In this opinion, among other things, I hold:
1. The Legislature unquestionably has the power and authority, not only to prohibit the sale of intoxicating liquor in the dry territory of this State, but also to regulate how it can lawfully be gotten therein, when it deems it proper or necessary to be gotten therein for any purpose whatsoever.
2. In order to regulate how it can lawfully be gotten into such territory, it is neither necessary nor proper that its importation and delivery therein should be altogether and absolutely prohibited, for if thus prohibited there would be, and could be, nothing to regulate.
3. The Allison liquor law is constitutional and valid.
4. Section 4 thereof, without doubt, makes it an offense for any person to deliver such liquor to any other person in such territory, wherever obtained — whether in this or some other State.
5. The Webb-Kenyon Act of the Congress is constitutional.
6. That Act prohibits the shipment of liquor from one State into another, and thereby withdraws all protection of it as interstate commerce, whenever it is intended, by any person interested therein, to be received, possessed or in any manner used, in violation of the law of such other State.
7. No one can lawfully receive from another that which is made unlawful and an offense for the other to deliver to him.
8. The law of this State prohibiting and making it an offense for anyone to deliver liquor to another in dry territory, it is clearly "in violation of the law" of this State for anyone todeliver it to another therein; it is therefore also clearly "in violation of the law" of this State for anyone to receive it from any other therein.
9. It was perfectly competent for the Legislature to permit any person "for the use of himself or the members of his family residing with him, to personally carry such liquor" into dry territory — wherever obtained, whether in this or some other State. Neither this court nor any other, has power or authority to legally say it was not so competent nor to substitute its judgment for that of the Legislature.
10. Because the law authorizes anyone for said purposes to"personally carry" liquor therein, by no possible construction can it be held that every person could therefore have it shipped and delivered to him by any and every other person.
11. Section 9, permitting one, for said purpose, to get andpersonally carry liquor into such territory, in no way affects section 4, which prohibits and makes it an offense for any other to deliver it to him therein.
12. This court has no right or authority to repeal, annul or strike from the statute book any valid law. The Legislature alone can lawfully do that. I am well aware that usually little attention is given to dissenting opinions and that but few, outside of the parties immediately interested, ordinarily read them, yet the questions arising and which should be decided, in this case, in my opinion, are so vital and important to the whole State, and my earnest conviction, after the most thorough *Page 266 investigation and study, that they are not met, nor decided correctly by either Judges Harper or Davidson, impels me, as I see my duty, to write and file this opinion. I deplore its unusual length, but I feel I could not do justice to the cause, nor to myself, without discussing the questions and authorities fully. I first state the case and facts.
By proper and regular proceedings Peede, relator, was prosecuted, arrested and held by the sheriff of Kaufman County for unlawfully delivering — not shipping or transporting — intoxicating liquor, — four quarts of whisky, — to H.A. Laird in said county, under section 4 of the Act of August 21, 1913, page 62, commonly called the Allison liquor law, not under section 5 thereof. The complaint under which he was arrested and is held, charges that he "did unlawfully deliver to Laird said liquor" — not that he did ship, nor that he did transport said liquor. He sued out before the district judge a writ of habeas corpus. Thereunder a hearing was had and the district judge remanded him to the custody of the sheriff from which he appealed to this court.
The record establishes these facts: In the latter part of November, 1913, Laird ordered for his own use and that of his family residing with him from the Rush Distilling Company of Fort Smith, Arkansas, four quarts of whisky, and at the time sent $2 and paid therefor. No other, he claimed, was interested therein. Peede was the local agent and employe of the Wells Fargo Express Company at Kaufman in said county. Said express company was then, thereafter, and a long time prior thereto had been, engaged as an express company, a common carrier, in interstate and intrastate express business. Its business was on the line of railroads from Fort Smith, Arkansas, in the State of Arkansas, to Kaufman, Kaufman County, in Texas, as well as on other railroads. Upon receiving said order and payment therefor said distilling company shipped over and by said express company from Fort Smith, Arkansas, to Kaufman, Texas, the said liquor to Laird. Peede knew nothing about, and had no notice, that said Laird had ordered, paid for and had had shipped to him the said liquor until it was received by Peede as the agent of said express company at Kaufman, and he had no interest therein other or further than as his agency or employment for said express company; but he and his company both had that interest therein. Upon its arrival at Kaufman, and the knowledge thereof by Laird, Laird applied to Peede and demanded the delivery thereof to him by Peede. Peede declined to deliver it, unless and until Laird made affidavit to the effect that said whisky was not intended to be used or sold in violation of any law of Texas, and that it was ordered for his own personal use and that of his family only, and that no other person was interested therein. Upon Laird making this affidavit, Peede delivered said whisky to him in Kaufman, Texas. The prohibition law of this State was by the proper election, orders, etc., duly put in force in Kaufman County, Texas, in 1903, and has been in force in that county continuously since then.
"There can be no doubt that the regulation of the manufacture, sale, and use of intoxicating liquors has always been recognized as a subject *Page 267 peculiarly appertaining to the police power of the several States respectively." License Cases, 46 U.S. 5, How., 504 (12:256); Bartemeyer v. Iowa, 85 U.S. 18, Wall., 129 (21:929); Boston Beer Co. v. Massachusetts, 97 U.S. 25 (24:989); Foster v. Kansas (Johnson), 112 U.S. 201 (28:629); Mugler v. Kansas,123 U.S. 623 (31:205); Kidd v. Pearson, 128 U.S. 1 (32:346, 2 Inters. Com. Rep., 232); Eilenbecker v. Plymouth County Dist. Ct.,134 U.S. 31 (33:801)." All other authorities also so hold.
"The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law. The right to acquire, enjoy and dispose of property is declared in the Constitutions of the several States to be one of the inalienable rights of man. But this declaration is not held to preclude the Legislature of any State from passing laws respecting the acquisition, enjoyment and disposition of property. What contracts respecting its acquisition and disposition shall be valid and what void or voidable; when they shall be in writing and when they may be made orally, and by what instruments it may be conveyed or mortgaged, — are subjects of constant legislation." Crowley v. Christensen,137 U.S. 86.
In the same case (Crowley v. Christensen) the United States Supreme Court also said: "It is urged that, as the liquors are used as a beverage, and the injury following them, if taken in excess, is voluntarily inflicted and is confined to the party offending, their sales should be without restrictions, the contention being that what a man shall drink, equally with what he shall eat, is not properly matter for legislation.
"There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess, the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But, as it leads to neglect of business and waste of property, and general demoralization, it affects those who are immediately connected with and dependent upon him."
In the same case the United States Supreme Court further said: "By the general concurrence of opinion of every civilized and Christian community there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in this way has, therefore, been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a *Page 268 license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold and the hours of the day, and the days of the week, on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of Federal law. The police power of the Stateis fully competent to regulate the business — to mitigate itsevils, or to suppress it entirely." (Italics added.)
What is held to be true by the United States Supreme Court, above quoted, has been held in substance and effect to be true, practically by the decisions of every appellate court of every State in the United States, and, by every text-book writer on the subject. Every Legislature of every State in the United States has acted thereon, as shown by the legislation thereof. It has been so recognized and acted upon by the courts of this State since its organization and by the legislation of the State all the time since its organization down to the present time.
Prior to 1876, the Legislature of this State had enacted and enforced many laws regulating, restricting, and in some instances, prohibiting the sale of intoxicating liquors as a beverage. This had been done both by various general as well as by many special laws. The Constitution of 1876 of this State (sec. 20, art. 16) commanded the Legislature at its first session to enact a law whereby the qualified voters of any county, justice precinct, town or city, by a majority vote, from time to time might determine whether the sale of intoxicating liquors "shall be prohibited" within the prescribed limits. The Legislature at once complied with this mandate of the Constitution and passed said law and, as it was its duty, prohibited such sale where the counties or the subdivisions of any had legally voted, or should thereafter vote, that the sale should be prohibited therein. By that first Act it made such illegal sale a minor misdemeanor, punishable only by a small fine. Immediately after said constitutional provision went into effect, and the first law providing for such election was enacted by the Legislature, various counties and subdivisions of many others, held elections and determined thereby that the sale of intoxicating liquors therein should be prohibited. From that time down to the present time many elections in the various counties and subdivisions thereof have been held and such elections carried. So that now much more than half of all of the counties have prohibition in force therein. In a great many other counties various subdivisions thereof have so voted and thereby have determined that such sales shall be prohibited therein. In fact, with probably the exception of only a very few counties, prohibition is in force in all the counties of this State, or some subdivisions of all of them where not in the whole. People of this State, and of the various counties and subdivisions thereof, have all the time experienced much trouble in enforcing these laws and in preventing illegal sales of intoxicating liquors in the prohibition counties and subdivisions thereof. Wherever prohibition has thus been put into effect there have been a greater or less number of persons who have defied such laws, and persistently, designedly and intentionally, *Page 269 by craft and cunning, devised schemes and means to defeat the enforcement thereof, sometimes through apparent forms of law, and at others without any form of law. In one way or another they have evaded and circumvented the law, and, to a more or less degree, rendered its enforcement very difficult, and by their many schemes and devices they continue to violate it and make illegal sales. The people of this State have known these lamentable facts all this time. The legislators and Legislatures have known it, and as these lawless, designing and scheming persons have from time to time so manipulated as to evade and circumvent these various laws, the Legislature has passed many others to meet such emergencies, so that the will of the people and of the Legislature against this lawless element shall be carried out and the laws enforced. One of these schemes by the lawless element has been to have shipped, from points outside of the prohibition territory, to them in prohibition territory, frequent shipments, and various quantities of intoxicating liquors, claiming in every instance that they were not having it shipped to them and receiving it for the purpose of making illegal sales thereof, but for their own personal use and the use of their families. The records of this court, in many cases, show that this has been frequently done and is to some extent being done all over the State; and such persons, when prosecuted for either making individual sales thereof, or for engaging in the business of making such sales, have unhesitatingly sworn, on their trials, denying making such sales, and denying engaging in such business, and swearing that the quantities of liquor shipped to and received by them, however great or frequent, were for their own personal use and the use of their families, — notwithstanding the evidence by others in their cases has shown, and the juries have so found, that their testimony is false, and that they received such liquors not for their personal use, or for the use of their families, but for the purpose of making unlawful sales thereof and unlawfully engaging in such business. These shipments and deliveries to them have been over the various common carriers and express companies from points both within and without this State.
With such knowledge and under such circumstances our Legislature has, as stated, from time to time, passed such legislation and all such legislation, which was believed would, and intended to prevent such lawlessness, and effectively prohibit such illegal sales; and, as said by this court in Fitch v. State, 58 Tex.Crim. Rep.: "It would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses and prescribing penalties for the new conditions that may arise." Both this and our Supreme Court, wherever the question has arisen, have held that not only has the Legislature this power and authority, but it is its imperative duty to pass such legislation. Fitch v. State, supra; Slack v. State, 61 Tex.Crim. Rep.; Dozier v. State, 62 Tex. Crim. 259; Ex parte Dupree, 101 Tex. 150; Dupree v. State, 102 Tex. 455; Edmonson v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 887; Ex parte Townsend, 64 Tex.Crim. Rep., 144 S.W. Rep., 628; Ex parte Flake, *Page 270 67 Tex. Crim. 216, 149 S.W. Rep., 146, and other cases cited in these. This is so well settled by the many decisions of this and the Supreme Court, a further discussion is wholly unnecessary.
With this knowledge, and this duty imposed upon the Legislature, and for the purpose and for no other, than to make more effective said prohibition laws in prohibition territory, and to detect and prevent illegal sales of intoxicating liquors within this State, our Legislature duly enacted said Allison Act.
Judge Harper's opinion is written on the theory that this prosecution is based on section 5 of said Allison Act. How he can so claim is past all comprehension. That section is:
"It shall be unlawful for any person, firm or corporation, or any officer, agent or employe thereof, to ship, or transport in any manner or by any means whatsoever any . . . intoxicating liquors of any kind from a point within any other State . . . to any person, firm or corporation, or agent, officer, or employe thereof, in this State residing or living within any territory within this State where the sale of intoxicating liquors has been prohibited under the laws of this State, which . . . liquor is intended by any person interested therein to be received, possessed, sold or in any manner used, in violation of any law of this State."
That section, as is seen, does not in any way deal with the question of the delivery of liquors, either directly or indirectly. It deals exclusively with the question of theshipment or transportation thereof. It says: "It shall be unlawful for any person . . . to ship or transport, any liquor," etc. — not that it is unlawful for any person to deliver it.
If this prosecution was based on section 5, of course, it could not stand, for there is not an intimation in this record that Peede in any manner, shape or form, shipped or transported said liquor, nor is he in any manner, shape or form charged therewith. Both the charge and evidence exclude the idea that he shipped or transported it.
But he is unquestionably charged with delivering it, after itsshipment and transportation had been entirely completed, — and not until then. Let's see what the record shows:
The complaint, which is the sole basis of the accusation, avers: That said Peede "did then and there in Kaufman County, Texas, unlawfully deliver to H.A. Laird intoxicating liquor," etc. Neither by direct language, nor otherwise, does it aver that he shipped or transported it. No testimony whatever was introduced that tended to show or intimate that Peede shipped or transported the liquor. It all showed he delivered it. Laird so testified. So did Peede. Rutledge, the deputy sheriff, who made the complaint, swore he did so on information, etc., that Peededelivered it; "I made the complaint upon the theory that the defendant had no right to deliver a shipment of liquor, no matter to whom it came nor where it came from." Terry, the county attorney, swore: "This prosecution was instituted upon the theory that any delivery of intoxicating liquor in a local option county under an interstate shipment is *Page 271 unlawful." The judgment of the justice of the peace in the examining trial says he bound him over "to answer to the offense of unlawfully delivering intoxicating liquor." His commitment said the same thing. The judgment of the district judge was precisely to the same effect.
The first Allison Act was passed at the regular session of the Thirty-third Legislature and approved by the Governor March 31, 1913, page 125. Every section and feature of that Act by the clearest and most specific language shows that it applied exclusively to matters in this State. In fact, it says: "Nothing in this Act shall be construed as relating to interstate shipment and transportation of intoxicating liquor, or to the delivery of same to any person . . . within this State, on such interstate shipment or transportation."
At the time this Act was first introduced and was worked through both houses of the Legislature, the Webb-Kenyon bill had not been passed by the Congress, although that bill was finally passed before said Allison Act was approved. When the first called session convened July 21, 1913, of course it was then known by all men that the Webb-Kenyon bill had been passed and was in force. Then, and because thereof, the last Allison Act was introduced and passed. The Legislature intended, and did, take advantage of the Webb-Kenyon Act, by this last Act, so as not only that the Act should "relate to intrastate shipments, transportation and delivery of such liquors," but also clearly to "relate to interstate shipments, transportation and delivery" thereof.
Unquestionably section 4 of the present Allison Act takes the place, and is in lieu of section 3 of the first Act. I quote these sections side by side:
The present Act: The first Act:
"Except as otherwise provided "Except as otherwise provided in this Act, it shall be in this Act, it shall be unlawful for any person, firm unlawful for any person, firm or corporation, or any agent, or corporation, or any officer, officer or employe thereof to agent or employe thereof, to ship, transport, carry or ship, transport, carry or deliver any intoxicating liquor deliver any intoxicating liquor to any other person, firm or from any point within this corporation, or any agent, State to any other person, firm officer or employe thereof in or corporation, or any officer this State." or agent or employe thereof, within this State."
It, of course, is seen that in the present Act these quoted words in the first are omitted: "From any point within this State." These words in the first were intended and had the effect to restrict the offense exclusively to intrastate shipments, etc., occurring "within this State." They were struck out in the present Act, so as not to limit the Acts occurring exclusively to points "within this State," but without doubt so that also all acts occurring as to interstate shipments, transportation and delivery of such liquors should be included. There can be no shadow of doubt of this. *Page 272
Judge Harper, in his opinion, wherein he discusses section 5 of said Allison Act, says, in effect, that in order to make it applicable to the offense charged in this case it would be "necessary for the court to strike from said section the words — he quotes them — "and this the court is not authorized to do." . . . "The court is not the law enacting agency of the government — that function is conferred upon the Legislature."
These principles he announces are absolutely true. It is also as true that this court has no authority or right to repeal or annul any constitutional law, or part of it, duly enacted by the Legislature, — "that function is conferred upon the Legislature" exclusively. No one can deny this.
And yet, if his opinion in this case prevails, this court will annul, repeal and strike from the statute book section 4 of said law.
Judge Harper quotes certain words — the last of section 5, which he says ought to have been left out, and says if that had been done by the Legislature "the language then would have needed no construction, for it would have, in clear and unequivocal terms, prohibited the interstate shipment and transportation of intoxicating liquors into prohibition territory." Even if the Legislature had done what he says to section 5, that could not possibly have affected this case, for as I have shown, Peede was not prosecuted for either shipping or transporting liquor, — but only for delivering it. However, without a shadow of doubt, the Legislature anticipated his suggestion and fully met it in section 4, for it enacted: "It shall be unlawful for any person . . . to ship, transport, carry or deliver intoxicating liquor to any other person . . . in this State," thereby using "language which needs no construction, for it, in clear, unequivocal terms prohibits the interstate shipment and transportation of such liquors, but also in like language and terms, prohibits thedelivery thereof.
In my opinion the present Allison Act is a complete whole, entirely harmonious in its provisions and is the most effective and certain law to actually make prohibition territory dry, that has ever been enacted in this State. It may be that two members of this court, over the opinion of both the legislative and executive branches of this government, and the earnest protest of the other member, have power to annul, repeal and strike said law from the statute book, but surely it is done without right orauthority, as I see it.
Notwithstanding my voice and pen may be raised and used in vain to sustain said law, I deem it my duty to further discuss it from my viewpoint.
From said Act and all the provisions thereof, as shown above, it is perfectly clear and certain that the Legislature intended to make it an offense, and did make it an offense, for any person to deliver to any other person in prohibition territory in this State, intoxicating liquors, wherever obtained, — whether in this State or some other State. It does not prohibit, and it was not intended to prohibit, any person (sec. 9) for the use of himself, or the members of his family residing with him, *Page 273 to "personally carry" such liquor into prohibition territory, whether obtained from any point within, or without, this State. In other words, it does not prohibit, but authorizes, any person to "personally carry" for said purposes, at any time and all times, such liquor into such territory. But every person is prohibited from delivering it to him in prohibition territory, regardless of where it was obtained, or the use it is to be put to, or the quantity. All of this for the purpose and with the intent by the Legislature to meet a known evil whereby heretofore persons had had shipped and delivered to them in prohibition territory intoxicating liquors, claiming that it was for their own personal use, when, as a matter of fact, it was not, but intended and afterwards used to make illegal sales.
One question is, therefore, whether the Legislature had the power and authority to make it an offense for one person todeliver intoxicating liquors to another in prohibition territory when such other is authorized himself to "personally carry," whenever he desires, such liquor as he wants for said purposes when obtained in and shipped from another State.
In the recent case of Purity Extract T. Co. v. Lynch,226 U.S. 192, 57 L.Ed., 184, it was shown that for the purpose of more effectively enforcing its law against the sale of intoxicating liquors, which was prohibited by the laws of Mississippi, the Legislature of that State passed a law prohibiting absolutely the sale of malt liquors and made it an offense to do so, when it was conclusively shown that the malt liquor, for which that prosecution and conviction was had, had no alcohol whatever in it, but was merely a harmless drink, called "poinsetta." The Supreme Court of the United States in sustaining the constitutionality of that law said:
"That the State, in the exercise of its police power, may prohibit the selling of intoxicating liquors is undoubted. Bartemeyer v. Iowa, 18 Wall., 129, 21 L.Ed., 929; Boston Beer Co. v. Massachusetts, 97 U.S. 25, 24 L.Ed., 989; Mugler v. Kansas,123 U.S. 623, 31 L.Ed., 205, 8 Sup.Ct. Rep., 273; Kidd v. Pearson, 128 U.S. 1, 32 L.Ed., 346, 2 Inters. Com. Rep., 232, 9 Sup.Ct. Rep., 6; Crowley v. Christensen, 137 U.S. 86, 34 L.Ed., 620, 11 Sup.Ct. Rep., 13. It is also well established that when a State exerting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. Booth v. Illinois, 184 U.S. 425, 46 L.Ed., 623, 22 Sup.Ct. Rep., 425; Otis v. Parker, 187 U.S. 606, 47 L.Ed., 323, 23 Sup. Ct. Rep., 168; Ah Sin v. Wittman, 198 U.S. 500, 504, 49 L.Ed., 1142, 1144, 25 Sup.Ct. Rep., 756; New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 53 L.Ed., 75, 29 Sup.Ct. Rep., 10; *Page 274 Murphy v. California, 225 U.S. 623, 56 L.Ed., 1229, 32 Sup.Ct. Rep., 697. With the wisdom of the exercise of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose, it can not be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the Legislature, — a notion foreign to our constitutional system.
"Thus, in Booth v. Illinois, 184 U.S. 425, 46 L.Ed., 623, 22 Sup.Ct. Rep., 425, the defendant was convicted under a statute of that State which made it a criminal offense to give an option to buy grain at a future time. It was contended that the statute, as interpreted by the State court, was `not directed against gambling contracts relating to the selling or buying of grain or other commodities, but against mere options to sell or buy at a future time without any settlement between the parties upon the basis of differences, and therefore involving no element of gambling.' The argument was that it directly forbade the citizen `from pursuing a calling which, in itself, involves no element of immorality.' This court, in sustaining the judgment of conviction, said: `If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the State thinks that certain admitted evils can not be successfully reached unless that calling be actually prohibited, the courts can not interfere, unless looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear unmistakable infringement of rights secured by the fundamental law.' It must be assumed, it was added, that `the Legislature was of opinion that an effectual mode to suppress gambling grain contracts was to declare illegal all options to sell or buy at a future time'; and the court could not say that the means employed were not appropriate to the end which it was competent for the State to accomplish. (Id., pp. 429, 430.)
"The same principle was applied in Otis v. Parker,187 U.S. 606, 47 L.Ed., 323, 23 Sup.Ct. Rep., 168, which dealt with the provision of the Constitution of California that all contracts for the sale of shares of the capital stock of any corporation, on margin, or to be delivered at a future day, should be void, and that any money paid on such contracts might be recovered. The objection urged against the provision in its literal sense was that the prohibition of all sales on margin bore no reasonable relation to the evil sought to be cured; but the court upheld the law, being unwilling to declare that the deep-seated conviction on the part of the people concerned as to what was required to effect the purpose could be regarded as wholly without foundation. (Id., pp. 609, 610.)
"A strong illustration of the extent of the power of the State is found in New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 53 L.Ed., 75, 29 Sup.Ct. Rep., 10. The State of New York, by its forest, fish and game law, prohibited the possession of certain game during the closed season. The statute covered game coming from without the State. It *Page 275 appeared that Silz was charged with the possession of plover and grouse which had been lawfully taken abroad during the open season and had been lawfully brought into the State; that these game birds were varieties different from those known as plover and grouse in the State of New York; that, although of the same families, in form, size, color, and markings, they could readily be distinguished from the latter; and that they were wholesome and valuable articles of food. This court affirmed the conviction, saying: `It is insisted that a method of inspection can be established which will distinguish the imported game from that of a domestic variety, and prevent confusion in its handling and selling. That such game can be distinguished from domestic game has been disclosed in the record in this case, and it may be that such inspection laws would be all that would be required for the protection of domestic game. But, subject to constitutional limitations, the Legislature of the State is authorized to pass measures for the protection of the people of the State in the exercise of the police power, and is itself the judge of the necessity or expediency of the means adopted.' It was pointed out that the prohibition in question had been found to be expedient in several States, `owing to the possibility that dealers in game may sell birds of the domestic kind under the claim that they were taken in another State or country.'
"It was competent for the Legislature of Mississippi to recognize the difficulties besetting the administration of laws aimed at the prevention of traffic in intoxicants. It prohibited, among other things, the sale of `malt liquors.' In thus dealing with a class of beverages which, in general, are regarded as intoxicating, it was not bound to resort to a discrimination with respect to ingredients and processes of manufacture which, in the endeavor to eliminate innocuous beverages from the condemnation, would facilitate subterfuges and frauds and fetter the enforcement of the law. A contrary conclusion, logically pressed, would save the nominal power while preventing its effective exercise. The statute establishes its own category. The question in this court is whether the Legislature had power to establish it. The existence of this power, as the authorities we have cited abundantly demonstrate, is not to be denied simply because some innocent articles or transactions may be found within the proscribed class. The inquiry must be whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.
"That the opinion is extensively held that a general prohibition of the sale of malt liquors, whether intoxicating or not, is a necessary means to the suppression of trade in intoxicants, sufficiently appears from the legislation of other States and the decision of the courts in its construction. State v. O'Connell, 99 Me. 61, 58 A. 59; State v. Jenkins, 64 N.H. 375,10 A. 699; State v. York, 74 N.H. 125, 127,65 A. 685, 13 Ann. Cas., 116; State ex rel. Guilbert v. Kauffman,68 Ohio St. 635, 67 N.E. 1062; Luther v. State, 83 Neb., 455, 20 L.R.A. (N.S.), 1146, 120 N.W. 125; Pennell v. State, *Page 276 141 Wis. 35, 123 N.W. 115. We can not say that there is no basis for this widespread conviction.
"The State, within the limits we have stated, must decide upon the measures that are needful for the protection of its people, and, having regard to the artifices which are used to promote the sale of intoxicants under the guise of innocent beverages, it would constitute an unwarrantable departure from accepted principles to hold that the prohibition of the sale of all malt liquors, including the beverage in question, was beyond its reserved power."
The still more recent case of Patsone v. Penn., decided by the United States Supreme Court, in 232 U.S. 138, reported in the issue of February 15, 1914, of the Law. Co-op. U.S. Supreme Court advance opinions, reiterated and emphasized precisely the same doctrine. In that case the validity of an Act of the Legislature of Pennsylvania of May 8, 1909, was attacked as unconstitutional, which Act made it an offense for any resident foreign born person to own or be possessed of a shotgun or rifle in that State and a forfeiture of the gun, too. The object of the Legislature in enacting such law was to protect the wild game in that State. In that case the United States Supreme Court said:
"Under the Fourteenth Amendment the objection is twofold; unjustifiably depriving the alien of property, and discrimination against such aliens as a class. But the former really depends upon the latter, since it hardly can be disputed that if the lawful object, the protection of wild life (Geer v. Connecticut,161 U.S. 519, 40 L.Ed., 793, 16 Sup.Ct. Rep., 600), warrants the discrimination, the means adopted for making it effective also might be adopted. The possession of rifles and shotguns is not necessary for other purposes not within the statute. It is so peculiarly appropriated to the forbidden use that if such a use may be denied to this class, the possession of the instruments desired chiefly for that end also may be. The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defense. So far, the case is within the principle of Lawton v. Steele, 152 U.S. 133, 38 L.Ed., 385, 14 Sup.Ct. Rep., 499. See further, New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 53 L.Ed., 75, 29 Sup.Ct. Rep., 10; Purity Extract Tonico Co. v. Lynch, 226 U.S. 192, 57 L.Ed., 184, 33 Sup.Ct. Rep., 44.
"The discrimination undoubtedly presents a more difficult question. But we start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. Lindsley *Page 277 v. National Carbonic Gas Co., 220 U.S. 61, 80, 81, 55 L.Ed., 369, 378, 379, 31 Sup.Ct. Rep., 337, Ann. Cas., 1912, C., 160. The State `may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses.' Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 57 L.Ed., 164, 169, 33 Sup.Ct. Rep., 66; Rosenthal v. New York,226 U.S. 260, 270, 57 L.Ed., 212, 216, 33 Sup.Ct. Rep., 27; L'Hote v. New Orleans, 177 U.S. 587, 44 L.Ed., 899, 20 Sup.Ct. Rep., 788. See further Louisville Nashville R.R. Co. v. Melton,218 U.S. 36, 54 L.Ed., 921, 47 L.R.A. (N.S.), 84, 30 Sup.Ct. Rep., 676. The question therefore narrows itself to whether this court can say that the Legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent. Barrett v. Indiana, 229 U.S. 26, 29, 57 L.Ed., 1050, 1052, 33 Sup.Ct. Rep., 692.
"Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare that the State Legislature was wrong in its facts. Adams v. Milwaukee,228 U.S. 572, 583, 57 L.Ed., 971, 977, 33 Sup.Ct. Rep., 610. If we might trust popular speech in some States it was right; but it is enough that this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. See Trageser v. Gray, 73 Md. 250, 9 L.R.A., 780, 25 Am. St. Rep., 587,20 A. 905; Com. v. Hana, 195 Mass. 262, 11 L.R.A. (N.S.), 799, 122 Am. St. Rep., 251, 81 N.E. 149, 11 Ann. Cas., 514."
The case of Lawton v. Steele, 152 U.S. 133, cited in the two cases of the United States court just above quoted from, was an attack on the constitutionality of the law of the State of New York, making it an offense to catch fish otherwise than by rod and line, and another Act not only making it an offense, but forfeiting as against the owner, any net or other means or device for taking fish. In other words, the Act was for the protection of the fish.
The case of New York ex rel. Silz v. Hesterberg, 211 U.S. 31, likewise cited in the two cases from the United States Supreme Court, just above quoted from; and the said case of Patsone v. Penn., supra, were for the protection of the wild fowls in the States of New York and Pennsylvania.
We are taught in Holy Scripture, in estimating the value of the body and soul, — a human being, — that two sparrows were sold for a farthing, and yet, not one of them should fall to the ground without the notice of our Heavenly Father. And again, that five sparrows were sold for two farthings, and not one of them was forgotten before God. In the cases from the United States Supreme Court, cited above, the States of New York and Pennsylvania were protecting their fish and wild fowls. In this State our Legislature is undertaking to protect its citizens, — its men, women and children, — from the awful effects of the unlawful sale and use of intoxicating liquors as a beverage, which the United States Supreme Court, and every other court in this land, says the *Page 278 injury to the person drinking it to excess "first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement, which it creates. It leads to neglect of business and waste of property and general demoralization. It affects those who are immediately connected with and dependent upon him." Surely, if another State can protect its wild fowls from the gun, and its fish from the net, Texas can protect its men, women and children from the awful curse and fearful effects of the illegal sale of intoxicating liquors.
The Legislatures, and not the courts, "must decide upon the measures that are needful for the protection of its people, for with the wisdom of the exercise of that judgment the court has no concern. To hold otherwise would be to substitute judicial opinion of expedience for the will of the Legislature, — notion foreign to our constitutional system." Purity Extract T. Co. v. Lynch, supra.
As shown above, "there can be no doubt that the regulation of the manufacture, sale, and use of intoxicating liquors has alwaysbeen recognized as a subject peculiarly appertaining to the police power of the several States respectively." This is not only clearly established by the cases cited above, and many others from the United States Supreme Court, but it is so established by the decision of every State in this Union, which has passed on the question, and every text-book writer who has treated the subject, without any exception.
Soon after the Wilson Act, hereinafter quoted, was enacted by the Congress, — and which Act is still in full force, — it was contended before the United States Supreme Court, in Vance v. Vandercook Co., 170 U.S. 438 (42 L.Ed., 1140), that a law of the State of South Carolina was contrary to the commerce clause of the United States Constitution, and void as unconstitutional, because that Act did not authorize or permit any State to pass any law to regulate the sale of such liquors, when shipped from another State, but authorized and permitted the State only to absolutely and altogether prohibit the sale; and as the law of said State did not so prohibit but regulated only, said State Act was void. But the United States Supreme Court held the reverse of said contention, holding:
"Congress, it is argued, by the Act in question (Wilson Act) has submitted merchandise in original packages only to the control of State laws `enacted in the exercise of its police powers.' As the State law here in question does not forbid, but, on the contrary, authorizes, the sale of intoxicants within the State, hence it is not a police law, therefore not enacted in the exercise of the police power of the State, and consequently does not operate upon the sale of original packages within the State. But the premise upon which these arguments rest is purely arbitrary and imaginary. From the fact that the State law permitsthe sale of liquor subject to particular restrictions and onlyupon enumerated conditions, it does not follow that the law isnot a manifestation of the police power of the State. The plainpurpose of the Act of Congress having been to allow Stateregulations to operate upon the *Page 279 sale of original packages of intoxicants coming from otherStates, it would destroy its obvious meaning to construe it aspermitting the State laws to attach to and control the sale onlyin case the States absolutely forbade sales of liquor, and not toapply in case the States determined to restrict or regulate thesame.
"The confusion of thought which is involved in the proposition to which we have just referred is embodied in the principle upon which the court below (80 Fed. Rep., 791) mainly rested its conclusion. That is, `if all alcoholic liquors, by whomsoever held, are declared contraband, they cease to belong to commerce, and are within the jurisdiction of the police power. But so long as their manufacture, purchase, or sale, or their use as a beverage in any form or by any person, are recognized, they belong to commerce, and are without the domain of the police power.' But this restricts the police power to the mere right toforbid, and denies any and all authority to regulate or restrict. The manifest purpose of the Act of Congress was to subject original packages to the regulations and restraints imposed bythe State law. If the purpose of the Act had been to allow the State law to govern the sale of the original package only where the sales of all liquor were forbidden, this object could have found ready expression, whilst, on the contrary, the entire context of the Act manifests the purpose of Congress to give to the respective States full legislative authority, both for the purpose of prohibition as well as for that of regulation andrestriction with reference to the sale in original packages of intoxicating liquors brought in from other States." (Italics added.)
The same contention was again made before said court in Reymann Brewing Co. v. Brister, 179 U.S. 445, as to an Act of the State of Ohio, wherein said court again held the reverse of said contention, holding:
"As this statute subjects intoxicating liquors imported into a State to the operation and effect of the laws of such State only when enacted in the exercise of its police powers, it is contended that such is not the character of the Dow law; that, as it contains no prohibition upon the manufacture or sale of intoxicating liquors, and only purports to regulate the trafficking therein, it is not a police measure.
"As we have heretofore stated, the Supreme Court of Ohio has construed the law to aim at controlling and regulating sales in quantities less than one gallon in saloons or at places other than the place of manufacture, and to be, therefore, within the scope of the police power. We think that this view of the meaning and intent of the statute is consistent with its language, and, even if not bound by the construction put upon the statute by the State court when applying the provisions of the Wilson law, we do not hesitate to adopt it.
"A similar contention was disposed of by this court in the case of Vance v. W.A. Vandercook Co., 170 U.S. 438, 42 L.Ed., 1104, 18 Sup.Ct. Rep., 674, and where it was said: `From the fact that the State law permits the sale of liquor, subject to particular restrictions, and only upon enumerated conditions, it does not follow that the law is not a manifestation of the police power of the State. The plain *Page 280 purpose of the Act of Congress having been to allow State regulations to operate upon the sale of original packages of intoxicants coming from other States, it would destroy its obvious meaning to construe it as permitting the State laws to attach to and control the sale only in case the States absolutelyforbade sales of liquor, and not apply in case the States determined to restrict or regulate the same.'" (Italics added.)
Again, the same contention was made before the Ohio Supreme Court in Stevens v. State, 61 Ohio St. 597, on p. 605 (56 N.E. 478). That court held to the contrary, saying:
"Notwithstanding the plain power here conferred (Wilson Act) on the States in the exercise of the police power to regulate the traffic in intoxicating liquors, irrespective of whether the traffic be interstate or domestic, it is contended that to be a police regulation within the above statute of the United States, the prohibition of the sale of intoxicating liquors must be absolute; and because as claimed, the local option law permits the sale of cider, and wine manufactured from the pure juice of grape, it is not a proper exercise of the police power within the Act of Congress. There is nothing in the language of the statute that gives countenance to such construction. It makes all intoxicating liquors, transported into any State for sale or consumption, subject to the operation and effect of all laws of such State enacted in the exercise of its police powers. There is no purpose manifested here as to what shall be the character of these laws, other than that they shall be of a police nature; and any law that regulates the traffic is of a police nature, and within the above statute, unless it should discriminate against the products of other States.
"The contention is being based upon a misconception of some things said in Scott v. Donald, 165 U.S. 58, at p. 100. That it is a misconception is clearly pointed out by Justice White in the subsequent case of Vance v. Vandercook, 170 U.S. 438, 446. This having been pointed out, it is then said: `From the fact that the State law permits the sale of liquor subject to particular restrictions and only on enumerated conditions, it does not follow that the law is not a manifestation of the police power of the State. The plain purpose of the Act of Congress having been to allow State regulations to operate upon the sale of original packages of intoxicants coming from another State, it would destroy the obvious meaning to construe it as permitting the State laws to attach and control the sale only in case the State absolutely forbade sales of liquor, and not to apply in case the State determined to restrict or regulate the same.' The local option law, section 2, prohibits the sale of all intoxicating liquors as a beverage, or the keeping of a place therefor in all townships availing themselves of its provisions. It, however, permits the manufacture and sale of cider, and the sale of wine manufactured from the pure juice of the grape, cultivated in this State, but prohibits the keeping of a place where wine and cider are sold as a beverage. It also permits the sale by a registered druggist of pure wines or liquors for mechanical, medicinal or sacramental purposes. *Page 281 The law seems sufficiently drastic, and, if enforced, must conduce to the peace, good order and sobriety of a township; and is therefore in every sense a police regulation."
No court has ever held as contended for above. It could just as plausibly and with equal force be argued that because the Allison Act very properly and reasonably permits druggists, hospitals, educational, etc., institutions, manufacturers under certain circumstances, and priests and ministers for sacramental purposes, to have liquor shipped and delivered to them in prohibition territory, the Act is invalid and void, and the Webb-Kenyon Act inapplicable to interstate shipments, as to argue that because the Act permits a person for his own use and that of his family, to get and personally carry such liquor into such territory, renders the Act invalid, and the Webb-Kenyon Act inapplicable. If such fallacious contention should prevail, then every State would be under the necessity of absolutely prohibiting the manufacture, sale and use of liquor for every purpose under the sun, and it could not in any possible way regulate the matter.
Said Webb-Kenyon Act is: "An Act divesting intoxicating liquors of their interstate character in certain cases.
"The shipment or transportation in any manner or by any means whatsoever of any . . . intoxicating liquor . . . from one State . . . into any other State . . . which . . . is intended by any person interested therein to be received, possessed, sold or inany manner used either in the original package, or otherwise, in violation of such law of such State . . . is hereby prohibited."
Now what is it the law of this State — the Allison Act — makes unlawful for a person to do? Unquestionably to deliver intoxicating liquor in prohibition territory to any other person, regardless of where the liquor was obtained, whether in this or some other State.
It must be kept in mind that Laird, the buyer, is not prosecuted for receiving, but instead, Peede is prosecuted fordelivering the liquor. The Allison law does not specifically make it an offense for any person to receive liquor in prohibition territory, whether received for a lawful or an unlawful purpose. But it does clearly make it an offense for any person to deliver liquor to any other person in such territory, whether delivered for a supposed lawful or an unlawful use or purpose. (The exceptions of druggists, etc., in other sections have no application.) However, because the law does not make it anoffense to receive liquor in prohibition territory, it by no means follows that it is not unlawful to deliver it, or evenreceive it, therein. The Webb-Kenyon Act makes many thingsunlawful, without making any of them an offense, or punishing therefor. So of the Allison Act; it making it unlawful and an offense, too, for any person to deliver liquor to another in prohibition territory, it thereby is not lawful, but must be unlawful, for such other to receive it, although it does not make it an offense to receive, nor punish the receiving person.
Our law makes it unlawful and an offense under certain circumstances for a person to sell liquor in prohibition territory. It does not, *Page 282 though it might, make it an offense to buy it in such territory. But the law making it an offense to sell, it would not therefore be lawful, but unlawful, to buy although the buyer is not punishable.
Neither by section 9 of the Allison Act, nor by any other section thereof, nor by the whole Act, was it intended or meant that it should be lawful for a person to get liquor into prohibition territory for his own personal use or that of his family, in any and every way he might choose. On the contrary, it was intended and meant that he could get it in one way only, — by himself personally going after and getting it, and himself"personally carrying" it therein. This section 9 is a regulation of how, and prescribes the only way, a person can lawfully get liquor into prohibition territory for his own use or that of his family. He can not lawfully have it delivered to him by any other person for that purpose. Any delivering to him by any other person, even for that purpose would, without doubt, be unlawful. His receipt of it, therefore, from any person, though not a specific offense, nor punishable, is undoubtedly unlawful. No onecan lawfully receive from another what is made unlawful for theother to deliver to him. Campbell v. Jones, 2 Texas Civ. App. 263[2 Tex. Civ. App. 263], 21 S.W. Rep., 723; Hunt v. Robinson, 1 Tex. 748; Shelton v. Marshall,16 Tex. 344; Logan v. Norris, 100 Tex. 228 [100 Tex. 228]; Miller v. Ammon, 145 U.S. 421, 36 L.Ed., 759; Armstrong v. Toler, 11 Wheat., 258, 6 L.Ed., 468; Hanauer v. Doane, 12 Wall., 342, 20 L.Ed., 439. It is useless to collate and cite the other decisions of this State and the United States and the decisions of the various other States and text-books to the same effect.
Now the Webb-Kenyon Act does not say, mean or imply that the State law which is violated or to be violated, shall prescribe some penal offense and punishment therefor as such, but just so such liquor is intended by the person interested therein to bereceived, possessed, sold, or in any manner used, unlawfully. In other words, the tenor, intention and meaning of the Congress by the whole Webb-Kenyon Act, unquestionably was to entirely remove the protection as interstate commerce from intoxicating liquor, so that each State, by the laws thereof, could have full application thereto and thereabout, both to prohibit and to regulate.
Evidently section 9 was placed in the Allison Act, and kept there, when an attempt was made to strike it therefrom, for obvious reasons. Some of these were, — there may have been others, —
The legislators may have been in doubt whether a law could constitutionally prohibit absolutely a person in prohibition territory from himself getting and personally carrying liquor for his own use and that of his family therein. The Supreme Courts of many States have held such prohibition void as unconstitutional. The courts of this State have never passed on the question. The Legislature doubtless did not want to imperil the bill on this constitutional question. Besides, it was sought to strike out this section by the enemies of the bill — not its friends, — which made its friends more cautious.
Again, some of the older voters, although prohibitionists, occasionally *Page 283 want a little liquor as it is said, "for the stomach's sake"; and they don't want to entirely and absolutely cut themselves off from getting it, when they can go after, get and themselves "personally carry" it to their homes for their own use and that of their families. The enemies of the bill, of course, knew this and they sought to make the law so obnoxious that such voters would not vote for prohibition; or, if it was already in force, they would vote to do away with prohibition in their territory. The friends of the bill wanted to avoid this.
Again, as forcibly stated by the Supreme Court of Delaware in State v. Grier, 88 A. 579, hereinafter more fully quoted, in order to make the existing prohibition law more effective and assist in carrying out the will of the people in voting for prohibition, the Legislature regulated how a person, for his own use and that of his family, could lawfully get liquor into prohibition territory. "Manifestly the Legislature believed that more good could be accomplished, and the existing laws would be more effective, if the importation was not entirely prohibited. . . . They evidently thought it would be better to permit the individual" to himself get and "personally carry" it therein. . . . "The controlling thought and intention was not that no liquor at all should be had in such territory, for `there was a fear in the mind of the Legislature that if the law was made so rigid as to prevent the individual from securing liquor in any way and in any quantity,' for his own use and that of his family the `effect would be that the existing law would become so unpopular as to be incapable of enforcement.'"
But whatever the reason, the Legislature only, and not this court, had the power and authority to determine whether or not such regulation should be a part of said law.
By putting and keeping said section in said Act the Legislature, by no construction, could have intended to turn every person in prohibition territory loose, so that he could order and have shipped and delivered to him for his own use and that of his family liquor by the bottle, case, barrel or carload by any and every person and means he chose. On the contrary, it intended, as it says, that he, himself, for said purposes, could "personally carry" such liquor into such territory, but could lawfully get it therein in no other way.
It is a general principle of law that whatever a person can himself do, he can also do by another. The Legislature unquestionably can change this rule and require the person himself to do the act, and prohibit any other from doing it for him. Such law would be perfectly valid. Our laws furnish many examples of this. Thus, before the Allison Act, any person in prohibition territory could legally order liquor shipped and have it delivered by the express or other carrier to him therein. But the law expressly required him to receive and receipt for it inperson, and punished the carrier's agent if he delivered it to any other than the owner in person. (P.C., art. 606.) The Congress has also enacted substantially such law, Act of March 4, 1909, Crim. Act. Again our law in certain circumstances requires the voter to pay his poll tax and get his receipt or exemption inperson. Under other *Page 284 circumstances it permits him to authorize in writing another to pay this tax for him. But in either event it prohibits the tax collector from delivering the receipt or exemption to any other than the voter in person, and makes it an offense, and punishes him, if he does so. (R.S., 2944-5-5a, P.C., 238.) The fact that the voter can pay the tax by an agent, and that it is his privilege, if not his duty, to pay the tax, by no means would it logically, or otherwise, follow, that the law could not make it illegal for the tax collector to deliver the receipt or exemption to any other than the voter in person. There can be no doubt of the validity of such legislation. Neither can there be any doubt of the validity of the Allison Act where it prohibits any person from delivering such liquor to another in prohibition territory, and makes it an offense to do so, even though such person is authorized himself for his own use and that of his family to get liquor anywhere outside of prohibition territory, and to himself, "personally carry," it into such territory. His personally getting and "personally carrying" it into such territory is quite a different and distinct thing from having some other persondeliver it to him in such territory.
In American Express Co. v. Beer, 65 So. Rep., 575, the Supreme Court of Mississippi, in a very able opinion, tersely expresses what was intended by the Webb-Kenyon Act, saying:
"The Webb-Kenyon Act, and a comparison of its language with that of the Wilson Act, will demonstrate that its draftsman intended to cure the defect in the Wilson Act and to make it unlawful to transport into a State from without intoxicating liquors intended by any person interested therein to be dealtwith contrary to the laws of the State; in other words, to divest such intoxicating liquor altogether of its interstate character, and thereby permit the laws of the State into which it was being transported to operate upon it immediately upon its crossing the State line — from which it follows that the State may prescribe not only the use to which liquor is to be put, but the quantitythat, and the manner in which it may be received." (Italics added.)
A statute of Kentucky made it an offense for any person or corporation to bring intoxicating liquor into, or deliver such liquor into any prohibition territory of said State from any wet territory thereof, but expressly authorized any person, for his private use, to bring upon his person, or as his personalbaggage, such liquor not to exceed one gallon. The express company corporation in wet territory received from the shipper a box containing bottles of whisky, and shipped and delivered it to the consignee into dry territory — all within said State. The quantity was not shown though probably only one gallon or less. It was not brought into said dry territory by the consignee uponhis person nor as his personal baggage, though doubtless intended for his private use. The express company in that case, Adams Express Co. v. Commonwealth, 112 S.W. Rep., 577, was convicted, and the Supreme Court affirmed the conviction, among other things, saying:
"The State and Federal governments have done much to foster commerce, and the public policy has been upheld. But the statute in question *Page 285 here is not for the benefit of commerce. It rests upon a different conception. The Legislature is aiming to protect men, women and children from the vices of an article of commerce, which is deemed by the Legislature an evil, and in doing so they have attempted to put a check upon a vehicle of commerce. The legislation is anti-commercial. It puts the peace and good order of society above its commerce in this particular. In construing and applying the statute, if the courts devitalize it by subordinating it to the supposed interests of commerce, the manifest legislative intent would be frustrated, which is contrary to every allowable rule of statutory construction. . . . Let them be as careful to obey the law as they are to further their own interests and there will be little doubt but that the law will be obeyed."
The United States Supreme Court in L. N. Ry. Co. v. Cook Brewing Co., 223 U.S. 70, 56 L.Ed., 355, expressly recognized the validity of said Kentucky law as applicable to intrastate shipments of liquor, saying: "Valid as the Kentucky legislation undoubtedly was as a regulation in respect to intrastate shipments of such articles" . . . and further: "The obligation of the railroad company to conform to the requirements of the Kentucky law, so far as that law prohibited intrastate shipments, is clear, and to this extent its circular notification was commendable."
The State of Idaho passed a law making it an offense for any person to ship intoxicating liquor to any person in prohibition territory, in that State, or deliver such liquor to anyone therein, wherever obtained. Zimmerman Co. sued to compel by mandamus the Oregon-Washington R.R. Co. to receive from them at Portland, Oregon, a gallon of whisky and ship and deliver it to Charles Holsten at Heyburn, Idaho, for his personal use. Heyburn was in prohibition territory in Idaho. The United States court in Oregon, in U.S. ex rel. Zimmerman Co. v. Ore.-Wash. R. N. Co., 210 Fed. Rep., 378, refused to mandamus, holding said Idaho law was valid, that the Webb-Kenyon Act was also valid, and under it the railroad could lawfully refuse to receive an interstate shipment of liquor for the personal use of the consignee, intended to be delivered into prohibition territory in another State, the laws of which prohibited its delivery therein.
The laws of Mississippi made it an offense for any person to ship and deliver intoxicating liquor from any other State to any person in the prohibition territory of Mississippi, but expressly authorized a person to order, have shipped and delivered to him in such territory not exceeding one gallon for his own use or that of his family. The law also prohibited the delivery to him of even the one gallon and made it an offense to do so, unless he would first make affidavit that it was for his own use, etc., and that he would not use it in violation of law. In said case of Amer. Exp. Co. v. Beer, supra, Beer contended said law was void under the commerce United States constitutional clause, and was not authorized by the Webb-Kenyon Act, on both said phases: First, that the State could not limit the delivery of the quantity of liquor for personal use (in that instance it was three gallons); and, second, it *Page 286 could not require the party to make said affidavit as a condition precedent to its delivery to him as it was for his personal use, — the law not forbidding anyone to so use liquor. The court in that case held adversely to each of said contentions, — that the law could, and did limit the quantity to one gallon, and prohibit the delivery even of the one gallon, unless the consignee made said affidavit, although it was for his own personal use.
The Supreme Court of Delaware, through Chief Justice Pennewill, in State v. Grier, 88 Atl. Rep., 579, has delivered a very able and exhaustive opinion in which a law of Delaware, and said Webb-Kenyon Act were attacked for unconstitutionality on almost, if not every, point that could be raised. The opinion fully sustains both laws.
The Delaware law was enacted after the Webb-Kenyon Act was passed, and made it an offense for any common carrier to receive for shipment to or deliver, intoxicating liquor to any person or place where prohibition was in force in said State; and also for any person or his agent, engaged in the manufacture or sale of such liquor, to carry, bring or convey the same into such territory.
But it expressly excepted shipments and deliveries to physicians and druggists in unbroken packages not to exceed five gallons, and to churches of wine in such packages, for sacramental purposes.
It also expressly authorized anyone to carry, bring, or have brought such liquor from any point in said State into such territory not to exceed one gallon in twenty-four hours, or as otherwise expressed, made it unlawful for anyone to carry, etc., more than one gallon within said time.
Tony Kayser was a liquor dealer in Philadelphia, Pennsylvania. Grier was his agent. Prohibition was in force in Sussex County, Delaware. Conaway, who lived in Sussex County, ordered two quarts of whisky from Kayser and paid him $2 therefor. Conaway intended to use the whisky for his own consumption, and not to sell or otherwise dispose of it. Kayser sent the whisky from Philadelphia into said Sussex County, Delaware, by his agent, Grier, who carried it from Philadelphia into, and delivered it, to Conaway in Sussex County. Grier was convicted for bringing the whisky into Sussex County and delivering it to Conaway.
The court in that case showed that prior to said last law, prohibition, in force in said Sussex County, forbade the sale and manufacture of intoxicating liquor, but did not prevent the shipment or bringing liquor therein in any quantity or by any means. Our law prior to the Allison Act, did not prohibit such shipment or delivery. The court then said:
"In order to make the existing laws more effective, and assist in carrying out the expressed will of the people, the Legislature undertook, by the Act under consideration, to regulate the importation of liquors into this local option territory. Manifestly the Legislature believed that more good would be accomplished, and the existing laws would be more effective, if the importation was not entirely prohibited. . . . They evidently thought it would be better to permit the individual to *Page 287 bring into the local option territory a small quantity of liquor in any one day. But this privilege or exemption was restricted to the individual himself, and denied to liquor dealers and common carriers. The purpose is obvious, and the discrimination, the State contends, was entirely proper under the circumstances. The controlling thought and purpose was, that no liquor should be sold in Kent or Sussex Counties, but there was a fear in the mind of the Legislature that if the law was made so rigid as to prevent the individual from securing liquor in any way or in any quantity, the effect would be that the existing law would become so unpopular as to be incapable of enforcement. Therefore the bringing in of small quantities by individuals was made permissible. . . . To that extent the statute is clearly and purely regulatory. . . .
"The Legislature did not attempt to prevent or prohibit entirely the bringing of liquors into local option territory, but rather to regulate it by providing by whom and in what quantities it should be brought. Such was undoubtedly the legislative scheme and intent. . . . The purpose being that only individuals, physicians, druggists and churches should have the right to bring in liquors, it was necessary in the fulfillment of the legislative scheme that the Act should clearly designate those who should not have the right. It was therefore provided . . . that common carriers and liquor dealers should not have such right."
The opinion then proceeds to completely demonstrate that the Legislature had the right to prohibit liquor dealers and common carriers from carrying and delivering liquor in such territory, although it permitted others to ship and receive, and a party himself to carry, etc., one gallon therein for his own use, and that said State law was valid and covered by said Webb-Kenyon Act, which also was constitutional. All these cases support and sustain my views.
The Fourteenth Amendment to the United States Constitution in no way prevents any State from regulating or prohibiting the handling, use or sale, etc., of intoxicating liquor in any way the State desires best for the protection of its people. 1 Woolen Thorn. Intox. Liq., secs. 108-109. This is so well settled it is unnecessary to discuss it, or cite other authorities.
Appellant contends that the Allison law does not apply to interstate shipments. I am unable to comprehend how such contention can be seriously made when the very face of the statute is to the contrary. Said Act, — the Allison law, — in its very first section states that it amends chapter 67 of the Acts of the Thirty-third Legislature, which was approved March 31, 1913, page 125. This original Act by the several sections thereof shows that it was intended to apply, and did apply, to the shipment, delivery, etc., of intoxicating liquors to and from points wholly within this State. And by section 4 thereof it expressly provided that it should not be construed as relating to interstate shipments, etc. After the original Act was passed, what is known as the Webb-Kenyon law of March 1, 1913, 37 Stat., 699, was passed by Congress. This occurred prior to the enactment of the Act of August *Page 288 21, 1913, the present Allison law. One of the main objects in amending the original was to expressly take out those provisions in the first Act which restricted it to intrastate matters alone, and the new Act throughout, in all of its provisions, distinctly and expressly shows that it was intended to apply and does apply to interstate as well as intrastate matters as I have shown above.
Appellant also contends that said Webb-Kenyon law does not authorize said Allison law to apply to an interstate transaction, nor give the Texas courts jurisdiction over the carrier or its agent in the transportation or delivery of intoxicating liquors, but if it does, then said Webb-Kenyon law is unconstitutional.
No court other than that of the Supreme Court of the United States could authoritatively determine the question of whether or not the said Webb-Kenyon law is unconstitutional. While this is true, as the question is raised in this case, and it is necessary to be decided by this court in order to determine this case, the question must necessarily be passed upon. As I view the law and the rules, I would not be authorized to declare said Act unconstitutional, unless it was so clearly and indisputably so that there could be no reasonable doubt thereof. In other words, if there was a reasonable doubt of its constitutionality it would be my duty to solve that doubt in favor of its constitutionality. However, I entertain no doubt of its constitutionality.
The Constitution of the United States, article 1, section 8, is: "The Congress shall have power: . . . 3. To regulate commerce . . . among the several States. . . ." As I understand, without citing them, the decisions of the Supreme Court of the United States, before the Wilson Act was passed, established and settled that under this provision of the Constitution, the shipment of any article of commerce originating in one State, was protected and held to be an article of interstate shipment from the time and place of its original shipment, not only to the delivery thereof to the consignee in another State, but until the sale thereof in the original package by the consignee, and that no State law could attach thereto, nor the owner be affected thereby, until after the sale of such article in the original package by the consignee. At once after this doctrine was held and settled by the decisions of the United States Supreme Court as to intoxicating liquors (Leisy v. Hardin, 135 U.S. 100) in order to avoid the effect thereof Congress passed the Act approved August 8, 1890, known as and called the Wilson Act. By which Congress removed intoxicating liquors as an article of interstate commerce, shipped from one State into another, upon its arrival, in the other State, and permitted the laws of the arrival State to take effect thereabout as the laws of that State did to other intoxicating liquors which was not an interstate shipment, and the court held that that Act of Congress so removing the article from interstate commerce was constitutional. (In re Rahrer, 140 U.S. 545.) Later, in 1897, the question arose as to the proper construction of the Wilson Act as to when intoxicating liquors arrived in the delivery State, so that the State laws could apply thereto. The judges of the *Page 289 Supreme Court of the United States differed as to this, the majority, however, holding in Rhodes v. Iowa, 170 U.S. 412, and other cases, that by the Wilson Act what was meant by the arrival of an interstate shipment of intoxicating liquors, was thedelivery thereof to the consignee, and not when it crossed the State line in the arrival State, so that the protection as an interstate shipment was only cut off after delivery to the consignee and before its sale in the original package. And such has been the construction of said Wilson Act up to the time of the passage of the Webb-Kenyon law. This construction caused the enactment of the Webb-Kenyon law.
By the first section of the Act of Congress of March 2, 1895, chapter 195, it was made an offense for any express company, a common carrier, to carry lottery tickets front one State to another. The constitutionality of that Act was attacked, claiming that under the said constitutional provision authorizing Congress to regulate commerce, Congress did not have the power to prohibit an article of commerce from being so shipped. In what are called the Lottery Cases (188 U.S. 321), the Supreme Court of the United States expressly held that a lottery ticket was an article of commerce, but that Congress under said provision had the right and power to prohibit the interstate shipment thereof, and completely sustained the constitutionality of said Act of Congress. The principles announced in the Lottery Cases have been adhered to by the United States Supreme Court ever since.
Then we have completely established:
1. Originally, before Congress acted, as held by the United States Supreme Court, intoxicating liquor shipped from one State into another was an interstate shipment like any article of legitimate merchandise, and protected from the laws of the State wherein received, until the consignee thereof not only received, but also sold, it in the original package.
2. As soon as this doctrine was established by the decisions of the United States Supreme Court, Congress acted and passed the Wilson Act declaring "that all . . . intoxicating liquors transported into any State . . . or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State, . . . be subject to the operation and effect of the laws of such State . . . enacted in the exercise of the police powers to the same extent and in the same manner as though such liquors had been produced in such State . . . and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." 26 Stat., 313. That statute has expressly been held constitutional by the United States Supreme Court. The effect of this Act, expressly so held by the United States Supreme Court (In re Rahrer, 140 U.S. 545: Rhody v. Iowa,170 U.S. 412, and other cases) was to make intoxicating liquors subject to the laws of the States as soon as it arrived in the State.
3. That later the question arose as to when such interstate shipment of intoxicating liquors arrived, — whether as soon as it crossed the State *Page 290 line or not until it was delivered to the consignee thereof beyond the State line. The United States Supreme Court held that such interstate shipment of intoxicating liquors by the terms of the Wilson Act had not arrived until it was actually received by the consignee thereof at its destination within the receiving State, even beyond the State line; thereby holding that the said Act was intended and made intoxicating liquor cease to be an interstate shipment, not at the State line, but upon its actualdelivery to the consignee, but before a sale thereof by him in the original package.
4. Before this the Supreme Court of the United States established by its decisions that the Congress under its constitutional power to regulate interstate commerce, had the power and authority to prohibit an article of commerce, — lottery tickets — from being shipped from one State into another. Clearly intoxicating liquors could and should be classed in the same category as lottery tickets, or worse.
5. Because the United States Supreme Court held under the Wilson Act Congress meant that intoxicating liquor did not arrive when the shipment crossed the State line, it passed the Webb-Kenyon law, which clearly prohibits and makes illegal, the shipment of intoxicating liquor from one State into another whenever such liquor is to be received, possessed, sold, or inany manner used, in another State, when by the laws of such State in which delivered, such receipt, possession or use in any manner is a violation of the laws thereof. Thereby clearly making such liquor subject to the laws of the receiving State as soon as it crosses the State line.
6. But if it could, or should, be held, that the Congress does not have the power and authority to prohibit the interstate shipment and delivery, etc., of intoxicating liquor into a prohibition State, contrary to the laws of such State, then certainly the Webb-Kenyon law must be held to be a properregulation of interstate commerce, and perfectly valid. The government of the United States was instituted for the benefit of the several States, and not as hostile to them, or any of them. Nor to strike down any law of the several States enacted for the good of its people under their unquestioned police power. Instead of the United States government being hostile to any or all of the States, it was instituted for the benefit and as an aid to each and all of them.
7. The Allison law, without question, in my opinion, makes it an offense for any person to deliver to any other person in prohibition territory in this State, intoxicating liquors whether shipped from any point without or within this State.
8. In my opinion, the appellant, Peede, in the County of Kaufman, where the prohibition law of this State was in force, knowingly delivered to Laird in said county, intoxicating liquors which had been shipped from a point in Arkansas to Kaufman, in Kaufman County, Texas, which is made an offense under the laws of this State, and he is, therefore, guilty, and should be held and not discharged.
There is nothing in appellant's contention that the Allison law is *Page 291 unconstitutional because it is class legislation. This court has expressly held said Act constitutional. Ex parte Muse, 168 S.W. Rep., 520.
I have been unable to find where any State Supreme Court has held said Webb-Kenyon Act unconstitutional. On the contrary, the Supreme Courts of several States have expressly held it constitutional in very able, clear, forcible and exhaustive opinions. I refer to State v. Greer, 88 Atl. (Del.), 579; State v. U.S. Exp. Co., 145. N.W. (Iowa), 451; State v. Doe, 139 Pac. (Ks.), 1169; Amer. Exp. Co. v. Beer, 65 So. (Miss.), 575, and the Chief Justice, in a concurring opinion in State v. Cardwell, 81 S.E. (N.C.), 628, and the Federal Judge, Bean, in U.S., etc., v. Ore.-Wash. R.R. Co., 210 Fed. Rep., 378, expressly so hold. The Supreme Court of Alabama in effect so held in So. Express Co. v. State, 66 So. 115.
I can not close this already too lengthy opinion without expressing my appreciation of the very able briefs by Hons. S.J. Osborne and W. Dorsey Brown for Mr. Peede, and of Hons. W.A. Keeling and C.M. Cureton, Assistants Attorney General, on behalf of the State, and the great aid I have received therefrom.
ON REHEARING. November 18, 1914.