote upon the question of prohibition. This law provides that sale of intoxicants may be prohibited in such territory, except for medicine, and wine for sacramental purposes. Said law limits the manner and means by which such intoxicants can be obtained for medicine; that is, it must be on the prescription of a regular, practicing physician. There is no method *Page 518 pointed out by the law as to how wine for sacramental purposes shall be obtained. The local option law can only be put into operation by a vote of the people. It is a local option law, and supersedes all laws on that subject in the given territory, and suspends all laws in conflict with its provisions. Among other things, it expressly suspends the license system, and requires the constituted authorities to refund the unexpended portion of the occupation tax paid by the seller who was doing business in the territory at the time of its adoption. Where people have put this law into operation, it is beyond the power of the Legislature to enact any law, general or special, which will modify, abrogate, or impair its force and efficacy. I assert, without fear of successful contradiction, that the Legislature can not repeal the local option law indirectly, by the passage of a general law, which would have that effect by implication. Now, if this license system is to be held valid, then that portion of the local option law with reference to purchasing on prescription would be rendered nugatory by operation of the heavy license imposed. Under the local option law, the citizenship of the affected territory have the right to the benefits of the provisions of such law. They voted it into operation with the exemptions, and the Legislature has not the authority to impose a tax which would deprive them of these benefits or privileges; not has the Legislature the power to require a license which prohibits the sale of wine for sacramental purposes, nor to impose burdens not contained in the local option law by the enactment of general or special laws.
Now, with reference to the sale on prescription, we find that there is no tax or license required in the local option law, whereas in the act in question there is a tax of $200 for the State and $100 for the county, and if in an incorporated town or city, a further imposition of another $100, as a prerequisite to the sale of any of the intoxicants mentioned for medical purposes. This is a regulation of the sale in such territory, which is tantamount to an absolute prohibition of the sate and purchase of such intoxicants for medical purposes guarantied under the local option law within such territory; and, also, the terms of this statute inhibit the sale of wine for sacramental purposes. Article 5060a limits the right to sell in such localities under such license only on prescription, and further requires that the affidavit which accompanies the application for license shall state that not more than one quart shall be sold at one time and to the same person. This, of course, means on prescription. Article 5060j requires the seller to enter into a bond, by the terms of which he shall not sell except on the prescription of a regular, practicing physician, and in quantities of one quart or less; and, violating this law in this respect, he shall be subject to pay the sum of $250 for every such infraction of said bond. Now, it is clear from the reading of these different statutes that, before a party can sell in a local option territory, he must make application under oath to obtain the required license, stating that it is to be used in a local option precinct, and for the purpose for which such license can issue (that is, it *Page 519 is to be used in sales on prescription); and the law itself limits the authority to sell under the license for medicine only, and in quantities of a quart or less. It does not stop here. It requires this bond in the sum of $2500, conditioned that no sale can be made, except on prescription of a regular, practicing physician, and imposes a penalty of $250 for every infraction of the bond. Therefore, it is too plain for argument that the application, the license, and the bond limit the right to sell for medicine only on the prerequisite prescription of a physician. The local option law did not require any of these matters, except the prescription. When the intoxicants are sold or purchased as medicine, the license limits the quantity to a quart or less. This is not so under the local option law. The prescription under local option fixes no limit. Now, if the license and the terms of the bond make it penal to sell only on prescription, and prohibit the seller from selling otherwise, then it would be very difficult to conceive how a party could sell wine for sacramental purposes at all. It would be a clear violation of the terms of his license and bond, and subject him to $250 penalty, under the terms of the bond. Hence, we now have a direct clash between the terms of the local option law and this license act, in more than one particular. The two can not stand together. If the license law is valid, then the sale of wine for sacramental purposes is prohibited, the will of the people defeated, and the general law takes the place of the local option law. If the license is valid, it restricts the right of the people in local option territory to buy intoxicants as medicine. The terms of the two acts are inconsistent with each other. Both can not stand. I therefore insist that, if the Act of the Twenty-fifth Legislature can be upheld, it operates as a repeal directly of the local option law in regard to sale of wine for sacramental purposes, and indirectly of the right to purchase intoxicants for medical purposes.
Again, the Act of the Twenty-fifth Legislature can not be put into operation except by a vote of the people on local option. If this proposition is not correct, then the Legislature has authority to create this license system independent of the local option law. No one, I dare say, would assert that the Legislature has the authority to create this tax, or require that this license shall be voted on directly by the people, in the face of the plain provisions of the Constitution. If the Legislature has not the authority to create this act, and authorize the people to vote upon it directly, it is very clear that it can not create the law, and authorize the people to vote upon it indirectly. The Legislature can not do indirectly what it is inhibited from doing directly. If the local option laws were eliminated, then I seriously doubt if my brethren would hold that the people could put into operation this license system in any subdivision of Texas by their votes. As early as State v. Swisher, 17 Tex. 441, this proposition was adjudicated by our Supreme Court; and it has never been questioned, so far as I know, unless by the opinion in this case. When we look at the license act, we find that, as a prerequisite to the requirement of the license to enforce the imposed tax, *Page 520 the existence of local option is absolutely necessary. Now, then, this being true, it would necessarily follow that the tax can not be levied, nor the license required, unless local option has been adopted. The Legislature, then, has undertaken to put into operation an occupation tax, by a vote of the people on local option in such territory, different in amount from the same character of occupation tax levied in other sections of the State. That this can not be done without a vote on prohibition is placed by the terms of the statute beyond question. If this can not be done without the local option election, it can not be done with it. It must necessarily be true that, if the Legislature could adopt this method of creating an occupation tax in one county different from that in force in another county, they could do so as well without such method. The mere creation of the local option statute does not authorize the Legislature to violate the other plain provision of the Constitution, which requires that such taxation shall be equal and uniform, and that it must be by direct legislation, and not indirectly, through a vote on some other law, local in operation. If they could use one pretext or subterfuge to violate this provision of the Constitution, they could use any number of subterfuges for the same purpose. The violation of the Constitution would then become a question of fertility of resources in the legislative mind, despite the want of authority. Therefore, in my opinion, the Legislature can not use the pretext of the local option law to impose an occupation tax or require a license in the local option territory.
Again, appellant was fined under article 411a of the Penal Code. The punishment imposed under said article applies to persons or associations of persons who engage in the sale of spirituous, vinous, or malt liquors, or medicated bitters, without first having obtained a license therefor under the general law. It has no reference, in my judgment, to this character of case, because here the license can only be issued for the purpose of selling in local option territory on prescription. If this punishment has reference to this character of case, then it takes the place of local option, and is a substitute for it, and therefore repeals it. If a party has violated the local option law, he is punished by a fine of not less than $25 nor more than $100, and by imprisonment in the county jail not less than twenty nor more than sixty days. Under the license Act of 1897, if article 411a applies, he is punished not less than the amount of the taxes due, and not more than doubt that sum, or imprisonment in the county jail anywhere from ten to ninety days. So the two punishments are entirely different. If the punishment prescribed by article 411a applies, then it follows that the penalty affixed for violating local option ought not to apply. If article 411a must be resorted to for the penalty, then it takes the place of the punishment set forth in the local option law. This law operates only in local option territory. So there is a conflict between the local option statute and the license act, as to punishment. If the license act be valid, then the party violating it must be punished under that act, and not under the local *Page 521 option law, because said license and bond prohibit the sale in such territory, except under the authority of the license. It seems to be universally held that local option law, being in operation, supersedes or suspends all laws in conflict with it. Robertson v. State, 5 Texas Crim. App., 155; Boone v. State, 12 Texas Crim. App., 185; Donaldson v. State, 15 Texas Crim. App., 25; Gibson v. State, 34 Texas Rep., 218; Rathburn v. State,88 Tex. 281; Ex Parte Lynn, 19 Texas Crim. App., 293; Robertson v. State, 12 Texas Crim. App., 541; Black, Intox. Liq., secs. 90-198; Rauch v. Com., 78 Pa. St., 490; Com. v. Mueller, 81 Pa. St., 127; State v. Yewell, 63 Md. 120; Wheeler v. State,64 Miss. 462, 1 South. Rep., 632; Young v. Com., 14 Bush, 161; Com. v. Jarrell (Ky.), 5 S.W. Rep., 763; 38 Mo., 566; Minnehaha Co. v. Champion, 5 Dak., 433, 41 N.W. Rep., 754; Butler v. State, 25 Fla. 347, 6 South. Rep., 67. But, if the opinion of the court be the law, this rule is not correct, and the local option statute stands subordinate to a license law which is itself dependent upon said local option statute for its vitality and operation. This presents this anomalous condition, to wit: The superiority of the local option law over prior license laws, and at the same time its subordination to, or abrogation by, a later license act, which later act absolutely depends upon local option for its existence. I do not care to discuss this question. It does not admit of discussion.
Again, the repeal of prohibition in the given territory necessarily terminates this local option license system. Why? Because it is dependent upon the local option law for its existence. If valid, the license is a parasite on prohibition, — lives with its life, dies with its death. Local option alone justifies its nativity, and furnishes the only excuse for its existence. As it comes into being with the adoption of the local law, so it passes away with its abrogation. Their lives coexistent. If not, then the license would continue in operation after the local law had been abolished. Could this be true? Suppose, six months before the people defeated prohibition, the license was obtained to sell in that territory; what effect would this defeat of prohibition have on the license? The license being required for one year, would the defeat of prohibition operate as a repeal of the license act in the given locality, or would it continue in force? Would the licensee be required to sell under his license only in quantities of a quart or less, and on prescription of a physician, while his next-door licensee neighbor would be selling without reference to prohibtion or physicians' certificates? Would the owner of the license in local option territory be still fettered by its terms after the repeal of prohibition? If so, would he occupy an equal position before the law with others who are selling under license independent of the local option law? If local option and license in prohibition territory are "on parallel lines," and independent of each other, as my brethren insist, would it not follow that the license would continue in operation for the remaining six months after repeal of prohibition? If not, which license system would be in force in that territory? Being independent or each other, one would not interfere with the *Page 522 other. Then would not the license, not being dependent on local option, continue for the year for which it was issued, and not cease with the defeat of prohibition? What would become of the constitutional requirement of equal and uniform taxation? So I am persuaded the dependency of the license law in question on the local option law is too plain for serious discussion, and being valid, as held by my brethren, must supersede such local option law wherever there is a conflict between them. We only again see that the two laws can not stand together. One or the other must give way. The opinion of the court uses this language in this connection: "Such a provision on the part of the Legislature is no amendment of the local option law. It neither takes from nor adds to said local option law. It nowhere increases or diminishes its penalty, adds to or decreases its privileges; nor does it change a single, solitary provision or the local option law." In the face of the provisions of the two laws, it occurs to me that this is an ill-advised statement. That it does detract from the local option law is evident from its reading. That it increases penalties in local option districts for liquor selling is too plain for discussion, if both laws are sustained. That it does decrease the privileges in local option territory is placed beyond controversy, for if it does not decrease the privileges, then intoxicants can be purchased independent of the license in any quantities on prescription, despite the license and bond; and yet the license itself limits the quantity to a quart or less, and punishes under the bond for selling otherwise than on prescription in quantities of a quart or less, in addition to the other penalties prescribed. These restrictions are not to be found in the local option law, and to say that liquors can be bought on prescription in greater quantities than one quart under this license system, in local option territory, would be a contradiction of the terms of the license, as well as those of the bond. And it prohibits sale of wine for sacramental purposes. The opinion, in this connection, further says: "It is frequently found that the conflict between the two statutes is apparent only, as their objects are different; and, when the language of each is restricted to its own object, they run in parallel lines, without meeting, or the later act can be construed as a modification of or exception to the earlier one, thus avoiding all conflict between the two." Now, two statutes may "run in parallel lines without meeting." Parallel lines do not meet, nor ever at any point coincide. They can never occupy the same territory. They are independent of each other. And the license act could not depend on the local option statute. It must adhere to its own line. If the "lines are parallel," there is no possible conflict between the two statutes, and the license act will stand independent the local option law. Therefore the local option "law would not be a prerequisite to the levying of the tax or the requirement of the license, and it would not be necessary to allege in the indictment that local option existed in the territory where the license was imposed. Again, if the two lines "run parallel," then the party violating either can be punished without reference to the *Page 523 other, and he can be punished for violating both, without fear of running counter to the provision contained in the bill of rights, that no man shall twice be placed in jeopardy, and a conviction under one law could not be pleaded in bar for the prosecution under the other. But are these statutes on parallel lines? Suppose the later is construed as "a modification of" the former; then what is the effect? Necessarily a change of the former to that extent. But, the opinion of the court being correct, the license can not be obtained until the local option law is put into operation. Now, if this is true, the later law depends upon the former, and the later, if valid, supersedes the former, to the extent of the conflict. I have this to say: If there are conflicts in these two laws, they can not be avoided by construction, and, if the later act modifies the prohibition law in any of its terms, then, under the opinion of the court, to that extent it would operate a repeal; and, in assuming this position, the court must stand upon the proposition that the license is superior to and repeals the local option law, and they must also maintain the further proposition that a general act of the Legislature can be created which supersedes the local option law. Whenever a subsequent law modifies, changes, or abrogates a former law, to that extent a repeal is effected; and if the local option law is thus modified or repealed, in this instance, it is subordinate to the license act. If this is true, then it is necessarily true, by same course of reasoning, that the same power can repeal general law every separate provision of the local option law; and thus such local laws could be used as pretexts at the polls for putting into operation laws which the Legislature could not directly create, while by the same vote the local option law could be destroyed by pretense of voting it into life. Again, I propose to dissent from the doctrine that the Legislature by a general law can suspend the operation of the local option law in any territory where the people have put it into operation. It is true, the Legislature may suspend laws; but these are general laws, and do not refer to that character of legislation where the Constitution itself authorizes the people to vote a local law into existence. When such local law is voted into operation, it must remain as voted, despite the general power of the Legislature to suspend laws. Therefore the Legislature can not pass a general law, the operation of which depends upon the vote of the people on a local law, and which has the effect of suspending the very law upon which it depends for existence. In other words, the Legislature can not, by enacting the license system under discussion suspend in the given territory the local option law. None of the provisions of such local law voted into operation the people can be infringed by the provisions of a dependent general law by any such roundabout legislation. So I say, under my view of the questions involved in this appeal, the indictment does not only not charge a violation of the Act of 1897, but, if it had, it would not then charge an offense against the law, because the Legislature has no authority to require such tax and license in territory where local option is in force. The license act is dependent on *Page 524 the local option law, and therefore void. Holley v. State, 14 Texas Crim. App., 505; State v. Swisher, 17 Tex. 441.
3. There is one other to question I desire to notice. It is this: The evidence is insufficient to sustain this conviction. The testimony in this respect is as follows: "From the 1st day of November, 1897, till about the date of filing of the indictment, the defendant was continuously engaged in the business of selling spirituous, vinous, and malt liquors in Clay County, Texas; but the evidence did not show, nor tend to show, that defendant made any sale of such liquors on prescription, nor for sacramental purposes." It was also agreed that the defendant had a United States internal revenue license. In order to warrant a conviction, under the Act of 1897, for failing to take out the license, the evidence must show that the accused was selling in violation of the license act. If he was selling in quantities exceeding a quart, he would not violate the act in question. Why? Because the license limits the quantity to a quart or less. The punishment for violating an act requiring a license must be predicated upon evidence that the license act was violated, not that some other law was violated. It is admitted that the party was not selling on prescription, but it is nowhere shown, nor is it pretended, that he was selling in quantities of a quart or less; nor is it intimated that the tax was unpaid, or that the license had not been obtained. Suppose he was selling by the gallon or half gallon, or in any quantity in excess of a quart; would it be pretended that he could be punished for a violation of the act in question? I think most clearly not. If the license had been obtained, this conviction could not stand. He is not charged with violating the terms of the license, but with a failure to obtain the license. As before stated, this indictment was drawn, independent, outside, and beyond the terms of the License Act of 1897. The prosecution conceived it to be right, the trial court concurred in the conception that the evidence should be as broad as the averments of the indictment, and my brethren have justified that conception; and we have a case before us of a party mulcted in a fine of $450 under an indictment which does not charge a violation of the law under which he is prosecuted, and by evidence which does not undertake to prove he ever sold in violation of the same.
I have but incidentally discussed that phase of the act which is violative of the Constitution in regard to uniformity of taxation, because I deemed an extended discussion unnecessary. I wish to say, however, that said act is inoperative for that reason. There are other questions of moment not discussed.
CONCURRING OPINION. (November 10, 1899.)