Untitled Texas Attorney General Opinion

THEATTORNEYGENERAI.
OF TEXAS

Honorable W. H. Pier&t Opinion No. ~~-1068
Chairman, Liquor Regulations Committee
House of Representatives Re: Constitutionality of proposed
Austin, Texas amendment to H. B. 69 of the
57th Legislature, 1961, smend-
ing Subdivision (8) of Section
15 of Article 1 of the Texas
Liquor Control Act, Article
Dear Mr. Pieratt: 666-15,Subdivision (8) V.P.C.

Your letter of April 20, 1961, requests the opinion of this Depart-
ment as to the constitutionality of a proposed amendment to H. B. 69 relat-
ing to Subdivision (8) of Article 666-15,V.P.C.

The proposed amendment attempts to substitute for Subparagraph (e)
of Subdivision (8) the following:

"(e) Any package store which is located in or on
premises in which other business shall be the principal
business, except those package stores located in hotels,
hotel buildings ordrug stores, shall be so arranged and
constructedin such a manner that the said package store
may be closed under lock or locks by use of sliding doors,
show cases, partitions, or other adequate means; and the
same shall be so closed and locked except during the
hours of legal sales."

Before discussing the pertinent parts of Subdivision (8) we respect-
fully call your attention to the fact that the above amendment is not properly
provided for in the caption of the bill. Your caption to H. B. 69 reads in
part as follows:
II
...so as to provide that an adequate building for a
package store shall be one opening on a public street or
thoroughfare and containing no other principal business
other than the liquor business; ...'

Section 20(a), Article XVI, Constitution of Texas, authorizes the
Legislature to enact laws to carry out its purposes. Such was done and the
Texas Liquor Control Board directed to enforce the laws enacted by the Legis-
lature relating to the sale of intoxicating liquors. This section of the
Hon. W. H. Pieratt, Page 2 (w-1068)

Constitution grants to the Legislature the authority to place into law
any type of authority not inconsistent with the Constitution of the State
of Texas or the United States. The courts have liberally construed this
constitutional provision and have affirmed the vested authority granted
to the Legislatureswith relation to enforcement of the liquor laws.

Section 20(a), Article XVI of the Constitution is here quoted:

"The open saloon shall be and is hereby prohibited.
The Legislature shall have the power, and it shall be
its duty to define the t&rm ,'opensaloon'.and enact
laws against such.

"Subject to the foregoing, the Legislature shall
have the sower to regulate the manufacture, sale,
possession and transportation of intoxicating liquors,
including the power to establish a State Monopoly on
the sale of distilled liquors."

In 1935 the Legislature passed the Liquor Control Act creating the'
Liquor Control Board as the enforcing agency. The Texas Liquor Control Act
is found in Chapter 8, Title 11,~Volume IA, V.P.C. and extends from Article
666-l through Article 667-31.

Section 3, Article 1, Codtitution of Texas, provides as follows:

"All free men, when they form a social compact, hsve
equal rights, and no man, or set of men, is entitled to
exclusive separate public emoluments, or privileges, but
in consideration of public services."

Section 1 of the 14th Amendment to the Constitution of the United
States is as follows:

"Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State where-
in they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State de-
prive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws,"

In 6 Tex. Jur. Supp. 377, Intoxicating Liquors, Sec. 4, it is said:

"The Liquor Control Act is a comprehensive statute,
carefully drawn by the Legislature, and predicated upon
r

Hon. W. H. Pieratt, Page 3 (ww-1068)

an exercise of the police power for the protection of
the welfare, health, peace, temperance, and safety of
the people of Texas..."

We take notice of the fact that there are numerous package store
permits granted under Subdivision (8) of Article 666-15, V.P.C., in which
the permit holder is authorized to sell liquor where the permittee operates
on premises where the sale of liquor is not the "principal business." Pack-
age store permits~have been issued to drug stores, grocery stores, hotels,
and in buildings where there are numerous other principal businesses and
in which the permit holder's volume is not the "principal business" in the
building. There are numerous other classifications falling in this category,
in the naming of which we are not primarily interested. However, the vast
majority of package store permits are issued to stores that sell liquor
only and which are locked during hours when sale is prohibited.

Many of the above described package store permit holders have their
stock of liquors exposed and the facilities are not adequate to place the
goods under lock and key during the hours when it is illegal to make sales.
Proposed amendment (e) of Subdivision (8), supra, undertakes to exempt those
package stores located in hotels, hotel buildings or drug stores from the
requirement of providing facilities to close the package store and keep same
locked except during the hours of legal sale.

The police power is a grant of authority from the people to their
governmental agents for the protection of the health, the safety, the com-
fort and the welfare of the public; however, the police power is subject
to the limitations imposed by the Constitution. Spann v. City of Dallas,
111Tex. 350, 235 S.W. 513 (1921).

We must look to the classification created, which would result from
the passage of the above proposed amendment, in order to determine whether
or not same would be construed as "class legislation" and be of such a
nature as to render it unconstitutional, both as to Section 3, Article 1,
Texas Constitution,and the 14th Amendment to the United States Constitution.

In 12 Am. Jur. 144-146;Constitutional maw, Sets. 478, 479, it is
said:

"§ 478. Application of Law to all Members. - A
fundamental principle involved in classification is that
it must meet the requirement that a law shall affect a-
like all persons in the same class andunder similar con-
ditions. If a classification in legislation meets the pre-
requisites indispensable to the establishment of a class
that it be reasonable and not arbitrary, and be based upon
substantial distinctions with a proper relation to the
objects classified and the purposes sought to be achieved,
Hon. W. H. Pieratt, Page 4 (W-1068)

as long as the law operates alike on all members of the
class which includes all persons and property similarly
situated, it is not subject to any objections that it is
special or class legislation, and is not a violation of
the Federal guaranty as to the equal protection of the
laws. Hence,,while classification is proper, there must
always be uniformity within the class. If persons under
the same circumstances and conditions are treated differently,
there is arbitrary discrimination, and not classification.

'3 479. Completeness of Inclusion of Members. - In order
for a classification to meet the requirements of constitution-
ality, it must include or embrace all persons who naturally
belong to the class..."

The same authority on pp. 151-153, says:

"§ 481. Substantial Differences: Proper Relationship
to Object. - The general rule is well settled by unanimity
of the authorities that a classification to be valid must
rest upon material differences between the persons in-
cluded in it and those excluded and, furthermore, must be
based upon substantial distinctions. As the rule has
sometimes been stated, the classification, in order to
avoid the constitutional prohibition, must be founded
upon pertinent and real differences, as distinguished
from irrelevant and artificial ones. Therefore, any law
that is made applicable to one class of citizens only must
be based on some substantial difference between the situation
of that class and other individuals to which it does not
apply and must rest on some reason on which it can be de-
fended.

Acts k2nd Leg. R.S; 1931, ch. 350, in an attempt to classify certain
counties as coming under the act to the exclusion of other counties was held
to have no reasonable basis to support the action of the Legislature in its
attempt to single out threes(3) of several counties of the State of Texas
who are engaged in producing and marketing citrus fruits in common with the
excluded counties. The excluded counties produced the same fruit under the
same circumstances as those .of the favored counties and thus the act fell as
an improper classification under the Constitution. (Atty. Gen. Op. o-3363).

The court in San Antonio Retail &c&grs v. T&&z& 156 Tex. 474,
297 S.w.2d 813 (1957) held the "Sales Limitation Act" which was intended
. the-practice of attracting customers through sale of "loss
to prohibit
leaders" invalid as denying equal protection of the laws on the ground that
Hon. W. H. Pieratt, Page 5 (y-1068)

there was no reasonable basis for applying the provisions of the act to
grocery stores and exempting other stores therefrom.

In 9 Tex. Jur. 551, 555, 561, Constitutional Law, Sets. 115, 119
and 122, we find the following:

y 115. Constitutional Provisions in General. - The
constitution of the state of Texas (art. 1, $ 3) guarantees
to all persons equality of rights; and the federal constitu-
tion (fourteenth amendment) secures to every person equal
protection of the laws. The latter provision is a pledge
of the protection of~equal laws; it was designed to prevent
any person or class of persons from being singled out as a
special subject for discriminating and hostile legislation.

"AS to what satisfies this equality has not been and pro-
bably never can be precisely defined. Generally it has been
said that it only requires the same means and method to be
applied impartially to all the constituents of a class, so
that the law shall operate equally and uniformly upon all
persons in similar circumstances..." (Emphasis added?)

"I$119 . Generally. - The legislature is conceded to
have~authority to classify subjects of legislation; nor
is a law open to objection if it applies uniformly to those
who are within a particular class. The constitutional pro-
visions do not require that no burdens shall be imposed up-
on one class of persons that are not imposed upon all classes,
but only that burdens so imposed shall be applied impartially
to~all constituents of a class, so that the law shall operate
equally and uniformly upon all persons in similar circumstances.

"'It seems well settled that the Legislature, and munici-
palities that in this respect have like power, may determine
what ~differencesand situations, circumstances and needs call
for difference in classification, subject to the supervision
of the courts as the final interpreters of the Constitution
to see that it is actual classification and not special legis-
lation under the name.'

"§ 122. Laws Applicable to Particular Classes. - As
against attack on the score of discrimination, the courts
have sustained statutes designed to apply to a variety of sub-
jects. Laws may be made to extend to all citizens, or be con-
fined to particular classes,-as minors, married women, bankers,
Hon. W. H. Pieratt, Page 6 (WW-1068)

common carriers, and the like. A particular business may
require special statutory provisions, and if laws relating
thereto be otherwise unobjectionable, all that can be re-
quired is that they be 'g&era1 in their application to the
class to which they apply..." (Emphasis added.)

"In some instances, however, laws have been held to be
unconstitutional on the ground of discrimination. A stat-
ute imposing restrictions upon the operation of commercial
motor vehicles, andexempting vehicles used in agricultural
pursuits, has been held to be discriminatory and invalid.
And the same has been held of a statute providing for re-
covery of a penalty and attorney's fees in a suit on an
insurance policy where recovery in any sum may be had,
regardless of whether the demand made of the company be
for a greater sum than is due under the contract."

In the case of Beaumont Traction Co. v. State, 122 S.W. 615, (Civ.
App. 1909) the court said:

"The controlling test of the validity of all laws di-
rected against a particular class may be said to be that
the same means and methods shall be impartially applied to
all the constituents of the particular class, so that the
law shall operate equally and uniformly upon all persons in
the class sought to be regulated." (Emphasis added.)

The above quotations from the text books discuss and properly re-
late the rule that is established by interpretation of the numerous court
decisions of the land. The subject under consideration insofar as it re-
lates to the Federal Constitution, is ably stated in 12 Am. Jur. 133, 176
and 185. The-rules therein stated concur with the rules stated in the
other above texts.

We must look to the proposed amendment in order to try to deter-
mine whether or not the class legislation proposed is of such a nature that
it will meet the constitutional test. The amendment attempts to define a
"class" which applies to "any package store which is located in or on
premises in which other business shall be the principal business except
those package stores 'locatedin hotels, hotel buildings or drug stores,
..a11. This proposed act creates~a classification but the result of the
provisions would in fact create a separate class within the class by except-
ing hotels, hotel buildings and drug stores. From the facts that we have
and a general knowledge of the type of businesses affected by this legis-
lation we cannot see that the few businesses which are exempt under the act
are chosen because of some peculiar condition, circumstance or condition of
Hon. W. H. Pieratt, Page 7 (W-1068)

the premises that would distinguish them from the others of the class.
The singling out of certain businesses as exemptions through the amend-
ment would raise the question as to whether the distinctions are based up-
on a classification resting upon a rational difference which necessarily
distinguishes those of a particular class from those of other classes.
The courts, as stated above, have held that it is vital to the validity
of such legislation that such rational basis must exist, otherwise the
action would constitute an arbitrary one and be violative of the Con-
stitution. The facts appear that package stores in hotels, hotel build-
ings and drug stores are selling the same commodity in the same manner as
the others within the class.

The classification provided for by the amendment is not founded up-
on any substantial difference between the two classes but denies one class
the equal protection of the law by imposing upon it a burden which is not
imposed upon competitors which are engaged in the same pursuit at the same
time and under like circumstances and therefore violates Article 1, Section
3 of the Texas Constitution and the 1kth~Amendment of the United States
Constitution. It grants to others privileges and immunities which, upon
the same terms,.shall not equally belong to all citizens in the class.

You are therefore respectfully advised that it is the opinion of
this Department that the proposed amendment is unconstitutional in view
of the above authorities as constituting an unreasonable and arbitrary
classification discriminating against some permit holders and favoring
others in the same class and denying those in the same class equal protection
of the law.,

SUMMARY

The proposed amendment to H. B. 69 of the 57th
Legislature, amending Paragraph (e), Subdivision
(8) of Section 15 of Article 1 of the Texas Liquor
Control Act, Article 666-15,Subdivision,(8), V.P.
C., is unconstitutional6

Very truly yours,

WIU WILSON
Attorney General of Texas

Harris Toler
Assistant Attorney General

HT/br
Hon. W. H. Pieratt, Page 8 (WW-1068)

APPROVED:

OPINION COMMITTnF
W. V. Geppert,. Chairman

Elmer McVey
Mary R. Wall

REVIEWEZ FOR THEA'ITORNEY GENERAL

Et-i:Morgan Nesbitt