This is an original application for a writ of habeas corpus which, upon hearing, the majority of the court has dismissed, remanding relator to trial.
The indictment contains two counts, the first charging a violation under what is known as the Allison Amended Act, passed by the Fourth Called Session of the Thirty-fifth Legislature, page 55, of said Act. It is framed under Section 3, of that Act, which makes "unlawful for any person to keep or have for personal use, etc., intoxicating liquors within any territory orsubdivision of this State in which the sale of intoxicatingliquors has been prohibited under their Constitution and laws ofthis State. Provided, however, that nothing contained in this section shall prevent one in his home from having intoxicating liquors when such having is in no way a shift, scheme or device to evade the provisions of this Act." The second count is framed under what is known as the State-wide Act passed at the same called session, and is section 3 of that Act, which provides a punishment for the transportation within or importation into thisState by any railroad, common carrier, automobile, by private conveyance, or otherwise, or the receipt of any spirituous, vinous, or malt liquors or medicated bitters — capable of producing intoxication, or the receipt of same by any person, firm or corporation, for such transportation, or the delivery of same after such transportation — except for medicinal, scientific, mechanical or sacramental purposes.
The second count alleges that relator did transport whisky in person not coming within any of the exceptions enumerated in that article. The first count, therefore, recites a violation of the local option law, and the other of the State-wide Act. The application alleges that both Acts are unconstitutional, and in violation of Art. 16, Sec. 20 of the Constitution, which is the local option clause.
Applicant's briefs cover practically every phase of the two Acts. Transportation under the Allison law applies only to local option territory. It does not and cannot apply to those portions of the State where local option is not in effect, and the Legislature did not undertake to apply it to the anti-local option territory. If brought under the State-wide Act, it is under an unconstitutional enactment. See Ex parte Myer,84 Tex. Crim. 288, 207 S.W. Rep., 100; Ex parte Hollingsworth,83 Tex. Crim. 400, 203 S.W. Rep., 1102; Dawson v. State, 25 Texas Crim. App., 670; Lawhon v. State, 26 Texas Crim. App., 101; Robinson v. State, 26 Texas Crim. App., 82, and State v. Texas Brewing Co., 106 Tex. 121.
The question of the constitutionality of both Acts is squarely raised and presented on the face of the application. These questions are raised with sufficient definiteness to require their consideration and decision. The application for writ of habeas corpus is sufficient to present the illegality of the statutes. It is based upon the proposition that applicant is illegally restrained of his liberty by reason of *Page 159 the unconstitutionality of either or both acts under which he is held, and these are specifically pleaded. My brethern are in error in holding the application is not legally sufficient to present the question. It is not necessary to make up written issues in habeas corpus cases. This may be done by the applicant if he so desires. Art. 208, C.C.P. That article is specific and definite that it is not necessary to make up such issues in writing. Illegal restraint is the issue to be determined. Arts. 181, 182, 183, C.C.P. The right to a writ of habeas corpus is one of right and is not to be circumvented nor hedged in by technical rules of pleading. That right is as broad, as extensive and comprehensive as illegal restraint may mean or imply. This is fixed definitely by statute. See articles, supra, and also Bill of Rights, Art. 1, Sec. 12, which provides: "The writ of habeascorpus is a writ of right, and shall never be suspended. The legislature shall enact laws to render the remedy speedy and effectual." Applicant has fully brought himself within the law which requires this court to give him a full hearing on his detention. I cannot, therefore, concur with my brethren in dismissing this application, nor their reasons for so doing. Both Acts of said Fourth Called Session, Chap. 24 and Chap. 31, ought to be held void because enacted at a called session of the Legislature without authority from the Governor, specified either in his call or communication by him to that body during its sitting. Art. 4, Sec. 8, of the Constitution ordains that the Governor may, on extraordinary occasions, convene the Legislature, etc. His proclamation, therefore, must state specifically the purpose for which the Legislature is convened. This is mandatory. Art. 3, Sec. 40 of said instrument provides: "When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session, or presented to them by the governor; and no such session shall be of longer duration than thirty days."
An inspection of the proclamation issued by the Governor, and communications by him to the Legislature, fails to disclose any suggestion, as I understand, that he desired their consideration of matters contained in the State-wide Act or in the Allison bill. The nearest possible approach to such matters is to be found in the following language:
"I am not unmindful of the fact that as a means of accomplishing the results here sought, many people advocate statutory state-wide prohibition, with more or less confidence in its ultimate success. I do not assume for a moment to pass judgment upon the constitutionality of such a law, yet all admit that eminent lawyers have expressed the opinion that a law along this line is in conflict with the Constitution of the State.
"The Zone Law, however, is deemed to be in the nature of a regulatory rather than a prohibitory act, and involves merely the exercise *Page 160 of that police power with which the State is fully clothed to deal with the barter, sale and exchange of liquor. In other words, it is indicated that statutory prohibition would offer the possibility of vigorous contest in the courts, while a zone law would not be open to successful attack through court procedure.
"The need of the hour is immediate for efficient suppression of an admitted evil. The measure that is strong because of its certainty is to be preferred over a measure that in reaching too far may incur the risk of failing entirely."
A fair and a reasonable construction of this language does not convey but excludes the idea that the Governor submitted or intended to submit state-wide prohibition, or the prohibition of the manufacture of intoxicants for legislative action, and he nowhere alludes even to amending the local option statutes. The only idea of the Governor evidenced by his call and communications was that it was a pressing necessity to have the Legislature pass laws to prevent the obtaining of intoxicating liquors by those engaged in the military service of the United States in and about military zones. By no rule of construction can this be extended to include the entire population of the State. He was seeking only to have the Legislature prevent the soldiers from obtaining intoxicants within specified limits. His purpose was and is specific, and confined only to that one purpose. No inference can be drawn from what he wrote that it was his purpose for the Legislature to repeal or amend statutory provisions with reference to local option. It was clearly not his purpose to set aside and hold for naught the local option law operative in the many sections of the State by virtue of the vote of the people. The Legislature enacted laws in accordance with his wishes, to prohibit the sale to soldiers and those engaged in the military service of the United States government. There was also an enactment to punish for selling to soldiers anywhere in Texas; as well as in certain zones. But both acts limited operation to soldiers, and only to soldiers, as called for by the Governor. He nowhere directly or indirectly, by innuendo or otherwise, intimated that sales should be prohibited to the citizenship of the State. It was only the soldier he mentioned. It is all sufficiently plain that he did not and could not ask for an abolition of the local option laws and their repeal. This was settled in Ex parte Hollingsworth, supra. By reason of Art. 16, Sec. 20, the State was divided into two classes of territory, one in which the people by referendum vote could adopt prohibition. All other territory in the State is in another and distinct class not operative under prohibition but under regulation. This is expressly recognized and held in Ex parte Hollingsworth, supra. It is again so held in Ex parte Myer,supra. It is the recognized and settled doctrine in all cases from Robertson v. State, 5 Texas Crim. App., 155, where the question has come before the court. It was again so *Page 161 declared since the opinion in Ex parte Myer, in Jarrott v. State, 84 Tex.Crim. Rep.; 209 S.W. Rep., 663, and White v. State, 84 Texas Crm. Rep., 545; 210 S.W. Rep., 200, recently decided. This division of territory was tersely stated by Judge Hurt in Ex parte Fields, 39 Texas Crim. Rep., at page 54, in the following language:
"Anti-prohibition is in force in every county, justice precinct, town, etc., in this State, unless voted on at an election held for that purpose. It requires no act to put in force the right to sell intoxicating liquors. This right was not conferred upon the people of the counties, justice precinct, etc., by the Constitution; but the right to prohibit the sale of intoxicating liquors was conferred upon the county, justice precinct, etc. Now we state this proposition: That, until the Legislature repeals the acts enforcing this right, there is no power within this State to prohibit the county from declaring by an election that the sale of intoxicating liquors shall be prohibited therein."
It is to be presumed that the Governor understood this when he issued his call under a well-known axiomatic rule. That these two classes of territory exists is not the subject of debate, and that they must be controlled by different legislation is equally nondebatable. A law that prohibits the sale of intoxicants in a local option territory has absolutely no application to anti-prohibition territory. Nor has a law operative in anti-prohibition territory any force or effect in prohibition territory. These two propositions are divided by as impassable a gulf as that which separated Dives and Lazarus. They cannot occupy the same territory at the same time any more than two bodies can occupy the same territory in physical nature. The governor recognized this and only submitted the regulation idea to the exclusion of the State-wide prohibition proposition. This, he said, was done to avoid litigation which would arise from passing a State-wide act of prohibition. His idea was to throw the same protection around the soldiers that protects minors. The question sometimes presents difficulty in deciding just what subjects are covered by the call or communication of the Governor; at least the courts seem to find trouble with reference to these matters. It seems clear that where the Governor submits generally a subject, the Legislature would be empowered to enact legislation that would carry into effect inferior matters included in the main proposition, but where the Governor submits only the minor proposition, the rule is that the Legislature cannot enlarge to cover a broader and not included superior question. In other words, where the general subject is submitted, the Legislature is at liberty to fully deal with it generally, otherwise not. This it emphasized by reason of another proposition, that is, that special sessions are called only onextraordinary occasions, and only to bring about new legislation to meet emergencies. The only *Page 162 supposed emergency moving the Governor, he says, was protection of the soldiery. Among cases cited by the State and by my brethren to sustain the legislative act is Brown v. State,32 Tex. Crim. 119. The writer wrote that opinion and sought to familiarize himself with the question at the time the opinion was written. In the light of what has been said, I have re-read that opinion and the reasoning upon which it was based. I see no reason to change the views I then expressed or thought were in harmony with the law or what ought to be the law. That opinion and its reasoning does not apply to the question here at issue. In that case it is shown that the Governor called an extra session of the Legislature for the purpose of reapportioning the State into judicial districts. This covered the subject of such reapportionment throughout the State. It covered all such districts. The judicial district in which Bastrop county happened to be located was reorganized under said call. It was held the Legislature had that right under the general call. It was one of the judicial districts of the State and the Governor's call included all and authorized the Legislature to reapportion all or any of the judicial districts. Bastrop district was one of the districts and, therefore, subject to legislation under the call. But, suppose the Governor had in his call limited the Legislature to a reorganization only of the district in which Bastrop county was situate? Would the same rule apply, and would it be contended that under such call the Legislature would be empowered to reorganize every district in the State? Certainly not. It would be stretching legislative power beyond the authority in the call. The Baldwin case, 21 Texas Crim. App., 592, and the Long case,52 Tex. Crim. 209, come within the same rule.
It will be noted that the Governor did not in any communication authorize State-wide prohibition legislation as to intoxicating liquors. All legislation authorized by him was regulating in nature and limited in purpose. Why the zone law was enacted may not readily be explained, in view of the fact that a general act had been passed prohibiting selling to soldiers everywhere within Texas. It occurs to the writer that when the Legislature had prescribed a punishment for securing whisky in any form whatever for soldiers, it includes every soldier in the service within the confines of Texas, whether in or out of a zone. If within dry territory both laws would be inoperative. It is settled in Texas that where intoxicants are sold to minors in a local option territory, the prosecution is for violation of the local option law, — not under the statute prohibiting sales to minors. Atkinson v. State, 46 Tex.Crim. Rep.; Stephens v. State, 47 Tex.Crim. Rep.; Tracy v. State, 48 Tex. Crim. 50; Tompkins v. State, 49 Tex.Crim. Rep.; Kerr v. Mohr, 47 Texas Civ. App. 3[47 Tex. Civ. App. 3]. This is based upon the proposition that the local option law supersedes all manner of selling intoxicants in such territory. This is so thoroughly settled it is useless to discuss it or cite other authorities. *Page 163
There is a contention that because the Governor approved the State-wide act, therefore it should be held as coming within his call. An inspection of the Governor's action and language approving this bill does not sustain this contention. It would seem useless to discuss this because in no event could his approval of the act relate back and include it in his call. It cannot thus be given vitality. It must be included in the call or in some communication by him to that body in order to justify legislative action. Casino v. State, 34 S.W. Rep., 796; Wells v. Mo. Pac. Ry., 19 S.W. Rep., 530. I deem it unnecessary to discuss it. The Governor in his approval of that bill, after speaking of the war and his desire to uphold the hands of the Secretary of War, and guard and protect the soldiers from themselves and those who would secure intoxicants for them, uses this language: "The object I had in view in submitting liquor legislation to the Legislature at this time was to protect the soldiers, but the Legislature in its wisdom has seen fit to include the whole State; therefore, to prevent discrimination and to cause whatever sacrifice is involved to be more evenly distributed than is provided in the Zone Law, I approve this Act adopting prohibition for all, leaving the question of constitutionality which many lawyers have raised to be determined by the courts." This language is sufficiently definite to show the purpose of the Governor both in calling the session and in approving this bill, if this be an approval. His purpose was to submit only regulatory legislation and this only to protect soldiers, not State-wide prohibition, nor local option legislation. It is his express declaration. The Legislature did that "in their superior wisdom" in furtherance of their common designs, not that of the Governor's. He had limited such legislation to soldiers and the protection of military employes. In any event, if he approved it directly, positively and unequivocally, that fact could not give it vatility and relate back to or include it in his call or some communication. See Casino v. State, and Wells v. Mo. Pac. Ry., above cited. It must be within the call or communication, for authority to legislate.
Again, there is no suggestion that I have been able to discover in his call or communication that authorized local option legislation. Local option covered territory where the people had voted it into existence. Even the zone law could not in such territory be operative. Cases cited, supra. Ex parte Hollingsworth, Ex parte Myer, Jarrott v. State, and White v. State, supra. From no viewpoint could local option legislation be included in the call for zone legislation, nor could State-wide prohibition. Neither State-wide nor local option are regulatory. So from any viewpoint the amended Allison bill falls outside of the breast works. It is not to be presumed that the Governor would submit such antagonistic legislation to the same Legislature at the same time to be enacted in direct opposition to *Page 164 each other. Nor is it to be presumed that he intended to place himself in the attitude of submitting to the Legislature a State-wide act of prohibition for their consideration which would cover the entire State to the destruction of local option, and at the same time submit local option legislation. Presumably he would understand their antagonism and incompatibility, and that both could not exist in the same territory at the same time. Ex parte Myer, supra.
Another question urged is that these laws are so antagonistic and at variance with each other, and in such conflict, that it is impossible to tell which is really intended to operate. In other words, that by reason of these conflicts and incongruities they cannot occupy the same space at the same time. By looking at the legislative Acts of the Fourth Called Session, it will be noted that that body enacted a license law found on page 9, which is an amendment to Art. 611, P.C., and prohibits anyone except licensed dealers to sell directly or indirectly spirituous or vinous liquors capable of producing intoxication in quantities of one gallon or less. On page 10, Art. 612, P.C., was amended with reference to the sale of malt liquors, and fixed a penitentiary punishment for its violation. Under these Acts the citizen is authorized to sell under license. There are other Acts of the Legislature which I deem unnecessary to notice, known to the bar and bench and people of Texas as the Fitzhugh-Robertson law, under the provisions of which, in non-local option territory, parties could sell under license. These two acts are amendments to those and regulatory. They are not prohibition laws. They are in direct antagonism to the State-wide Act. Under one law a party could sell, and under the State-wide Act he would be punished if he did sell. So if a party complied with one law he would be convicted as a felon and put in the penitentiary under the other act. Sec. 6b of the State-wide Act expressly repeals all license laws and prohibits courts and officers from renewing any license or issuing any license for the selling of intoxicants. These acts were passed by the same body at the same session. Sec. 7 of that act cumulates all former legislation with the State-wide act, however much in conflict.
Then on page 11 is found an Act of that Legislature punishing anyone in Texas who directly or indirectly shall purchase for, or procure for, sell, give or deliver, or cause to be given or delivered to any person engaged or enlisted in the military service of the United States, any intoxicants. This was enacted for the purpose of protecting soldiers, and punishes anyone who secures for them intoxicating liquors. If the State-wide act is constitutional, it embraces the same matters as does the above act, and if the State-wide act is valid, the party could only be convicted or prosecuted under the State-wide act. Cases already cited. These Acts are repugnant — in conflict. *Page 165
It will be noted that the State-wide Act also prohibits the transportation of intoxicants, or the solicitation of orders for the sale of intoxicants. This seems to cover practically the same matters as that just quoted. It applies to everybody in the State, soldiers included, whether in or out of a zone. The State-wide act would include citizen and soldier.
There are other laws with reference to license, when and how such license can be obtained and operated. To these the same reasoning would apply. These laws would all fall under the condemnation of the State-wide act. The State-wide Act prohibiting selling, etc., would substitute and supersede all other prohibitory laws, and necessarily abrogate regulatory laws.
Again, on page 55 of the same Acts of the Legislature, is found what is called the Amended Allison Bill. This prohibits the shipment and transportation and other matters of intoxicants in local option territory. That Act is predicated upon the proposition that there is local territory, and that the Legislature might apply suitable legislation. State-wide and local option prohibition cannot exist in the same territory. They directly conflict.
Two things might be stated here: first, that the Governor did not submit local option legislation, and, second, it is in direct conflict with the State-wide Act, and the State-wide Act is in direct conflict with it. If the State-wide Act is constitutional, local option laws as well as the local option clause of the Constitution would cease to exist. The State-wide Act, if valid, repealed the Constitution and all legislation under it, and wiped out every local option district in Texas where the law had been voted into operation by the people. The two Acts cannot stand. Speaking from an unbroken line of authority, there is not a dissent from the proposition that the local option law would be supreme and the State-wide Act void. This court has taken that view in all of its decisions, and the courts in Texas have so held. There is a conflict here between the State-wide Act and the Amended Allison Bill. It is not thought necessary to discuss the incongruities of the Allison Act within itself. They are patent. For instance, it would be difficult to comprehend how a party would be authorized to carry intoxicants from a point where he is authorized to purchase it to a point inside of local option territory without some means of carrying it. If he does carry it he is to be sent to the penitentiary. If he carries it by any of the means mentioned in the statute he becomes a felon, and yet the same law authorizes him to carry it to his own home for his personal use and that of his family. I shall not stop to discuss other incongruities. The State-wide Act was passed for the general, broad, and only purpose of making Texas in its entirety a dry State. In other words, to enact State-wide prohibition so as to cover every inch of territory in the State. As a means of doing so it prohibits the barter, sale or exchange *Page 166 of intoxicants within the boundaries of Texas. It prevents the manufacture of intoxicants as an aid and one of its ingredients and necessary elements; it interdicts transportation in order that there could be no sale; that there shall be no solicitation of orders for transportation of intoxicants, and the prevention of cold storages. These are all specified in the act. Therefore, the act does not divide the State into two divisions of territory, one wet and the other dry. It could not operate in local option territory, and it does not pretend to confine its operation to wet territory. But if it did otherwise, the law would be clearly unconstitutional. This has been so held even by the recent decisions of this court. There was but one main purpose of this Act, and that was to create State-wide prohibition. The other matters mentioned, to-wit: barter, sale and exchange, and the manufacture, and solicitation of orders and cold storages, were included to consummate and bring about the main purpose; that is, to make the State entirely and completely dry. The provisions of this Act are not severable. They cannot be separated from the main purpose. If one stands, all must stand in order to bring about and carry out the purpose of the Legislature. If one falls, all must fall. The Act as an entirety must stand or fall. It was the purpose of the Legislature by that Act to make the State entirely dry; to not only prohibit the sale but also the manufacture, transportation, and solicitation of orders, and cold storages. The purpose of the Act would otherwise be defeated. The prohibition of the transportation of intoxicants was but one of the means by which the State was to be made completely dry. The prohibition of the sale only would not accomplish that purpose. It was deemed as necessary to prevent manufacture and transportation as it was to prohibit the sale. So with reference to solicitation of orders and cold storages. So it will be seen that the legislative purpose will be defeated if these provisions are severable. These provisions are so interwoven that one cannot be eliminated without destroying the purpose of the whole. The purpose of the Legislature, that is, State wide prohibition, cannot be carried out as intended with either eliminated. If the act is valid, it must be in its entirety, otherwise State-wide could not be carried into effect as intended by the Legislature. When several parts of an act are dependent one upon the other so that it cannot be presumed that the Legislature would have passed the Act without intending all should stand, then the whole Act must fall if part of it is unconstitutional. Western U.T. Co. v. State, 62 Tex. 630; Ex parte Massey, 49 Tex.Crim. Rep., 65; State v. Hamry, 65 S.W. Rep., 949; Ex parte Woods, 52 Tex.Crim. Rep..
The reasoning would be stronger where all the provisions are a part of and necessary to carry out and put into effect the main purpose of the Act, and in this Act its only real purpose. In such *Page 167 case each provision would be necessary to consummate such purpose, without which the Act would fall short of and fail as to such purpose.
There are a great many other Acts of the Legislature in conflict with this act which it is deemed unnecessary to discuss, as it would render the opinion quite lengthy. Some of these statutes may be found in the Revised Statutes, Arts. 7379, 7393, 7394, 7479, 7480, 7483, P.C., and Arts. 606, 606g and 662i Branch's Ann. P.C., p. 718, and Vernon's Ann. P.C., p. 326. This Act would also repeal Art. 7432, Revised Civil Statutes, and Art. 613, Branch's Ann. P.C., p. 727, which exempts those engaged in the planting or growing of vineyards from shipping, transporting, carrying or delivering any grape juice or wine made by him from grapes so grown. Sec. 6-b would also prevent all officers from granting or renewing license to dealers in non-local option territory and yet Sec. 7 perpetuates the license laws justifying and requiring the issuance of same. In this connection it might be mentioned also that in Ex parte Myer, supra, this Act was held unconstitutional in regard to selling.
Some conflicts in this Act may be mentioned, to-wit: Secs. 6-b and 7. Section 6-b provides that no officer or court shall be authorized to issue or renew any license purporting to authorize the sale of spirituous, vinous or malt liquors, or medicated bitters, capable of producing intoxications, except as provided in this Act, and all licenses heretofore issued for such sale and outstanding when this Act becomes effective shall become null and of no effect, and yet the same Legislature enacted the provisions already mentioned and discussed authorizing issuance of license to sell. Sec. 7 provides that "this act shall be cumulative of all laws in force in the State of Texas, and of all laws of the Fourth Called Special Session of the Thirty-fifth Legislature prohibiting and regulating the sale of intoxicating liquors, and it is expressly provided that no law now in force in this Stateprohibiting or regulating the sale of intoxicating liquors, orany Act of the Fourth Called Session of the Thirty-fifth Legislature prohibiting or regulating the sale of intoxicating liquors is hereby repealed, but all such laws and Acts shall remain in full force and effect." These two sections are directly in conflict, incapable of reconciliation. One prohibits absolutely the issuance of license after revoking all in existence, and prohibits the renewing of such license. The other section expressly perpetuates all license laws in the State of Texas on these subjects, and makes them cumulative of this act. This includes all license and regulatory laws. These enactments cannot be harmonized. They are so irreconcilable they cannot stand. Penal Code, Arts. 1, 3, 4, 6, It may be asked: which of all these Acts and provisions can stand for enforcement? The observance of one means felony punishment under another. Compliance with one would render the citizen a felon under another. Noticing Art. 6 of the Penal Code, we discover this language: "Whenever it *Page 168 appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative." That article would seem to apply with cogency and force to the State-wide act when compared with other mentioned acts, and not only with these other acts but with its own terms and provisions.
The various acts of the Fourth Called Session of the Legislature with regard to prohibition and regulation of intoxicants are so at variance with each other, incongruous and repugnant in their terms and contents, they ought to be held invalid. They are so contradictory of former acts they seek to perpetuate they should for this reason be held nugatory. They are incapable of reconcilization or harmony. The same may be said in respect to their conflict with prior legislation on prohibition and regulation of intoxicants.
There are other questions of serious import which might be discussed to the undoing of the provisions of the State-wide Act in its varied phases as well as the amended Allison act.