The elaborate argument in the motion for rehearing to the point that Art. 588 I/2a of the Penal Code, as contained on the Complete Statutes of Texas, 1920, is void because of its incompatibility with the United States statute known as the Volstead Act and with the Eighteenth Amendment to the United States Constitution, relates to a matter which is not open to debate, inasmuch as it has been settled against the contention of the appellant by the decisions of the Supreme Court of the United States, as illustrated by the State of Maine v. Gauthier, 121 Me. 522, 118 A. 380, 26 Amer. Law Rep. 652; Chandler v. State, of Texas, 260 U.S. Rep. 708. Texas cases to this effect are collated in the citations in Ex parte Gilmore, 88 Tex.Crim. Rep., 228 S.W. Rep. 199, which citations are found in Shepard's Southwestern Reporter Citations, p. 1500. Many other cases are found in the notes in 26 Amer. Law. Rep. p. 661. The identical question was decided against the appellant's contention by the Supreme Court of the United States. See U.S. Sup.Ct. decision cited in Goforth's case, 269 S.W. Rep. 98.
The attack upon the validity of the article mentioned upon the ground that in adopting the amendment to Sec. 20, Art. 16, of the Constitution of this State, the procedure designated by the Constitution was no followed, is in substance the same as was reflected by the record in the case of Manos v. State, 263 S.W. Rep. 310, in which this court expressed the opinion adverse to the appellant. In the present case, however, no facts are found showing the manner of publishing notice of the election on the amendment. In the Manos case, supra, it was said:
"If in the conclusions stated we should be mistaken, the clause of the statute forbidding the possession of intoxicating liquor for the purpose of sale . . . would nevertheless find support in the Eighteenth Amendment to the Constitution of the United States."
So, likewise to transportation. In that amendment, the manufacture, transportation and sale of intoxicating liquors for beverage purposes were forbidden, and "Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." No doubt is entertained by this court of the legislative power to enact the statute upon which this prosecution is founded independent of Sec. 20, Art. 16 of the Constitution of this State. Whether that clause, as it now appears in the Constitution, was legally or illegally adopted, the power to enact the law would come from the paramount law of the land — the Constitution of the United States, as embraced in the Eighteenth Amendment. Upon the subject, see Rhode Island v. Palmer, 253 U.S. 350; Ex parte Gilmore. 88 Tex.Crim. Rep., 228 S.W. 199; Chandler v. State, 260 U.S. 708, 67 L. Ed. 474; also citation of authorities in notes in 26 Amer. Law Rep. pages 652 and 673. *Page 474
We find no occasion to review the other points raised in the motion as they have been fully considered and in our judgment were properly disposed of in the opinion on the original hearing.
The motion for rehearing is overruled.
Overruled.